R. v. Van Vu Rosin, 2022 MBPC 10

CITATION: R. v. Van Vu Rosin, 2022 MBPC 10 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen, ) Dayna Queau-Guzzi, ) for the Crown ) and ) ) ) Andrew Rosin, ) Martin Glazer, Accused ) for the Accused ) ) ) Reasons for Decision delivered ) on the 24th day of February, 2022 ) A.D., at the City of Winnipeg, ) in the Province of Manitoba. ) Tracey Lord, A.C.P.J. Ruling on Admissibility of Community Impact Statement [ 1 ] The Crown is seeking to tender a Community Impact Statement (CIS) prepared by Monique St.

Germaine on behalf of the Canadian Centre for Child Protection (C3P), pursuant to s. 772.2(1) of the Criminal Code of Canada (the Code ). [ 2 ] C3P is a registered Canadian charity dedicated to the personal safety of all children. They describe themselves as a non- partisan organization that is separate and distinct from government and police, focused on providing programs and services aimed at reducing the sexual exploitation and abuse of children, among other things. [ 3 ] Canada’s national tip line to report the online sexual abuse of children, Cybertip.ca, is owned and operated by C3P.

Through this entity, analysts receive reports and other information specific to the online luring of children. [ 4 ] The CIS at issue in this case is submitted by C3P on behalf of all Canadian children and families, particularly those impacted by the crime of online luring.

Due to the virtually unlimited reach of the internet, luring is a crime with great impact on Canadian children and families as a whole. (CIS p. 4) [ 5 ] The statement itself provides general information about online luring, including undercover police investigations such as the one used in this case, and refers to Canadian case law, statistics, information gathered from reported offences and comments from those who have been victimized.

[6] Counsel for Mr. Rosin argues the CIS it is not admissible, firstly because it does not meet the criteria of s. 722.2(1) of theCode. He argues C3P is an advocacy group, not a representative of a community and therefore the impact statement is not a proper CISas contemplated by Parliament. [7] He further argues, the CIS is essentially a legal brief containing references to case law not properly part of a CIS. [8] Counsel for Mr. Rosin also argues the CIS is not admissible as it contains information that is inadmissible at law.

He arguesfirstly the content of the CIS is actually expert evidence and is therefore inadmissible as it has not been proven admissible using thecriteria associated with expert opinion evidence, and further the CIS contains survey evidence which is untested hearsay and notadmissible without proof of its accuracy. He relies on two cases: Kapoor v. Kuzmanovski, 2018 ONSC 4770 and R. v.

Prairie SchoonerNews Ltd and Powers, (MB CA) both of which deal with survey evidence but not in the context of a CIS. [9] The Kapoor case is a civil suit in which the admissibility of survey evidence was raised in an entirely different context and in adifferent evidentiary format. In my view, the principles enunciated are not applicable to this case. [10] In the Prairie Schooner case the court commented on survey evidence. The observations related to the survey sample size andthe qualifications of the witness presenting the evidence. No ruling on the point was made.

The comments are obiter and were describedby the court as “tentative observations”, and therefore will not be considered here. [11] Similar arguments to that being made by Mr. Rosin have been made in other cases where the admissibility of a C3P CIS wasspecifically at issue. [12] In R. v.

Jonat, 2019 ONSC 1633, a case dealing with child pornography offences, the defence objected to the admissibility ofC3P’s CIS on the basis that it contained statistical evidence, that the document was not a proper impact statement but rather an advocacypiece and that the statements contained within were general in nature and did not deal with the accused or the circumstances of hisoffences. [13] The court in Jonat found the CIS was admissible, including the survey information from survivors and considered theinformation and comments “in gaining a deeper understanding of these offences”. (para 53) [14] In R. v.

A.A.J.T., 2021 MBQB 3, a similar CIS by C3P was ruled admissible, including a survivor’s survey.

At paragraph 109the court said the comments of the survivors offered a fair representation of the community most directly impacted by the criminalactivity, and said, “There is no practical or realistic way of getting this kind of evidence before the court in any other way, as survivorsare unlikely to willingly testify at a sentencing hearing about the sexual abuse they suffered and how the continuing dissemination ofimages of that abuse continue to victimize them.” [15] The same reasoning was followed in the Provincial Court of Manitoba in R.

