



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

486.4(1)       Subject
    to subsection (2), the presiding judge or justice may make an order directing
    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in
    proceedings in respect of

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.
    2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more offences being dealt
    with in the same proceeding, at least one of which is an offence referred to in
    paragraph (a).

(2)     In proceedings
    in respect of the offences referred to in paragraph (1)(a) or (b), the
    presiding judge or justice shall

(a)     at the first
    reasonable opportunity, inform any witness under the age of eighteen years and
    the victim of the right to make an application for the order; and

(b)     on application
    made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to
    subsection (2.2), in proceedings in respect of an offence other than an offence
    referred to in subsection (1), if the victim is under the age of 18 years, the
    presiding judge or justice may make an order directing that any information
    that could identify the victim shall not be published in any document or
    broadcast or transmitted in any way.

(2.2) In proceedings in
    respect of an offence other than an offence referred to in subsection (1), if
    the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible,
    inform the victim of their right to make an application for the order; and

(b) on application of
    the victim or the prosecutor, make the order.

(3)     In proceedings
    in respect of an offence under section 163.1, a judge or justice shall make an
    order directing that any information that could identify a witness who is under
    the age of eighteen years, or any person who is the subject of a
    representation, written material or a recording that constitutes child
    pornography within the meaning of that section, shall not be published in any
    document or broadcast or transmitted in any way.

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

486.6(1)       Every
    person who fails to comply with an order made under subsection 486.4(1), (2) or
    (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2)      For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Safieh, 2021 ONCA 644

DATE: 20210922

DOCKET: C66003

Doherty, Gillese and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Boutros Safieh

Appellant

Stacey Taraniuk, for the appellant

Deborah Krick, for the respondent

Heard: September 13, 2021 by
    video conference

On appeal from the convictions entered by
    Justice M. McKelvey of the Superior Court of Justice on July 4, 2017.

REASONS FOR DECISION

[1]

At trial, the appellant challenged the
    constitutionality of the seizure of his cellphone at the time of his arrest.
    The Crown agreed that if the seizure breached s. 8 of the
Charter
, the
    evidence should be excluded. The trial judge held the seizure was constitutional.
    After the
Charter
motion failed, the appellant did not challenge the
    Crowns case and the trial judge entered convictions on two counts of procuring
    a person under 18 for prostitution and two charges of making child pornography.

[2]

On appeal, the appellant submits the trial judge
    made several errors in his reasons on the
Charter
motion and failed to
    adequately explain how he came to the conclusion that there was no breach of
    the appellants s. 8 rights.

[3]

We do not accept the arguments advanced by the
    appellant. The issue on the
Charter
motion turned on the answer to a
    single, simple factual question  did the Crown establish, on the balance of
    probabilities, that the appellant was arrested in the hallway and not in his
    hotel room? If the arrest was in the hallway, the arrest and the search
    incidental to the arrest were lawful. If the arrest was in the hotel room, the
    arrest and the search incidental to the arrest were unlawful and
    unconstitutional.

[4]

The trial judge concluded the arrest took place
    in the hallway, outside of the hotel room. He accepted the evidence of the
    three police officers who testified that the arrest occurred in the hallway. He
    rejected the evidence of the appellant that the arrest occurred in the hotel
    room. In coming to his conclusion, the trial judge reviewed the evidence of all
    four witnesses, honed in on the sole factual issue, and explained why he found
    the evidence of the police officers on that crucial issue credible, while finding
    that the appellants evidence on the same issue was not credible.

[5]

We find no material misapprehension of the
    evidence by the trial judge. In explaining why he accepted the evidence of the
    police officers, the trial judge acknowledged inconsistencies in their evidence.
    He also noted deficiencies in the notetaking of one of the officers. The trial
    judge appreciated that the evidence of the officers as to the exact location in
    the hallway where the arrest occurred differed. The trial judge also indicated
    the officers gave somewhat different evidence as to which of them actually made
    the arrest in the hallway.

[6]

Discrepancies among witnesses are common in
    trials. It is up to the trial judge to evaluate the inconsistencies and the
    impact, if any, those inconsistencies had on the officers credibility and
    reliability of their evidence. The appellants submissions offer no basis upon
    which this court can interfere with the trial judges assessment of the
    evidence of the officers and his conclusions with respect to the credibility and
    reliability of their evidence.

[7]

The trial judge also explained why he did not
    accept the appellants evidence. The trial judge considered the appellants
    evidence that he did not go into the hallway to speak to the police by placing
    that evidence in the context of the totality of the evidence adduced at trial. He
    also examined the appellants evidence, having regard to the trial judges
    notions of common sense and human experience. That is what triers of fact are
    required to do.

[8]

There is nothing in the record to offer any
    support for the contention that the trial judge engaged in uneven scrutiny of
    the Crown and defence evidence. The appellants arguments invite the court to
    retry this case. We cannot do that.

[9]

The appeal is dismissed.

Doherty
    J.A.

E.E.
    Gillese J.A.

Grant
    Huscroft J.A.


