Ontario court upholds convictions for distribution of child pornography

The Ontario Court of Appeal recently found overwhelming evidence that the appellants, who were convicted of distributing child pornography and advertising an offer to provide sexual services for consideration, controlled the sale of the complainant’s sexual services.

Justice Stephen Bale of the Ontario Superior Court of Justice, sitting with a jury, also convicted the appellants – Deshon Boodhoo and Keon Chisholm – of procuring a person under 18 years old and receiving a financial or other material benefit from sexual services provided by a person under 18 years old.

 At the time of the offences, the complainant was 16 years old and was facing homelessness. She testified that she had no choice and that the appellants advertised her services, chose and booked the hotels where she worked, decided what services she would provide, and kept her share of the profits from selling sexual services.

The judge imposed global sentences after credit for pre-trial custody of 47 months for Boodhoo and 38 months less five days for Chisholm.

The appellants brought a conviction appeal and sought leave to appeal the imposed sentences. They alleged that the trial judge erred by failing to give a Vetrovec instruction relating to the complainant’s evidence.

The appellants also argued that the judge misdirected the jury on the essential elements of the offence of procuring a person under 18 years old and failed to clarify that the jury should believe beyond a reasonable doubt that the appellants exercised control, direction, or influence over the complainant’s movements, while considering the nature of the relationship between the appellants and the complainant and the impact of the appellants’ conduct on the complainant’s state of mind in line with R. v. Ochrym, 2021 ONCA 48.

Fresh evidence admitted

In R. v. Boodhoo, 2022 ONCA 895, the Ontario Court of Appeal dismissed the conviction appeal, admitted the fresh evidence, and stayed the execution of the sentence’s remainder.

First, the appellate court saw no basis to interfere with the trial judge’s discretionary decision not to issue a Vetrovec instruction. The complainant’s testimony was central to the case. She was not an unsavory witness, had no criminal record, had no charges, and would gain no legal or financial benefit from testifying, the court noted.

The jury was well aware of the problems with the complainant’s testimony and was well equipped to decide the case, the appellate court added. The judge told the jury to consider the inconsistencies and to exercise “significant caution” in assessing the complainant’s evidence. The judge stated that the jury was the one that had to decide whether to believe this evidence and that the Crown had the burden to prove the elements of the offences beyond a reasonable doubt.

Second, the Court of Appeal ruled that the trial judge did not have the benefit of Ochrym when he instructed the jury. However, the jury had ample evidentiary basis to conclude that the appellants exercised control, direction, or influence over the complainant under s. 286.3(2) of the Criminal Code and understood the nature of its task, the court said.

The appellate court held that the instructions were adequate in the circumstances and lacked error. There was no risk that the jury would convict simply on the basis that the appellants were doing no more than “helping” the complainant or “affecting” her activities, the court added.

Lastly, the Court of Appeal determined that Boodhoo’s reincarceration for seven weeks was not in the interests of justice. Boodhoo presented fresh evidence providing that he served most of his sentence, had full-time work, lived with his family, and was supporting his partner and young daughter. The Crown agreed to admit this fresh evidence.