R. v. Burton

R. v. Burton Collection Decisions of the Court of Appeal Date 2023-01-30 Neutral citation 2023 ONCA 44 Docket numbers C66300 Judges Pepall, Sarah E.; Paciocco, David M.; Favreau, Lise G. 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152,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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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. 486.6(1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 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. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Burton, 2023 ONCA 44 DATE: 20230130 DOCKET: C66300 Pepall, Paciocco and Favreau JJ.A. BETWEEN His Majesty the King Respondent and Tyrone Burton Appellant Tyrone Burton, in person Jeremy Tatum, for the respondent Heard: January 9, 2023 On appeal from the conviction entered on May 21, 2014 by Justice Bruno Cavion of the Ontario Court of Justice and the sentence imposed on March 2, 2018 by Justice Mara B. Greene of the Ontario Court of Justice. REASONS FOR DECISION [1] The appellant, Tyrone Burton, was found guilty of several offences, including two counts of human trafficking, two counts of receiving a benefit from human trafficking, two counts of exercising control for the purpose of receiving a benefit from prostitution and one count of obstruction of justice. He was sentenced to 10 ½ years in custody and is subject to a 10-year long-term supervision order. [2] The human trafficking and exercising control convictions arise from events that took place over one week in December 2012. The two complainants were friends and respectively 18 and 19 years old at the time of the offences. Prior to meeting Mr. Burton, the complainants had done some paid sex work for one client. In December of 2012, they traveled from their home in Kingston, Ontario, to Toronto, where they met up with another client. Immediately after that meeting, they met Mr. Burton on a street in Toronto. Within a day, both complainants worked as prostitutes for Mr. Burton, seeing several clients each day at different hotels in Toronto. Mr. Burton controlled the nature and cost of the sexual services. He stood outside the hotel rooms while the complainants serviced the clients, and he knocked on the door when the time was up. He kept all the money the complainants earned. He took their passports. He imposed rules the complainants were required to follow, including cleaning his apartment and calling him “Daddy”. He also controlled the food, cigarettes and alcohol they could consume. After approximately one week, one of the complainants’ clients contacted the police and they were removed from Mr. Burton’s control. [3] The conviction for obstruction of justice arises from communications Mr. Burton had with one of the complainants after his arrest while he was in jail. [4] Mr. Burton appeals his convictions and sentence, including the imposition of the long-term supervision order. We dismiss the conviction appeal and sentence appeal for the following reasons. Conviction appeal [5] Mr. Burton represented himself at the hearing. He made several arguments in support of his appeal that supplemented the grounds set out in his notice of appeal[1]. Below, we start by addressing the five arguments Mr. Burton made at the hearing, followed by consideration of the grounds in the notice of appeal. [6] First, Mr. Burton argued that the trial judge did not apply the law as set out in the Criminal Code, R.S.C. 1985, c. C-46, but instead “made up” his own version of the law. There is no basis for this argument. In his decision, the trial judge referred to the correct sections of the Criminal Code for each charge and then described what he had to decide in the form of a question. For example, in relation to the human trafficking charges, the trial judge correctly identified s. 279.01(1) of the Criminal Code as the relevant provision. He then said “the question is: ‘did Mr. Burton exercise control, direction or influence over the movements of [the complainants] for the purpose of exploiting them?’ No consent is valid in this charge.” He further stated that exploitation is defined in s. 279.04(1) and “imports an issue of threat to safety.” While the trial judge did not use the exact wording of the relevant sections in the Criminal Code, he was not required to do so. He accurately described the law and what he had to find to be satisfied that Mr. Burton committed each offence. [7] Second, Mr. Burton argued that the trial judge improperly asked the witnesses his own questions and based his decision on those answers. There may be circumstances in which a trial judge goes too far in asking questions of witnesses, thereby usurping the role of counsel in the adversarial context: R. v. Stucky, 2009 ONCA 151, 303 D.L.R. (4th) 1, at para. 71. However, trial judges are entitled to ask questions of witnesses, for example for the purpose of seeking clarifications or following up on questions asked by counsel: R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 230. Ultimately, the issue is “would a reasonably minded person who had been present throughout the trial consider that the accused had not had a fair trial?”: R. v. Imran-Khan, 2021 ONCA 874, at para. 6. In this case, the trial judge asked a few questions, but they were relatively limited and they did not affect the trial fairness. For example, Mr. Burton points to a question the trial judge asked one of the complainants about whether she was receiving any counselling. In his decision, the trial judge then mentioned that this complainant was receiving counselling. While the question was not relevant to the issues at trial, it had no impact on the outcome of the trial nor did it compromise the fairness of the trial. [8] Third, Mr. Burton argued that the trial judge was selective and unfair in his use of text messages. The trial judge’s decision does not support this complaint. In his decision, the trial judge made no reference to text messages, and it is apparent that his findings of fact are based primarily on the viva voce evidence of the complainants. [9] Fourth, Mr. Burton said that he never had a chance to testify and tell his side of the story. He suggested that the trial went on too long and that there was no time for him to testify. There is no support for this in the record. There is no evidence that anyone prevented him from testifying. It was open to Mr. Burton to testify at trial, but he evidently chose not to do so. [10] Finally, Mr. Burton suggested that his trial counsel did not represent him properly. This ground of appeal is not mentioned in Mr. Burton’s notice of appeal. The court has a protocol for appeals based on the ineffective assistance of trial counsel. The protocol includes a requirement that trial counsel be given notice and an opportunity to respond to the allegations by affidavit. It would be unfair and improper for