



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    information that could identify the victim or a witness shall not be published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(iii)     REPEALED: S.C. 2014, c. 25,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    the victim shall not be published in any document or broadcast or transmitted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. Zaher, 2019 ONCA 59

DATE: 20190128

DOCKET: C62852

Doherty, Miller and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sandra Zaher

Appellant

Erin Dann and Janani Shanmuganathan, for the appellant

Jeremy Streeter, for the respondent

Heard: January 21, 2019

On appeal from the conviction entered on July 8, 2016 and
    the sentence imposed on January 25, 2017 by Justice Renee M. Pomerance of the Superior
    Court of Justice, sitting without a jury.
[1]

REASONS FOR DECISION

[1]

The police received information that the appellant, a lawyer, was
    counseling clients to lie to immigration authorities to gain refugee status. A
    police officer posing as a refugee claimant went to the appellants office,
    with another officer posing as an interpreter. He sought the appellants
    assistance in advancing his refugee claim. Their conversations were intercepted
    pursuant to a judicial authorization. The Crown maintained that in the
    conversations, the appellant counseled and coached the undercover officer to
    provide a false story to the immigration authorities in support of his refugee
    claim.

[2]

The appellant was convicted of three charges, all of which arose out of
    those conversations with the undercover officer. She received a jail sentence
    totaling one year.

[3]

The appellant appeals conviction and sentence. At the end of argument,
    the court indicated that the appeal would be dismissed with reasons to follow.
    These are those reasons.

The Conviction Appeal

[4]

There is one ground of appeal. The appellant contends that the trial
    judge erred in upholding the authorizations to intercept the appellants
    communications with an undercover police officer posing as her client. The
    authorizations were issued pursuant to s. 184.2 of the
Criminal Code
(interception with consent).

[5]

The appellant submits that there were material omissions and
    misrepresentations in the affidavit sworn to obtain the warrant to intercept.
    She contends that if the misrepresentations are removed from the affidavit,
    there is no basis upon which an issuing judge acting reasonably could have been
    satisfied that the proposed interceptions would provide information concerning
    the named offences.

[6]

The appellant submitted that the errors in the affidavit undermined the
    credibility of the affiant and the credibility of the informant, who had
    advised the affiant that the appellant had counseled him to make false
    statements to the immigration authorities in support of his refugee claim. The
    primary attack was on the credibility of the informant.

[7]

The appellant argues that if the warrant should not have issued because
    of the misstatements in the affidavit, the interceptions of the appellants
    conversations with the undercover officer violated s. 8 of the
Charter
.
    The appellant contends that the interceptions should have been excluded from
    evidence.

[8]

The arguments on appeal tracked those made to the trial judge. On
    appeal, counsel did refer to certain other omissions or misrepresentations in
    the affidavit which were not stressed at trial. These omissions and
    misrepresentations were, however, less significant than those highlighted at
    trial and emphasized on appeal.

[9]

The trial judges detailed and careful reasons for not excluding the
    interceptions from evidence are found at:
R. v. Zaher
, 2014 ONSC 7565.
    The trial judge found two material errors in the affidavit. In considering the
    effect of those errors on the lawfulness of the authorizations, the trial judge
    correctly set out the applicable law and standard of review: see reasons at
    paras. 35-36.

[10]

The first misstatement identified by the trial judge appears at para. 8
    of that affidavit. The officer alleged:

As detailed below, the RCMP received information in 2011 that
    Sandra Zaher, a Windsor lawyer, was actively counseling individuals to
    misrepresent themselves to the Immigration and Refugee Board

[11]

The remainder of the affidavit refers only to the appellant counseling a
    single individual with respect to refugee status. The police had no evidence
    she counseled anyone else.

[12]

In his cross-examination, the affiant acknowledged that the use of the
    word individuals was incorrect. The trial judge described the word as
    misleading. She went on to hold, at para. 45:

It is self-evident and was acknowledged by the Crown that the
    sentence about multiple persons is misleading and must be excised from the
    affidavit. I find that excising that single sentence cures the defect. There is
    no reason to believe that the sentence distorted the meaning of any of the
    other averments in the affidavit because they are all very closely concerned
    with only one case, that of Mr. Al-Awthan. I find that the removal of that
    sentence does not displace the foundation for the issuance of the order.
    Ultimately, the order was not predicated on any allegation of multiple
    offences. It was predicated on a detailed description of one case involving Mr.
    Al-Awthan. I am satisfied that, had the offending sentence not appeared in the
    affidavit, the order would nonetheless have issued.

[13]

The error in para. 8 did not have any impact on the informants
    credibility or reliability. It could potentially undermine the affiants
    credibility. However, as explained by the trial judge, the reference to
    individuals in para. 8 had no potential to mislead the issuing justice when
    that word is considered in the context of the entirety of the affidavits
    contents.

[14]

It is also relevant in considering whether the error in para. 8 was
    deliberate to have regard to the nature of the information that the informant
    gave to the police. The misconduct described by the informant suggested a
    practice, and not a single isolated act. It was implicit in the nature of the
    information provided by the informant that the appellant routinely counseled refugee
    claimants to lie. That does not, of course, make the reference to individuals
    in para. 8 any less inaccurate. It does, however, offer a somewhat benign
    explanation for the inaccurate reference in para. 8.

