Background
Between February and May 2015, the appellant engaged in a sexual relationship with a 14-year-old complainant, which resulted in a pregnancy and the birth of a child in January 2016. The appellant maintained throughout that the complainant told him she was almost 18 years old. He was charged with sexual interference and making and distributing child sexual abuse and exploitation material (CSAEM). On September 21, 2023, a Superior Court jury convicted him on all counts, and on January 8, 2024, he was sentenced to a four-and-a-half-year global custodial term — reduced from a notional six years by 18 months as a remedy for Crown misconduct in bringing a knowingly meritless bail review application that had attempted to interfere with the appellant’s parenting rights over children unrelated to the charges.
The appellant, assisted by duty counsel, raised four grounds on the conviction appeal: (1) the application judge should have stayed the proceedings due to the Crown’s egregious s. 7 Charter breach; (2) his s. 10(b) right to counsel was violated upon arrest; (3) the trial judge misdirected the jury on the use of the complainant’s prior inconsistent statement to police; and (4) the trial judge wrongly withheld the private use exemption defence from the jury on the CSAEM counts. He also challenged his sentence as demonstrably unfit, arguing the 18-month Charter remedy reduction was insufficient.
The Court’s Holding
The Court of Appeal dismissed both the conviction and the sentence appeals. On the stay application, the court held that while Crown counsel’s conduct was unquestionably egregious — he pursued a bail review based on risk he knew was unsupported by evidence he had failed to disclose — the application judge committed no reversible error in declining to stay proceedings. The three-part Babos test was properly applied, and it was open to the application judge to find the conduct did not rise to the level of an affront to fair play and decency disproportionate to the societal interest in prosecuting serious offences against children.
On the s. 10(b) claim, the court found no breach: the appellant was offered the opportunity to call a lawyer of his choice, could not identify one, elected to speak with duty counsel, confirmed satisfaction with that advice, and invoked it during the police interview. The appellant’s later comment about wanting “a good lawyer instead of duty counsel” was understood to refer to future representation, not dissatisfaction with the advice received. Accordingly, the police statement was properly admitted. On the jury charge, the court found the trial judge correctly instructed the jury that the complainant’s inconsistent prior statement could be used to assess her credibility but not as substantive evidence of what she actually told the appellant about her age — consistent with R. v. K.K.M., 2020 ONCA 736. On the private use exemption, the court confirmed that the defence had no air of reality because the images depicted unlawful sexual activity given the complainant’s age, as required by R. v. Sharpe, 2001 SCC 2.
On sentence, the court found the five-and-a-half-year sentence for sexual interference (consecutive to concurrent six-month sentences for the CSAEM offences), before the 18-month Charter reduction, was within the appropriate range under R. v. Friesen, 2020 SCC 9, and R. v. Bertrand Marchand, 2023 SCC 26. The sentencing judge properly weighed aggravating factors — the duration of the interference, the resulting pregnancy, and harm to the complainant — against mitigating factors including first-offender status, stable employment, and the appellant’s role as a single father. The 18-month reduction for the Charter breach was a significant and available remedy, and the court found no error in its quantum.
Key Takeaways
- A stay of proceedings for Crown misconduct remains an exceptional remedy available only in the “clearest of cases” under the Babos three-part test; egregious conduct alone does not compel a stay if it did not prejudice trial fairness and did not rise to an affront to societal norms of fair play disproportionate to the public interest in prosecution.
- Section 10(b) is satisfied where an accused is offered the opportunity to retain counsel of choice, cannot identify one, elects duty counsel, and confirms satisfaction with that advice — police are not obligated to provide a lawyer list or facilitate a connection to unnamed counsel.
- A complainant’s prior inconsistent statement that she told the accused she was almost 18 can be used only to assess the complainant’s credibility, not as substantive proof of what she told the accused, where the complainant does not adopt the statement as true at trial.
- The private use exemption for CSAEM has no application where the visual material depicts unlawful sexual activity, regardless of whether it was held privately — age of the complainant determines lawfulness of the depicted activity.
- Sentencing reductions as a Charter remedy for Crown misconduct may be imposed in lieu of a stay; an 18-month reduction on a six-year global sentence was upheld as a valid and proportionate response.
Why It Matters
This decision reinforces the narrow scope of the Crown misconduct stay remedy under Babos: courts will assess prejudice to trial fairness and proportionality to the societal interest in prosecution, meaning even documented and serious Crown misconduct — here, pursuing a bail review on grounds known to be unsupported — will not automatically derail a prosecution for serious offences against children. Defence counsel and courts must distinguish between conduct that taints the trial itself and misconduct that warrants a different remedy, such as a sentence reduction.
The case also provides a practical illustration of the limits of s. 10(b) claims where accused persons cannot name counsel of choice and voluntarily engage with duty counsel, and affirms the Sharpe framework for the private use exemption to CSAEM charges. For practitioners handling child sexual offence cases, the court’s application of Friesen and Bertrand Marchand to uphold mid-to-upper-single-digit custodial ranges — even with mitigating personal circumstances — signals that Ontario courts will maintain firm sentencing floors in this area consistent with Supreme Court guidance.