R. v. Patterson

R. v. Patterson Collection Decisions of the Court of Appeal Date 2003-04-23 Docket numbers C34572 Judges MacPherson, James C.; Simmons, Janet M.; Gillese, Eileen E. Subject Criminal Decision Content DATE: 20030423 DOCKET: C34572 COURT OF APPEAL FOR ONTARIO MACPHERSON, SIMMONS and GILLESE JJ.A. BETWEEN: HER MAJESTY THE QUEEN Respondent - and - GARY WAYNE GABRIEL PATTERSON Appellant Alan D. Gold for the appellant Robert Kelly for the respondent Heard: December 10, 2002 On appeal from the convictions entered by Justice Lee K. Ferrier of the Superior Court of Justice, sitting with a jury, on May 17, 2000 and from the sentences imposed on June 21, 2000. GILLESE J.A.: [1] The appellant was tried by a judge and jury on a twelve count indictment alleging various acts of confinement, procuring J. G. to have illicit sexual intercourse, living off the avails of prostitution and uttering threats. The appellant was convicted on all counts except counts 11 and 12 on which he was acquitted. The co-accused were each convicted on those counts on which they were charged, namely counts 1 through 6. [2] On June 21, 2000, the appellant was sentenced to a total term of seven years imprisonment. The appellant appeals both convictions and sentence. OVERVIEW [3] The complainant, J.G., alleged that after she gave a statement to the police against a pimp, Mark Anthony Burton, the appellant and two co-accused claimed to be Burton's associates, kidnapped her, held her against her will and forced her into street prostitution. She alleged that the confinement extended over a one-week period in the late summer of 1997. J.G. was 21 years old at the time of trial. FACTS [4] In July of 1997, J.G. went to Toronto to visit a friend. She met Burton who put her out on the street as a prostitute in the area of Jarvis and Church streets. This area is known as the "track". While on the street, J.G. found a police officer and told him what had happened. The police located Burton, arrested him and took him into custody. Burton was found to be in possession of J.G.'s identification. J.G. gave a statement under oath about Burton to officers of the Juvenile Task Force. One of the officers, Officer Frosch, gave her his business telephone number and pager number. While at the police station, J.G. telephoned her mother - who lives in Barrie, Ontario - and told her what had happened. The identification that Burton had that belonged to J.G. included her mother's address and J.G. claimed that she was worried about her mother's safety. [5] The police then drove J.G. back to Barrie where she had been working as a nanny. [6] Within a few hours of returning to Barrie, J.G. decided to go back to Toronto. When she got to Toronto, she telephoned a man named Tony. Tony had approached J.G. while she was working on the track and given her his business card. Tony offered J.G. a job at his escort agency and a place to stay. J.G. conceded that she knew that the work was a form of prostitution. [7] J.G. immediately started work at the escort agency, answering the telephone and booking dates for "the girls" to meet with customers. [8] During the period that she worked for Tony, J.G. spoke to Officer Frosch but did not tell him or any other officer involved in the Burton case that she was working at the escort agency. Burton's trial was set to begin on October 16, 1997. [9] While working at the escort agency, J.G. met Penny Roberts. J.G. told Roberts that she wanted to get a cellular phone but needed to have a credit card. Roberts told her she knew a banker who could help J.G. get a VISA card. [10] On Sunday, August 31, 1997, J.G. went with Roberts to a restaurant at the Eaton Centre. J.G. thought she was going to a brunch meeting with a customer of Roberts' who was a banker. She thought she would trade sex with the banker for a VISA card. [11] At the restaurant, J.G. was introduced to Royce Briscoe and the appellant. The appellant was referred to as "Gabe". According to J.G., the appellant told her that they were associates of Burton, that her life was no longer hers, that she owed it to them and that, because of Burton, she would have to choose from whom she wanted to earn it. J.G. understood this to mean that she owed them her life. [12] J.G. was told to pick up her belongings from Tony's apartment and go to Roberts' house to await the arrival of Briscoe and the appellant. J.G. understood that the appellant and the co-accused were trying to force her into prostitution. She did not want to go with them. She made no attempt to leave the restaurant, use a telephone or alert anyone that she needed help. [13] Later that day, while at Roberts' house and while all three accused were present, the appellant told J.G. that she would have to see the police or a lawyer to change her statement about Burton in order to get him off his charges. [14] In the days that followed, the appellant and his accomplices forced the complainant to work as a prostitute. They controlled her movements and they took her money. They worked together. Royce Briscoe acted as the complainant's pimp when she worked the streets. She lived with Briscoe in his apartment. He watched over her, told her how to attract customers and took her money. J.G. gave Briscoe $200 earned from her first act of prostitution while with him and the following day, when her regular customer paid her $1,000 for oral sex and intercourse, she gave that money to Briscoe as well. [15] Penny Roberts was responsible for direct supervision of the