R. v. Rocker

R. v. Rocker Collection Decisions of the Court of Appeal Date 2019-04-15 Neutral citation 2019 ONCA 299 Docket numbers C65675 Judges Benotto, Mary Lou; Brown, David M.; Fairburn, J. Michal Subject Criminal Decision Content 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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 complainant’s 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and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. Rocker, 2019 ONCA 299 DATE: 20190415 DOCKET: C65675 Benotto, Brown and Fairburn JJ.A. BETWEEN Her Majesty the Queen Respondent and Courtney Rocker Appellant Courtney Rocker, in person Gerald Chan, Duty Counsel Andrew Hotke, for the respondent Heard and released orally: April 8, 2019 On appeal from the conviction entered on July 18, 2018 and the sentence imposed on July 18, 2018 by Justice Peter Bawden of the Superior Court of Justice, sitting without a jury. REASONS FOR DECISION [1] This is an appeal from conviction and sentence. The appellant raised concerns in his Notice of Appeal about the trial judge’s credibility findings. Although these submissions were not advanced in oral submissions today, we see no error in those findings. The trial judge was alive to the arguable frailties in the complaints’ evidence and specifically addressed those issues, reconciling all concerns, and landing on clear credibility findings. We see no error in his approach. [2] In oral submissions today, the appellant expressed regret for not having testified at trial. This concern was not raised in his Notice of Appeal. The appellant had counsel at trial and we see nothing in the record that would warrant appellate intervention. [3] In his very capable submissions relating to the sentence appeal, Mr. Chan as duty counsel advanced two arguments alleging errors in the reasons for sentence. [4] First, duty counsel argued that the trial judge erred by concluding that the appellant provided a substance held out to be cocaine to a 16-year-old complainant for the purpose of lessening her natural resistance to “the abhorrent experience of a life of prostitution”. In light of the acquittal entered on the human trafficking count, and the reasons given for the acquittal, including that the appellant was not seeking to exploit the teenagers for personal gain, duty counsel contends that it was not open to the trial judge to then conclude on sentencing that the appellant’s purpose was to lessen the complainant’s resistance to prostitution. Also in support of his position, duty counsel relies upon the trial Crown’s submissions on sentence where she specifically said that she was not asking the trial judge to sentence on the basis that the appellant was providing cocaine for the purposes of encouraging the girls to provide sexual services. [5] We would not accede to this ground of appeal. [6] Even if the reasons for acquittal on the human trafficking count meant that the trial judge could not find that the appellant was providing cocaine to accelerate the complainants slide into prostitution, the other available factual findings that he made amount to strong aggravating factors including that: i. the appellant provided the substance to a 16-year-old girl; ii. he did so while knowing she was a user of cocaine and engaging in prostitution; iii. he knew that she was unconnected to a parental figure who might otherwise provide direction or assistance to her; and iv. he knowingly encouraged her to develop an extremely dangerous addiction. In these circumstances, we would not interfere with the 12-month sentence less credit for time served on that count. [7] The second issue pertains to whether the trial judge erred by imposing consecutive sentences for the drug related counts. We see no error. [8] In addition to the count discussed previously, the appellant was also convicted of trafficking cocaine to another 16-year-old complainant, one who paid for that cocaine. She did not use the drug. Rather, she testified that is was her intention to sell the cocaine to others. It was, as found by the trial judge, a strictly commercial venture. Accordingly, and as found by the trial judge, the circumstances between the two trafficking counts were fundamentally different. [9] In these circumstances, we see no error in the imposition of consecutive sentences. Moreover, the total 19-month sentence for two trafficking counts, one sexual assault and one assault does not offend the principle of totality. [10] In these circumstances, the conviction appeal is dismissed. Leave to appeal sentence is granted and the sentence appeal is dismissed. “M.L. Benotto J.A.” “David Brown J.A.” “Fairburn J.A.”