[15]

The second error in the affidavit identified by the trial judge in the
    affidavit appears at para. 24. In that paragraph, the affiant sets out his
    reasons for believing the informants allegation that the appellant counseled
    him to lie to the immigration authorities. The affiant refers to the informant
    as having nothing to gain by coming forward and, in fact, everything to lose.

[16]

Paragraph 24 does not contain any material misrepresentations. The trial
    judge did, however, conclude that the affiant failed to disclose certain facts
    that were relevant to an assessment of the informants credibility and, in
    particular, his motives for implicating the appellant.

[17]

During cross-examination of the affiant, it became clear that the
    informant had suggested to the affiant on more than one occasion that he had
    been told by the person who encouraged him to report the appellant to the
    authorities that if he assisted the authorities they would, in turn, help him
    stay in Canada.

[18]

The trial judge concluded that the affiant should have disclosed this
    information in the affidavit when addressing the informants possible motives:
    see reasons at para. 55.

[19]

The trial judge ultimately concluded, however, that the rest of the
    information in the affidavit considered along with the evidence about the
    informants possible motive that had not been included in the affidavit, still
    provided a basis upon which the information would provide reasonable grounds
    upon which to grant the authorization. She said, at para. 59:

I am satisfied that had the motive been disclosed, it would not
    have affected the issuance of the order. I have spoken in detail about this
    motive as opposed to others because I find this motive to be the most compelling.
    Suffice it to say, however, I find that the order could and would still have
    issued if any or all of the alleged motives had been disclosed.

[20]

In addition to the two errors examined at length by the trial judge,
    counsel on appeal made reference to other minor shortcomings in the affidavit. Some
    were addressed by the trial judge: reasons at paras. 61-63. In our view, none
    of these alleged shortcomings could have had any impact on the decision to
    grant the authorization. We do not propose to examine each individually.

[21]

Before moving to the sentence appeal, we wish to emphasize one
    additional finding made by the trial judge. In the context of considering
    admissibility under s. 24(2) of the
Charter
, the trial judge had this
    to say about Detective Richardson, the affiant:

Sergeant Richardson was acting in good faith and he was
    genuinely trying to test the credibility of the affiant [informant] and was
    genuinely trying to put forward an accurate picture of the case. While he
    failed to do so in two respects, those examples were not born of any deliberate
    intention to mislead.

[22]

We defer to this credibility assessment. The absence of any attempt by
    the affiant to mislead the judge on the application for the authorization is a
    significant consideration in determining whether the authorization would have
    been granted but for the errors in the affidavit.

[23]

In summary, the appellant invites this court to redo the trial judges
    analysis and to treat the errors in the affidavit, especially the failure to
    refer to the informants motive, as having a much greater impact on the
    viability of the authorization than did the trial judge. This court cannot go
    down that road. The trial judges findings of fact, and her credibility
    assessments, are entitled to deference. The trial judge clearly articulated her
    credibility findings and factual findings. She also identified and applied the
    correct legal principles in assessing the validity of the authorization.

[24]

We see no reason to interfere with the trial judges ruling. The
    conviction appeal is dismissed.

The Sentence Appeal

[25]

The trial judge was faced with a very difficult problem on sentence. The
    offences are serious. They are made much more serious by the fact that the
    appellant is a lawyer who used her professional standing to commit crimes
    against the administration of justice.

[26]

The appellant is a 54 year old first offender. She has a long marriage
    and two grown children. The appellant is respected in the legal community. Several
    letters filed on sentencing attested to her integrity, professionalism and
    commitment to her clients.

[27]

The appellant has had more than her share of personal problems. Most
    recently, her mother has become seriously ill and the appellant has assumed
    responsibility for her day-to-day care.

[28]

The trial judge was sensitive to the competing considerations presented
    on sentencing. She concluded that while the appellants mental and physical
    health concerns entitle her to some mitigation of sentence, there was nothing
    in the trial record or the evidence on sentencing to suggest that those
    health-related issues had any connection to the commission of the offences or
    the level of her moral culpability:
R. v. Zaher
, 2017 ONSC 582, at
    para. 25. We would defer to that assessment.

[29]

There was also no basis upon which we could interfere with the trial
    judges conclusion that a conditional sentence was inappropriate having regard
    to the paramount importance of general deterrence and denunciation: see reasons
    at paras. 56-57.

[30]

We would not interfere with the length of the sentence. The circumstances
    required a significant jail term. Hopefully, the appellant can get something
    positive out of this experience. Like the trial judge, we recommend that she be
    placed in a facility where she has access to meaningful psychological
    counseling and support. We trust the correctional authorities to take
    appropriate steps to facilitate that access.

[31]

Leave to appeal sentence is granted, but the appeal is dismissed.

Doherty J.A.

B.W. Miller J.A.

G.T. Trotter J.A.





[1]
There is a non-publication order in respect of evidence referring to a prior
    act of violence against the appellant.