complainant. She worked the streets with her, took money from her, and drove her from place to place. [16] The appellant oversaw everything through face-to-face meetings and regular phone calls with Roberts. [17] The appellant dominated the complainant with threats and humiliation. He told her he owned her forever. In an incident at Robert's home, he made her strip naked and kneel in front of him while he threatened her with torture. He burned her left forearm with a cigarette. He told her he would cut off her arms and legs and burn them so she wouldn't bleed to death. He said he would cut out her tongue and poke out her eardrums so his voice would be the last she heard. He said he would leave her on life support until she was 65 or she died. He made repeated threats to kill the complainant's mother and brother, who was then between ten and twelve years of age. The appellant told J.G. that he knew where her mother lived but made her write down the address anyway and show it to him, because he wanted to see if she would lie to him. [18] In a test of her loyalty, the appellant made her lick Robert's anus. She passed the test and was told that she would be sent to strip at the Dynasty strip club. Had she failed the test, the appellant told her she would have been shipped out to sit in a room somewhere, that she would have had to prostitute herself under threat of being beaten and that she would never see anyone again. [19] Roberts drove J.G. to the strip club and left. J.G. performed some dances. She thought that two men were watching her. When they left and she believed that no one was watching her, she tried to arrange for a cab to pick her up. She did not have enough money for a cab, so she called 911 from a pay telephone. She was unable to give her location so she hung up. She ran outside and saw a police car. It was approximately 9:00 p.m. on Saturday, September 6, 1997 when Durham police officers Brown and Doucette picked her up. She was clad in a G-string and bra, a black blazer and high heels. She jumped into the back of their cruiser, slammed the door and said "Go, go, get me out of here". She was frantic. She told the officers that she had been kidnapped, forced to work the streets as a prostitute and that this was her first chance to get away. The officers took her to 17 Division where she made a statement. On the way, the police officers received word of the 911 call that J.G. had placed minutes before from a pay phone outside the club. At the police station, J.G.'s main concern was to make sure someone told her mother and brother that they might be in danger. She believed they were in danger because of the threats that the appellant had made. [20] The Crown's case at trial rested on the complainant's testimony bolstered by confirmatory evidence. [21] None of the accused testified or called any evidence. None alleged any motive to fabricate on the part of the complainant. The defence theory was that the complainant was lying. The defence relied on two main points: first, that the complainant's testimony only accounted for four of the seven days covered by the indictment and, second, that she had not availed herself of any of a number of opportunities to escape or seek help until the episode in front of the Dynasty strip club. [22] The Crown's confirmatory evidence included a number of things. The first was J.G.'s call to 911. [23] Another confirmatory piece of evidence came from identification of key locations. Within hours of her flight from the strip club, J.G. directed police officers to the eighth floor at 298 Jarvis Street in Toronto. She pointed out unit 802 as the apartment that had been used as a base while she worked the streets under Briscoe's direct control. [24] A concierge at 298 Jarvis Street testified that in late August 1997, the appellant arrived in the lobby with the key to apartment 802 and said he owned the unit. The concierge had a number of dealings with the appellant about unit 802. In early September 1997, the appellant introduced Royce Briscoe to the concierge as his cousin, Royce Briston, and said Briston would be staying in apartment 802. However, mail arrived at the building addressed to Royce Briscoe. [25] The concierge confirmed that the accused Briscoe was a tenant of apartment 802 and that he saw him coming and going almost every day. Another concierge testified that the accused Briscoe lived in unit 802 and said that when he met Briscoe in early August, 1997, Briscoe introduced himself as Royce Patterson and said he would be moving into apartment 802. [26] The sign-in book at the front desk of 298 Jarvis Street showed that on September 6, 1997, the day the complainant escaped from Dynasty, Roberts signed in at 10:45 a.m. for apartment 802. [27] Land Registry Office documents showed that on December 23, 1996, Wayne Patterson purchased 298 Jarvis Street, Suite 802. His solicitor was listed as G.W. Gabriel Patterson. When Royce Briscoe was arrested in unit 802, a suitcase that had clothing belonging to the complainant was at the apartment. [28] The complainant also directed police officers to a house in the Oshawa area at 1439 Nash Road in Courtice, Ontario. She identified the property as Roberts' home. Land Registry Office documents showed that on December 22, 1993, Roberts purchased the property and her solicitor was shown as G.W. Gabriel Patterson. [29] Additional confirmatory evidence came from cell phone records and physical evidence in the form of a burn mark on the complainant's left forearm and some slight red or brown colouring under her neck. CONVICTION APPEAL ISSUES [30] The appellant alleges seven errors, which give rise to the following issues. 