The court ordered a new trial for a man accused of trying to obtain a minor's sexual services
Trial judges can direct juries to acquit a criminal defendant in certain circumstances, but they are not entitled to instruct a jury to render a verdict of guilt, the Ontario Court of Appeal has ruled.
The appellate court ordered a new trial for an Ontario man accused of trying to obtain the sexual services of a minor.
The case can be traced back to 2019, when the Durham Regional Police Human Trafficking Unit posted a fake online ad offering the services of a fictitious 18-year old escort named “Destiny.” The website, LeoList, did not allow users to advertise sexual services if they were minors.
Varinder Singh, who was 27 at the time, texted a phone number listed on the advertisement and agreed to pay “Destiny” for a half hour of “kisses and sex.” The undercover police officer who manned the phone told Singh that she was “almost 18.”
Later that day, Singh went to the hotel where he had arranged to meet with the escort. An undercover officer greeted him and told him “Destiny” was 17 years old. Singh handed over $120 in cash and was promptly arrested. He was charged on two counts: communicating with an individual whom he believed to be a minor for the purpose of sexual exploitation, and communicating with anyone for the purpose of obtaining the sexual services of a minor.
At trial, the trial judge instructed the jury that there was a lesser included offence to the second count: if the jury found that Singh had communicated with anyone for the purpose of obtaining the sexual services of a minor, that meant he also met all the criteria for the less serious offence of communicating with an adult for the purpose of securing sexual services.
The trial judge then told the jury that if they decided Singh was not guilty on the two original charges, they must find him guilty of the lesser included offence of communicating with an adult to obtain sexual services.
“It is an offence in Canada for anyone to obtain sexual services for consideration or communicate with anyone for that purpose regardless of any age,” the judge told the jury.
The jury found Singh not guilty on the two charges. The trial judge concluded that the jury had decided by default that the accused was guilty of the lesser included offence. However, the jury was never explicitly asked to render a verdict on the issue. Singh appealed the result.
The OCA sided with Singh, ruling that the trial judge should not have instructed the jury to render a guilty verdict on the lesser included offence.
“While a trial judge may direct an acquittal when there is no evidence upon which a reasonable jury, properly instructed, could convict, ‘there is no corresponding duty or entitlement to direct a jury to return a verdict of guilty,’” the appellate court said.
“The appellant put his fate in the hands of the jury, and even though the evidence against him was overwhelming (on the count for which the trial judge entered a conviction), he was entitled to their verdict,” the OCA added. “He was deprived of that.”
The OCA noted that the trial judge could have instructed the jury that they “should find” or “should have no difficulty finding” that Singh was guilty of the lesser included offence. Instead, the trial judge failed to directly ask the jury whether they believed he was guilty of the lesser included offence, and made the finding himself.
The appellate court ordered a new trial for the lesser included offence.
Counsel for Singh declined to comment on the decision on Monday. A spokesperson for the Ministry of the Attorney General also declined to comment on the decision because the case is still before the court.