the court to entertain this ground of appeal given that it was only raised at the hearing of the appeal, and trial counsel was therefore unable to respond to Mr. Burton’s allegations. In any event, Mr. Burton has not pointed to any specific errors made by his trial counsel. [11] Besides the arguments made at the hearing, in his notice of appeal, Mr. Burton claimed that the trial judge disregarded significant discrepancies between the complainants’ evidence. Mr. Burton did not pursue this argument at the hearing nor did he point out any specific discrepancies between the complainants’ evidence. In any event, we are satisfied that the trial judge carefully considered the complainants’ evidence and that he was entitled to make the findings of fact he did based on that evidence. [12] In his notice of appeal, Mr. Burton also claimed that the verdict was unreasonable. Again, we see no merit to this ground of appeal. The trial judge based his findings of fact primarily on the evidence of the two complainants. He found them credible and accepted their evidence about what Mr. Burton did and how he treated them in December 2012. On the basis of this evidence, the trial judge was satisfied that Mr. Burton created an atmosphere of fear and control over the complainants. He rejected Mr. Burton’s position that the complainants were experienced sex workers and that they were in a business relationship with Mr. Burton. Based on his findings of fact, it was open to the trial judge to find that Mr. Burton engaged in human trafficking and that he was guilty of the other related offences. Sentence appeal [13] We also see no basis for granting the sentence appeal. [14] After the convictions but before sentencing, the trial judge retired. The sentencing judge conducted a detailed and careful review of the record and imposed a total sentence of 10 ½ years in custody. In doing so, she imposed concurrent sentences of 8 ½ years for the human trafficking convictions. She also imposed 5-year sentences on each count of receiving a benefit from human trafficking and of exercising control for the purpose of receiving a benefit from prostitution, which were to run concurrently with the sentences for human trafficking. In addition, she imposed a 2-year sentence on the obstruction of justice conviction, to run consecutively with the other sentences. The sentencing judge credited Mr. Burton with 7 years and 11 months of pre-trial custody, leaving him with 2 years and 7 months to serve by the time of sentencing. Finally, the sentencing judge made a 10-year long-term supervision order. [15] With respect to the length of the custodial sentence, the appellant pointed to other decisions with lower sentences for human trafficking convictions. However, on a sentence appeal, this court owes deference to the sentencing judge. The court will only disturb the sentence if the sentencing judge made an error in principle that had an impact on the sentence, or if the sentence is demonstrably unfit: R. v. Friesen, 2020 SCC 9, 444 D.L.R. (4th) 1, at para. 26; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at paras. 11, 41-44. We see no such errors in this case. The custodial sentence imposed by the sentencing judge was fit and was within the range for similar offences. In fact, the sentence was only six months beyond the top of the range proposed by defence counsel at trial. [16] We also see no error in the credit the sentencing judge gave Mr. Burton for pre-sentence custody. Mr. Burton argues that the sentencing judge erred because she did not give him the usual 1.5 credit for each day in custody prior to sentencing. The sentencing judge did in fact give Mr. Burton 1.5 to 1 credit. However, she arrived at that number by including consideration of Mr. Burton’s pre-sentencing conduct, which she found should reduce his entitlement to the usual 1.5 credit, and the conditions under which he was held in custody pending his sentencing, which she found should increase his entitlement to credit. We see no error in the sentencing judge’s approach. Ultimately, the issue of credit for time served was within her discretion. She took Mr. Burton’s unique circumstances into account and did not commit any reviewable errors. [17] Finally, we see no error in the imposition of a long-term supervision order. The Crown originally sought a dangerous offender designation and an indefinite sentence. The sentencing judge was satisfied that the human trafficking offences committed by Mr. Burton were serious personal injury offences as defined by s. 752 of the Criminal Code[2] and that Mr. Burton should undergo an assessment pursuant to s. 752.1(1) of the Criminal Code. However, in her sentencing decision, the sentencing judge was ultimately not satisfied that Mr. Burton should be designated as a dangerous offender, primarily on the basis that the Crown had not demonstrated a “pattern” under either s. 753(1)(a)(i) or (ii). The sentencing judge nevertheless found that Mr. Burton should be designated as a long-term offender pursuant to s. 753.1 of the Criminal Code based on the evidence that he posed a significant risk of reoffending “generally and sexually” and that it was likely that the further offences would cause “injury, pain or other evil”. In reaching this conclusion, the sentencing judge carefully reviewed the evidence, including evidence of Mr. Burton’s prior sexual assault convictions and the expert evidence addressing his risk of reoffending. We see no error in the sentencing judge’s decision, which was based on the correct legal principles and the evidence before her. Concession by the Crown [18] The Crown concedes that the convictions for exercising control should have been stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729. We agree. Disposition [19] The conviction appeal is dismissed, with the exception of the two convictions for exercising control, which are stayed. The sentence appeal is dismissed. “S.E. Pepall J.A.” “David M. Paciocco J.A.” “L. Favreau J.A.” [1] The appellant had counsel when the notice of appeal was filed but subsequently wished to represent himself. Prior to the hearing, on consent of the appellant and the Crown, counsel for the appellant was removed from the record. [2] In his notice of appeal, Mr. Burton challenged the sentencing judge’s finding that the human trafficking convictions were serious personal injury offences. Mr. Burton did not pursue this issue in oral argument. Nevertheless, we are satisfied that the sentencing judge did not make any errors on this issue. She was careful to explain that not all instances of human trafficking are serious personal injury offences. However, she further explained why she was satisfied that in this case, given that both complainants suffered forms of personal injury as a result of the offences, Mr. Burton’s convictions of human trafficking qualified as serious personal injury offences.