



WARNING

The President of the panel hearing this appeal directs
    that the following should be attached to the file:

An order restricting publication in this proceeding
    under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the
Criminal
    Code
shall continue.  These sections of
the Criminal Code
provide:

486.4(1)       Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151, 152, 153,
    153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210,
    211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1,
    286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as it read
    at any time before the day on which this subparagraph comes into force, if the
    conduct alleged involves a violation of the complainants sexual integrity and
    that conduct would be an offence referred to in subparagraph (i) if it occurred
    on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s. 22(2),
    effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt with in
    the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings in respect of the offences
    referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a)     at the first reasonable opportunity,
    inform any witness under the age of eighteen years and the victim of the right
    to make an application for the order; and

(b)     on application made by the victim, the
    prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice may
    make an order directing that any information that could identify the victim
    shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other
    than an offence referred to in subsection (1), if the victim is under the age
    of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of
    their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an offence under
    section 163.1, a judge or justice shall make an order directing that any
    information that could identify a witness who is under the age of eighteen
    years, or any person who is the subject of a representation, written material
    or a recording that constitutes child pornography within the meaning of that
    section, shall not be published in any document or broadcast or transmitted in
    any way.

(4)     An order made under this section does not
    apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

486.6(1)       Every person who fails to comply with
    an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2)     For greater certainty, an order referred to
    in subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. R.S., 2017 ONCA 141

DATE: 20170217

DOCKET: C62099

MacPherson, Rouleau and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

R.S.

Appellant

R.S., in person

Delmar Doucette, as duty counsel

Frank Au, for the respondent

Heard: February 9, 2017

On appeal from the conviction entered on December 18,
    2015 and the sentence imposed on May 2, 2016 by Justice Catherine D. Aitken of
    the Superior Court of Justice.

By the Court:

[1]

The appellant was convicted of human trafficking, receipt of material
    benefits, withholding documents to facilitate trafficking, assault, uttering a
    threat, and breach of undertaking. He received a global sentence of five years
    on the trafficking charge and concurrent sentences of six months to three years
    on the other offences. The global sentence was reduced by 757 days for
    pre-sentence custody, resulting in a net sentence of 35 months.

[2]

The appellant appeals from the convictions and the sentence.

Conviction appeal

[3]

The principal evidence against the appellant was the complainants
    testimony. The complainant (C) was an exotic dancer and escort who worked in
    the Ottawa area. She met the appellant in May 2013. She was 19 years old.
    Between May and September, she worked as an escort, under the appellants
    direction, in Ottawa, Toronto, London and Niagara. She claimed that the
    appellant beat her regularly and kept for himself almost all the money she
    earned from her escort services.

[4]

In her judgment, the trial judge expressed reservations about Cs
    credibility. She listed five specific aspects of Cs testimony that caused her
    concern and then said:

These observations lead me to conclude
    that Ms. C. exaggerated her evidence in a number of respects to increase the
    perception that she was a victim throughout her interactions with Mr. S. and
    that he controlled all of her behaviour over this entire period through
    violence and the threat of violence.

[5]

The appellant contends that the substance and tone of the trial judges
    criticisms of Cs credibility are inconsistent with the convictions on six of
    the counts in the indictment. His position, as expressed by duty counsel, is
    that there is a logical
non sequitur
 between the trial judges criticism
    of Cs credibility and the six convictions.

[6]

For several reasons, we do not accept this submission.

[7]

First, the trial judge is entitled to accept some, all or none of a
    witness testimony. That is precisely what the trial judge did in this trial.
    She accepted a great deal of Cs testimony about the events during her four
    month relationship with the appellant. She rejected or doubted other aspects of
    Cs testimony. She was entitled to engage in this analytical process.

[8]

Second, the trial judge relied on appropriate corroborative evidence to
    support her convictions. The photographs of the complainant supported her
    injuries and there was testimony from a fellow escort supporting some of the
    convictions.