1. Did the trial judge err in his instructions to the triers of the challenge for cause? 2. Did the trial judge fail to put the position of the defence, and the evidence relied on in support of that position, to the jury in a fair manner? 3. Did the trial judge err in permitting the Crown to play to the jury, the complainant's entire September 7, 1997 videotaped statement to the police? 4. Did the trial judge err in permitting the videotape to go the jury once deliberations began? 5. Did the trial judge err in instructing the jury that in order to convict of kidnapping or forcible confinement, it was not necessary for the Crown to prove that the restraint of the complainant occurred over the entire period from August 31 to September 7, 1997? 6. Did the trial judge err in instructing the jury that the complainant could be found guilty of living on the avails of prostitution? 7. Did the trial judge err in instructing the jury on the offence of attempt to obstruct justice by neglecting to instruct them that the offence requires a corrupt attempt to obstruct, pervert or defeat the course of justice? ANALYSIS Issue 1 - Challenge for Cause [31] The appellant submits that the trial judge erred in instructing the triers of challenge for cause by failing to tell them that they had to decide the question on a balance of probabilities, the decision had to be unanimous and, if they could not agree within a reasonable time, they should say so and retire to the jury room. Further, the appellant argues that only some of the jurors were properly instructed. [32] The trial judge explained the challenge for cause process in general terms to the panel as a group and informed the panel that they would see how the process worked. He then ensured that the first jurors called understood the nature of the task and the procedure that they were to follow. He told them that their function was to decide, to their satisfaction, whether the prospective juror would try the accused without bias or prejudice and solely on the evidence. While it would have been preferable had the trial judge referred to the standard as "on the balance of probabilities" instead of "to your satisfaction", the task that they had to perform was clear. See R. v. Dennis McLean (2002), 170 C.C.C. (3d) 330 (Ont. C.A.) at p. 333. [33] The trial judge did not use the word "unanimous" when instructing the triers, nonetheless, he made it clear to the triers that they had to make a joint decision. He told the first triers to decide the issue "between the two of you". Six times during the selection process he told the triers to confer with one another before reaching their decision. There is no doubt that the triers understood that they had the right to disagree and, in fact, at one point they did disagree. [34] On each occasion that there was a new set of triers, the trial judge made sure that the new triers understood their task. While he did not repeat his entire instruction each time, he was not required to do so. All that is required is that each trier appreciates the nature and importance of the task to be performed and the procedure to be followed. See R. v. Douglas (2002), 170 C.C.C. (3d) 126 (Ont. C.A.) at pp. 133-4. In this case, by repeating certain aspects of his instruction, referring to previous instructions, and questioning the triers to ensure they understood the task, the trial judge satisfied this requirement. [35] The trial judge's instructions were adequate. They were clear, fair and attracted no objections from any of the three defence counsel. Issue 2 - Position of the Defence [36] The appellant submits that the trial judge failed to put the position of the defence and the evidence relied upon in support of that position to the jury in a fair manner. [37] This was a case of three accused charged jointly with numerous offences arising out of a series of connected events spanning a period of days. Many of the offences had essential elements that overlapped. The Crown's case rested almost entirely on one witness, the complainant. There was no defence evidence. The position of each accused was the same: the complainant was lying. The case for the defence rested primarily on points made in cross-examination. Before the trial judge gave the charge to the jury, the jury heard detailed addresses by four counsel in which they were reminded of all relevant factual points in each accused's favour. [38] It is within this context that the charge as a whole must be assessed. The trial judge's task was to explain the elements of the offences to the jury and to relate the evidence to each count. He was required, also, to outline the positions of the parties in a way that was understandable and balanced. He was not obliged to follow any particular structure or formula nor was he required to mention every point on which each party relied. His duty was to present the case for all parties in an even-handed and fair way. R. v. Varcoe (1996), 104 C.C.C. (3d) 449 at 453-54 (Ont. C.A.); R. v. Mullins-Johnson (1996), 112 C.C.C. (3d) 117 at 122-23 (Ont. C.A.). [39] The trial judge divided his charge into three parts. In the first, he reviewed the general principles applicable in criminal trials. Second, he gave an explanation of the essential elements of each of the offences. For each count, he outlined the relevant evidence. In reviewing the elements of each