



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: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    the victim shall not be published in any document or broadcast or transmitted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. Mascoe, 2020 ONCA 706

DATE: 20201106

DOCKET: C67539

Gillese, Lauwers and Benotto
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Lascelles Mascoe

Appellant

Lascelles Mascoe, acting in person

Hannah Freeman, for the
    respondent

Heard by videoconference: November
    2, 2020

On appeal from the conviction entered on
    May 28, 2019 and the sentence imposed on September 19, 2020, by Justice Edwin
    B. Minden of the Superior Court of Justice, sitting without a jury.

REASONS FOR DECISION


[1]

Following a judge alone trial, Mr. Mascoe was convicted of receiving a
    material benefit from the commission of a s. 286.1(1) offence (prostitution)
    and exercising control for the purpose of facilitating a s. 286.1(1) offence
    (prostitution).

[2]

At the sentencing hearing, the Crown sought a sentence of eight years.
    Defence counsel sought a sentence in the range of 15 months to two years.
    Defence asked that pre-trial custody be credited at 1.5:1, noting that Central
    East Correctional Centre (Central East) was in a poor state and Mr. Mascoe
    was detained there for the entire pre-trial period.

[3]

Mr. Mascoe was sentenced to five years imprisonment less pre-trial
    custody. He spent 502 days in pre-trial custody and given credit, at the rate
    of 1.5:1, for 753 days (2 years and 1 month). Enhanced credit was given because
    of the labour disruptions at Central East during the period of pre-trial
    custody which led to, among other things, Mr. Mascoe being deprived of
    opportunities to shower or sleep in a cell with a bed.

[4]

Mr. Mascoe appeals against conviction and sentence. At the oral hearing
    of the appeal, duty counsel advised the panel that he was not in a position to
    assist. Mr. Mascoe then made oral submissions.

The Conviction Appeal

[5]

On the conviction appeal, Mr. Mascoe argues that due to the
    inconsistencies in the complainants testimony, it was an error for the trial
    judge to have accepted her testimony. He also argues that the trial judge
    failed to consider the complainants testimony in which she stated that she did
    not receive a material benefit and was free to come and go as she pleased.
    Further, he argues that the trial judge misapprehended the evidence about
    whether the activities took place in one hotel or two.

[6]

The trial judge gave careful reasons explaining that, while he treated
    the complainants testimony with caution because of its inconsistencies, he
    nonetheless found her credible and reliable. There is no basis to interfere
    with the trial judges credibility determination.

[7]

As for the submission that Mr. Mascoe did not exercise control over the
    complainant, we see no basis on which to interfere with the trial judges
    findings to the contrary. It is correct that, on the complainants testimony,
    Mr. Mascoe did not use violence against her. However, he did exercise control
    for the purpose of facilitating her prostitution. Mr. Mascoe drove the
    complainant to retrieve clothing, to the mall to purchase items, and to the
    first hotel to begin work. He monitored her exchanges with clients. The
    complainant turned over all the money she earned to Mr. Mascoe. On at least one
    occasion, he told her she could not take a break. He berated her for not
    working as hard as she should be. He also controlled her ability to see her
    family and would not allow her to visit them without him.

[8]

On the matter of one hotel or two, the trial judge found, on Mr. Mascoes
    own testimony, that there was attendance at two hotels.

[9]

The trial judges findings were carefully explained and grounded in the
    evidence.

The Sentence Appeal

[10]

On
    his sentence appeal, Mr. Mascoe argues that five years incarceration is
    outside the range because there was no violence or intimidation involved. He
    also argues that he should have been given greater credit for pre-trial custody
    because of the harsh conditions at Central East and the poor conditions that
    resulted from the lockdowns. Fresh evidence was filed, on consent, relating to
    the lockdown; it does not materially change the facts before the sentencing
    judge on this matter.

[11]

We
    see no error in the sentence imposed.

[12]

Mr.
    Mascoe has a lengthy criminal record including two prior convictions for sex
    trade offences. He was on probation for a similar offence at the time of his
    arrest on these charges. The evidence showed that Mr. Mascoe has no interest in
    rehabilitation as this work is his livelihood.

[13]

Nor
    do we see any basis on which to interfere with the sentencing judges exercise
    of discretion in awarding 1.5:1 credit for the period Mr. Mascoe spent in
    pre-trial custody. The sentencing judge was fully alive to the harsh conditions
    in Central East caused by the labour disruption and he gave thoughtful, careful
    reasons for the amount of credit to be given as a result of them.

Disposition

[14]

Accordingly, the appeal against conviction is dismissed. Leave to
    appeal sentence is granted and the sentence appeal is dismissed.

E.E. Gillese J.A.

P. Lauwers J.A.

M.L. Benotto J.A.