Marcinkowski an oral decision of Judge Cornickgiven on October 26, 2021. [16] In R. v.

Mootoo, a very recent decision of the Ontario Superior Court of Justice, (2022 ONSC 384) the court in reviewing asimilar CIS submitted by C3P noted a number of concerns about its admissibility. [17] In finding the report did not address the impact of the specific accused’s online sexual offences on the broader community thecourt commented that a CIS should focus on how the offence in question affected a particular identifiable community. [18] The court in Mootoo also commented that the CIS was essentially an expert report expressing an opinion on the extent andseriousness of online violence against children without being tested by cross-examination.

The court also commented that the CIScontained an unnecessary

summary of the law. [19] Ultimately, the court in Mootoo decided it did not need to rule on the admissibility of the statement, as the Supreme Court ofCanada had already provided guidance about how trial judges should assess the seriousness of sexual offending against children,covering all of the same harms outlined in the CIS in the Friesen decision. [20] In R. v.

Friesen, 2020 SCC 9, in ruling that sentences for child sexual abuse and other related sexual offences against childrenmust increase, the Supreme Court considered statistics of police reported sexual incidents, luring incidents and pornography incidents upto 2017 to inform their decision. (para 46) [21] The decision also contains a specific heading, “Harm to Families, Communities and Society.” [22] At paragraph 62 the court said “the Criminal Code recognizes that the harm flowing from an offence is not limited to the directvictim against whom the offence was committed”, and gives recognition to secondary victims such as parents, family members andcaregivers.

At paragraph 64, the Court said “beyond the harm to families and caregivers, there is broader harm to the communities inwhich children live and to society as a whole.” [23] This supports the admissibility of the type of CIS at issue in Mr. Rosin’s case as well as the use of statistics and surveyinformation. Conclusion [24]

Section 722.2(1) of the Code indicates that when determining the sentence to be imposed on an offender in respect of anyoffence, the court shall consider any statement made by an individual on a community’s behalf that was prepared in accordance with thissection and filed with the court describing the harm or loss suffered by the community as a result of the commission of the offence andthe impact of the offence on the community.

[ 25 ] The statement must be in writing in the prescribed form in accordance with the procedures established by a program designated for that purpose by the lieutenant governor in counsel of the province. [ 26 ] I am satisfied the CIS submitted by C3P complies with the requirements prescribed in the Code . [ 27 ] The Code does not contain a definition of what constitutes a “community”. I accept that C3P is able to represent the community of victims of online luring in Canada as well as their families, their communities and society as a whole. That is part of their mandate as an organization.

It is also important to recognize that unlike other kinds of criminal activity, cybercrime like online luring is not limited to a geographical community or jurisdiction. The community affected has no particular geographical bounds as a result. [ 28 ] While I agree with counsel’s submission that s. 722.2(1) of the Code does not contemplate the inclusion of a legal brief in a CIS, many of the cases cited refer to the impact of this type of offending on the victim(

s) in those cases and inform the overall commentary regarding the impact of online luring on the community. [ 29 ] Impact statements such as the one at issue in this case are routinely filed without objection. The purpose of this statement is to provide the court with information about the harm and loss suffered by members of the community as a result of the online luring of children. [ 30 ] In a case such as this, involving an undercover police investigation, where there is no “live” victim to share with the court the impact of Mr.

Rosin’s offending, the information provided in the CIS is helpful to the court in providing the broader context of the impact of this type of crime.

This is especially so in a case where there is no “live” victim and no other means for the court to otherwise access such information. [ 31 ] In this case the statement provides context enabling the Court to appreciate the nature and gravity of the offences of this type and their impact on real people. ( Jonat para 49 ) [ 32 ] The fact that many of the same conclusions have been affirmed by the Supreme Court of Canada in the Friesen case does not result in the CIS being inadmissible. [ 33 ] I am satisfied the CIS meets the criteria set out in s. 722.2(1) of the Code and is admissible. “Original signed by:” Tracey Lord, A.C.P.J.