offence, the trial judge reminded the jury of the evidence upon which they could return guilty verdicts. He was not obliged to mention every point relied on by each of the accused at each stage of his count-by-count review of the twelve charges. The trial judge referred repeatedly to the burden and standard of proof and reminded the jury that he would deal with the question of credibility later in his instructions. [40] In the third section of the charge, the trial judge outlined the positions of the parties. He began with a review of the defence position, a task that covers approximately fourteen pages of transcript. He then summarized the Crown's position in approximately six pages of transcript. [41] The appellant argues that the trial judge should not have reviewed the defence position in a point/counterpoint fashion, reminding the jury of evidence it might look to in answer. This technique, which was used for his review of the Crown's theory as well, was helpful in focusing the issues for the jury and did not affect the fairness of the charge. [42] Although Crown counsel addressed the jury first, the trial judge reviewed the position of the defence before reviewing the position of the Crown. After the charge, the appellant objected to the structure of the charge submitting that, among other things, the trial judge had "sandwiched" the defence between two reviews of the Crown's position. The trial judge responded with a re-charge in which he told the jury that the order of his presentation was "totally irrelevant". This re-charge was sufficient to cure any prejudice that might have occurred as a result of the order in which he reviewed the positions of the defence and the Crown. [43] In reviewing the position of the Crown, the trial judge did not refer to the evidence relied on by the defence in rebuttal. In my view, this does not lead to the conclusion that the charge was not balanced. The trial judge's obligation was to present the position of the defence even-handedly and fairly and he did so. [44] As a whole, the charge was understandable, balanced and fair and gave the jury everything that it needed in order to return a just verdict. [45] The charge to the jury read as a whole and in context makes it clear, in my view, that the trial judge's presentation of the position of the defence was fair. Accordingly, I would not give effect to this ground of appeal. Issues 3 and 4 - The Videotaped Statement [46] The appellant submits that the trial judge erred in permitting the Crown to play to the jury, the complainant's entire September 7, 1997 videotaped statement to the police. The appellant says that it was prejudicial to play the entire videotape in order to rebut the cross-examination about demeanour conducted by counsel for the co-accused Roberts and that the prejudice was compounded when the learned trial judge gave the jury an instruction about the use of prior statements to show consistency. [47] The appellant argues that it was a further error to permit the videotape to go to the jury room once deliberations began. [48] The Crown played the videotape during its re-examination of the complainant, and its admissibility should be reviewed in this context. The trial judge was correct to allow the Crown to re-examine the complainant by putting to her three specific passages from her videotaped statement. On cross-examination, counsel for Roberts suggested that the complainant had told the Durham police officers three things that were inconsistent with her trial testimony. The complainant denied counsel's suggestions. In those circumstances, it was appropriate for the Crown to elicit that, within a few hours of speaking with the Durham police and when she had her first opportunity to give a formal statement on video, the complainant's assertions on each of the three points were consistent with her trial testimony. The evidence was relevant to the complainant's credibility, particularly on the issue of whether she had told Durham police officers what defence counsel suggested she had said. [49] In my view, the trial judge properly exercised his discretion to permit the Crown to play the entire tape before the jury during re-examination. On cross-examination, counsel for Roberts had raised the issue of the complainant's demeanour during the police interview. He played portions of the tape and made suggestions about other parts of the interview that he did not show the jury. It was necessary for the jury to see the whole interview to make a proper assessment of the complainant's demeanour and to consider the merit of the suggestions that defence counsel had put to her about her demeanour. Without playing the whole videotape, the jury would have had an incomplete, inaccurate, and potentially unfair picture of the complainant's demeanour. [50] Counsel for Roberts joined in the Crown's request that the entire videotape be played for the jury. Counsel for the appellant raised an objection to the playing of the tape but her real concern was that the jury receive limiting instructions. The trial judge gave those instructions, both mid-trial and in his charge to the jury, in terms that are unobjectionable. [51] It was open to the trial judge to permit the videotape to go to the jury room during deliberations. This was a matter within his discretion and there is no basis to suggest he erred in law. The trial judge was not required to depart from the general practice of giving the jury all exhibits whenever feasible. He heard submissions on the