



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Premanathan, 2019 ONCA 780

DATE: 20191001

DOCKET: C64675

Huscroft, Paciocco and
    Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Virushan
    Premanathan

Appellant

Mark Halfyard, for the appellant

Jennifer Strasberg, for the
    respondent

Heard: September 26, 2019

On appeal from the conviction entered on
    September 8, 2017 by Justice Donald J. Halikowski of the Ontario Court of
    Justice.

REASONS FOR DECISION


[1]

The appellant was convicted of communicating
    with a person under the age of 18 to facilitate an offence of obtaining sexual
    services for consideration, communication with a person under the age of 18 to
    facilitate the offence of invitation to sexual touching, and breach of recognizance.
    He appeals only the communication convictions.

[2]

There is no question that the appellant sent
    many text messages to the undercover officer who posed as a 15-year old escort.
    But the appellant testified that this was a mistake  that he mistakenly texted
    the wrong number, thinking he had already broken off the conversation with the
    escort once he learned that she was 15 years old. He says that he intended to
    contact a different escort about a different sexual service.

[3]

The appellant submits that the trial judge made
    unreasonable findings and misapprehended the relevant evidence. The appellant
    also submits that the trial judge erred in failing to apply
R. v. W. (D.)
,
    [1991] 1 S.C.R. 742 (S.C.C.) and in failing to consider the appellants prior
    and subsequent communications in assessing reasonable doubt.

[4]

We disagree.

[5]

The trial judge found that the 12-second
    timeframe between the relevant text messages was inadequate to contact and
    communicate with another escort, rather than continue messaging the undercover
    officer. This finding was based not simply on the appellants typing speed but
    also on several additional tasks the appellant would have to have performed in
    order to have commenced communications with another escort.

[6]

We accept that there is a problem with the
    nature of the analysis undertaken by the trial judge. However, in the context
    of the evidence as a whole, it is not fatal to the trial judges conclusion.

[7]

The timing of the text messages was not the only
    reason the trial judge gave for rejecting the appellants evidence as not
    credible. All of the appellants conversations with prospective escorts began
    with a statement of the sexual service he desired or an inquiry as to menu and
    rate. In contrast, the conversation he argued was with a new escort began by
    the appellant asking, U do car call? It was open to the trial judge to
    conclude that the appellants conversation with the undercover officer was a
    continuous one.

[8]

Although the trial judge used the word
    searched in describing tasks he thought that the appellant needed to complete
    in order to call a new escort, he understood that the appellant was using two
    cellphones and that the escorts phone number was already on the display of the
    other cell phone, and that as a result, no significant time for searching was
    required.

[9]

The trial judge did not refer to
W.(D.)
.
    It would have been better if he had done so, but his failure to do so is not
    fatal to the convictions. What matters is that he required that the charges be
    proven beyond a reasonable doubt, and we are satisfied that he did so.

[10]

This was a short trial and the issues were not
    complicated. The trial judge rejected the appellants evidence and explained
    why he did so. He found that the appellant was not credible. He reviewed the evidence,
    including text messages sent prior to and during the appellants conversation
    with the undercover officer, and clearly rejected in its entirety the
    appellants argument that he thought he had broken off contact with the
    undercover officer and selected a new escort. This finding was open to him on
    the evidence, and there is no basis to interfere with it.

[11]

The appeal is dismissed.

Grant Huscroft J.A.

David M. Paciocco J.A.

I.V.B. Nordheimer J.A.