[9]

Third, the trial judge convicted the appellant of some offences.
    However, she also acquitted the appellant of three offences. In our view, this
    underlines the care taken by the trial judge in assessing Cs testimony.

[10]

Fourth, and crucially, the trial judges analysis on the main charge
    that led to the five year sentence  human trafficking  was careful and
    comprehensive and covered the essence of the relationship between the appellant
    and C during their four months together.

Sentence appeal

[11]

The
    appellant does not appeal the global sentence of five years imprisonment. He
    does appeal from the trial judges treatment of pre-sentence custody. On that
    issue, the trial judge said:

[42]    In regard to any credit for
    time served, as of today, R.S. will have been in custody for a period of 689
    days.
Of that time, 553 days elapsed between the day of his arrest on June
    14, 2014 and the date of his conviction on December 18, 2015. I will allow R.S.
    credit for this period on the basis of one for one only. R.S. avoided arrest
    for a period of 10 months after he was aware that the police were trying to
    locate him. His lengthy criminal record, including 11 convictions for failure
    to abide by undertakings, recognizances, or probation orders, resulted in his
    not being released pending trial. R.S. has no one

to blame but himself
    for his failure to make bail
. In regard to the period of time from R.S.s
    conviction until his sentencing today, a period of 136 days, I will allow R.S.
    credit on the basis of 1.5 to one for the following reasons. First, R.S. has
    been housed at the Ottawa Regional Detention Centre and the Lindsay Jail and
    conditions in those institutions are particularly difficult. Second, while on
    remand, offenders are not eligible for the type of programming available in the
    penitentiaries. Third, had R.S. been sentenced immediately upon conviction, the
    clock would have started to run for eligibility for parole, earned remission,
    and statutory release. Although R.S.s behaviour since he has been incarcerated
    has not been exemplary, and therefore his early release prior to the completion
    of his sentence may not be likely, he still has been housed in an overcrowded
    remand centre with no meaningful opportunities for rehabilitative programming.

[Emphasis added]

[12]

The appellant submits that the trial judge erred in the emphasized
    passage above. He says that the conditions of his pre-conviction custody were
    identical to those of his post-conviction, pre-sentence custody. Since the
    trial judge attributed, correctly, credit on a 1.5:1 basis for the latter, she
    should have done the same for the former.

[13]

We agree with the appellants position, essentially for two reasons.

[14]

First,
    a principal focus of credit for pre-sentence custody must be on the conditions
    in detention centres: see
R. v. Summers
, 2014 SCC 26, at para. 70. The
    trial judge properly applied this focus in her consideration of the appellants
    detention from conviction to sentence and gave a 1.5:1 credit. However, when
    considering the pre-conviction component of the appellants pre-sentence
    custody, the trial judge shifted her focus; she relied on factors entirely
    extraneous to the prescribed focus on conditions in detention centres and
    reduced credit to 1:1.

[15]

In our view, at least the first and second reasons the trial judge granted
    the appellant enhanced credit for his post-conviction, pre-sentence custody 
    namely the relative harshness of conditions and lack of access to
    rehabilitative programming in detention centres  apply equally to his period
    of pre-conviction custody.

[16]

Second, one of the factors relied on by the trial judge for denying
    enhanced credit for pre-conviction custody  R.S. avoided arrest for a period
    of 10 months after he was aware that the police were trying to locate him 
    was also relied on by the trial judge as an aggravating factor in fixing the
    appropriate custodial sentence. This amounts to an impermissible double
    counting of an aggravating factor: see
R. v. Nelson
, 2014 ONCA 853,
    at para. 53.

Disposition

[17]

The conviction appeal is dismissed.

[18]

Leave to appeal sentence is granted, the sentence appeal is allowed, and
    the appellant is credited with 1033 days of pre-sentence custody, leaving a
    remaining custodial sentence of two years and two months.

Released: JM FEB 17 2017

J.C. MacPherson
    J.A.

Paul Rouleau J.A.

David Brown J.A.


