Background
Daylo Robinson was charged with human trafficking and released on bail with a condition prohibiting communication with the key Crown witness. While on bail, two men—Daniel and Jesse Lavigne—approached the complainant and her boyfriend at a location where they were smoking drugs. Jesse Lavigne held a phone displaying a video call connected to Robinson and turned the screen toward the complainant, displaying Robinson’s image for approximately 5-10 seconds. The complainant testified that Robinson “smirked” at her, a facial expression she recognized from his prior behavior toward her. Robinson said nothing during the brief encounter.
The Crown alleged threats were made to compel the complainant to record a video recanting her trafficking allegations. Robinson and the Lavignes were acquitted of intimidating a witness and obstructing justice due to inconsistent testimony and credibility concerns. However, the trial judge convicted Robinson of breaching his release order by “communicating with” the complainant contrary to s. 145(5)(a) of the Criminal Code. Robinson appealed, arguing the conviction was unreasonable and the trial judge erred in applying the intentionality requirement.
The Court’s Holding
The Ontario Court of Appeal dismissed Robinson’s appeal, holding that the smirk constituted intentional communication with the complainant. Although the trial judge’s reasons were brief, the court found her reasoning was rational and supported by the evidence when read in context. The court emphasized that Robinson’s facial expression was “directed at” the complainant and, by common sense, constituted an inherent form of communication—particularly significant given it occurred on the eve of Robinson’s trafficking trial with the witness as a key Crown witness.
The court rejected Robinson’s argument that he did not know the phone would be turned toward the complainant or arrange the video call. The court concluded it was open to the trial judge to infer that Robinson knew the camera was pointed at the complainant and intentionally remained on the call while smirking. The court noted Robinson could have ended the call upon realizing the complainant could see him, but instead stayed on screen. No legal error occurred in the trial judge’s application of the intentionality requirement for the breach offense.
Key Takeaways
- A non-verbal facial expression directed at someone can constitute “communicating with” a person for purposes of release order breach charges under s. 145(5)(a).
- The Crown need not prove the accused initiated contact; remaining on a video call while intentionally communicating through facial expressions satisfies the offense.
- Trial judges may draw reasonable inferences about intent from context, including that a party to a video call knew the other participant could see them.
- Inconsistency in witness testimony regarding threats does not necessarily undermine credibility on uncontradicted factual matters (such as the video call itself).
Why It Matters
This decision clarifies that breach of release orders prohibiting “communication” encompasses non-verbal communication through modern technology. The ruling expands the scope of what constitutes prohibited contact in the digital age and may have implications for release conditions in cases involving vulnerable witnesses or victims, particularly in human trafficking and witness intimidation prosecutions. Counsel must advise clients that intentional facial expressions or gestures directed at prohibited persons through video technology can violate release conditions, even absent spoken words.