issue and declined to adopt the suggestion that the video go to the jury only if they requested it. He was entitled to reach this decision. The trial judge was correct in his assessment that any concern about potential misuse of the video could be avoided by clear cautionary instructions and he gave those instructions. R. v. Pleich (1980), 55 C.C.C. (2d) 13 at 32-33 (Ont. C.A.). [52] Thus, these grounds of appeal are dismissed. Issue 5 - Kidnapping and Unlawful Confinement [53] The appellant argues that the trial judge erred in his charge to the jury on kidnapping and forcible confinement when he stated that it was not necessary for the Crown to prove that restraint of J.G. occurred for the entire period from August 31 to September 7, 1997. [54] The trial judge correctly instructed the jury that the Crown was not required to prove that the restraint of the complainant lasted during the entire period covered by the indictment. It was sufficient to show that the confinement lasted for a significant period of time. Regina v. Gratton (1985), 18 C.C.C. (3d) 462 (Ont. C.A.), leave to appeal to S.C.C. refused (1985), 18 C.C.C. (3d) 462n. [55] The Crown was not obliged to prove that J.G.'s confinement lasted during the entire period covered by the indictment. Its burden was to prove each element of each offence. Time is not an essential element of this charge. [56] The evidence amply supports the verdicts on these counts. [57] Accordingly, I would not give effect to this ground of appeal. Issue 6 - Living On The Avails of Prostitution [58] The appellant argues that the trial judge erred in instructing the jury that the appellant could be found guilty of living on the avails of prostitution because, he says, there was no evidence that the appellant had received any of J.G.'s earnings. I disagree. [59] The verdict on this count is fully supported by the evidence that the three accused, acting in concert but with the appellant as leader, controlled the complainant's movements and forced her to act as a prostitute for their financial benefit. [60] On the evidence, it was open to the jury to find the appellant guilty of living on the avails of prostitution as a party to the offence. While under the appellant's control, J.G. gave Briscoe $200 earned for her first act of prostitution and $1,000 the next day when her regular customer paid her for oral sex and intercourse. Alternatively, the jury was entitled to find the appellant guilty of the offence when Roberts received money from the complainant on the basis that they had acted in concert. [61] The trial judge did not mention the appellant's potential liability as a party to Briscoe's receiving money from the complainant but that omission could only have inured to the appellant's benefit. [62] Thus, I would dismiss this ground of appeal. Issue 7 - Attempt to Obstruct Justice [63] The appellant argues that the core of the offence of attempting to obstruct justice is a corrupt attempt and that the trial judge erred in his instructions to the jury by failing to state that expressly. [64] No objection to the trial judge's charge on this offence was voiced by any of the four trial counsel. [65] A review of the trial judge's charge to the jury on this offence makes it clear that the jury would have correctly understood that the offence was made out if they found that the appellant had said or done anything in an attempt to get the complainant to withdraw or change the statement she had made to the police about Burton. [66] The evidence before the jury amply supported a finding that the appellant made a corrupt attempt to obstruct justice when he tried to get the complainant to change the statement she had made against Burton. R. v. Kotch (1990), 61 C.C.C. (3d) 132 at 136 (Alta. C.A.). Accordingly, I would dismiss this ground of appeal. SENTENCE APPEAL [67] The appellant argues that the sentence of seven years is harsh, excessive and falls outside the acceptable range for an offender with no prior criminal record. I do not agree. [68] At sentencing, the Crown sought incarceration for a period of between eight and ten years. The appellant submitted that a sentence in the range of four to six years would be appropriate. The trial judge imposed seven years. [69] The appellant was a lawyer and member of Ontario bar who, acting in concert with a prostitute and another pimp, descended on a 19-year-old woman and terrorized her for approximately a week. There is no need to dwell on the gravity and seriousness of the offences for which the appellant was convicted nor his role as the leader of the trio. Suffice to say that over the course of the week, he systematically abused and humiliated the complainant. His reign of terror only ended when the complainant fled to the police because she was afraid that the appellant was going to send her away and force her to prostitute herself under the threat of beatings. The appellant's first offender status pales in comparison with the need for denunciation and general deterrence. [70] The trial judge heard thorough sentencing submissions. He delivered detailed reasons that demonstrate that he fully considered the offences, the offender and the relevant sentencing principles. It cannot be said that the sentence is demonstrably unfit. DISPOSITION [71] In the result, I would dismiss the appeal against convictions. I would grant leave to appeal the sentence and dismiss the appeal. "E.E. Gillese J.A." "I agree J.C. MacPherson J.A." "I agree J.M. Simmons J.A." Released: April 23, 2003