



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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 643

DATE: 20210922

DOCKET: C65769

Doherty, Gillese and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

Boutros Safieh

Respondent

Stacey Taraniuk, for the appellant

Deborah Krick, for the respondent

Heard: September 13, 2021 by
    video conference

An application for leave to appeal and,
    if leave is granted, an appeal from an order made on July 20, 2018 by Justice
    M. McKelvey of the Superior Court of Justice, declaring s. 286.3(2)
    unconstitutional, reported at 2018 ONSC 4486; and from the sentence imposed on
    January 14, 2019, reported at 2019 ONSC 287.

REASONS FOR DECISION

[1]

The respondent was convicted of two counts of
    procuring a prostitute under age 18, contrary to s. 286.3(2) and two counts of
    making child pornography, contrary to s. 163.1(2) of the
Criminal Code
.
    Convictions under s. 286.3(2) carry a mandatory minimum of five years
    imprisonment.

[2]

The respondent challenged the constitutionality
    of the mandatory minimum, alleging it amounted to cruel and unusual punishment.
    On July 20, 2018, the trial judge held the section contravened s. 12 and was of
    no force and effect:
R. v. Safieh
, 2018 ONSC 4468.

[3]

Although the respondent was not sentenced on
    that date, the Crown immediately purported to appeal the sentence imposed,
    seeking an order setting aside the declaration of invalidity. The Crown filed a
    factum shortly thereafter, seeking the same relief.

[4]

The trial judge sentenced the respondent in
    January 2019 to a global sentence of six years:
R. v. Safieh
, 2019
    ONSC 287. The trial judge imposed the following sentences:

·

Procuring (count one)  two years;

·

Procuring (count two)  two years consecutive;

·

Making child pornography (count three)  one
    year consecutive; and

·

Making child pornography (count four)  one year
    consecutive.

[5]

The Crown appeal and an appeal brought by the respondent
    from the convictions (C66003) did not come before the court until September
    2021. The Crown continued to rely on the Notice of Appeal filed in July 2018
    and the factum filed shortly thereafter. That material sought only an order
    setting aside the trial judges declaration of invalidity.

A Preliminary Point

[6]

The Crowns Notice of Appeal and factum do not
    ask the court to vary the sentence imposed. Indeed, they could not have sought
    that relief, as both were filed long before any sentence was imposed.

[7]

The Crown appears to have been under the misapprehension
    that it had a right of appeal under Part XXI of the
Criminal Code
from
    the finding that the mandatory minimum sentence was unconstitutional. The Crown
    has no such right of appeal. The Crowns right of appeal is from the sentence imposed
    and not from any ruling that may have been made in the course of the sentencing
    proceedings:
Criminal Code
, s. 687.

[8]

The Notice of Appeal filed in the summer of 2018
    was a nullity. The Crowns right to seek leave to appeal the sentence imposed
    at trial crystallized only when the sentence was imposed in January 2019. After
    the sentence was imposed, the Crown should have filed a proper Notice of Appeal
    and factum, setting out the arguments in support of the constitutionality of
    the mandatory minimum and the variation sought by the Crown in the sentences
    imposed by the trial judge in January 2019.

[9]

Although the appeal was not properly commenced
    and a new Notice of appeal and factum should have been filed after sentencing,
    we are satisfied the respondent was not prejudiced. The appellant had timely
    notice of the Crowns intention to challenge the trial judges ruling on the
    constitutionality of the mandatory minimum. The Crown has also made it clear that
    it does not seek to increase the total sentence imposed on the respondent at
    trial. The Crown seeks, first and foremost, a determination by this court that
    the mandatory minimum is constitutional. The Crown also seeks a reconfiguring
    of the sentences imposed at trial to give effect to the five-year mandatory
    minimum required under s. 286.3(2). To achieve that end, the Crown proposed
    concurrent five-year sentences on each of the procuring charges, a consecutive
    sentence of one year on one of the making child pornography charges, and a
    further concurrent sentence of one year on the other making child pornography
    charge. This reconfiguration would produce the same total sentence as was
    imposed by the trial judge.

The Merits

[10]

It is unnecessary to set out the facts of the
    case. Those facts can be found in the trial judges ruling on the
    constitutionality of s. 286.3(2) (
R. v. Safieh
, 2018 ONSC 4486 and his
    reasons for sentence (
R. v. Safieh
, 2019 ONSC 287).

[11]

The trial judge followed the s. 12 methodology
    laid down in
R. v. Nur
, 2015 SCC 15, at para. 46, and recently applied
    in
R. v. Morrison
, 2019 SCC 15, at paras. 143-54. No one argued the
    mandatory minimum was unconstitutional, as applied to the respondent. The
    constitutional arguments focused on the reasonable hypotheticals presented to
    the trial judge. The Crown agreed that the hypotheticals were properly
    considered.

[12]

In finding the section unconstitutional, the
    trial judge focused on the second hypothetical:

After having begun negotiating with a pimp via
    text messaging in order to work for him so she can pay off her drug debts, an
    18-year-old prostitute, at the behest of her pimp, approaches her 17-year-old
    friend to see if she also wants to act as a prostitute for the pimp. The older
    girl is aware that the younger girl also has drug debts of her own. The younger
    girl jumps at the opportunity. The 18-year-old then brings the 17-year-old girl
    along with her for a face-to-face meeting with the pimp with the knowledge that
    the purpose of the meeting is for the pimp to continue recruiting herself and
    to recruit the 17-year-old. During the meeting, the pimp addresses the nature
    of the working relationship he will have with both girls. The pimp himself has
    no direct contact with the 17-year-old until they actually meet in person. As
    such, the 18-year-old directly assisted the pimp in recruiting the 17-year-old.
    The 18-year-old prostitute expects no financial gain or any other benefit from
    bringing the younger girl to the meeting. The 18-year-old prostitute is the
    product of the group home system and has been manipulated, exploited and
    prostituted by a pimp when she was a minor.

[13]

The facts used in the hypothetical outlined
    above are similar to the facts in
R. v. Robataille
, 2017 ONCJ 768, a
    case involving a charge of obtaining a benefit from sexual services provided by
    a person under 18, contrary to s. 286.2(2) of the
Criminal Code
. That
    provision provides for a two-year mandatory minimum.

[14]

On the facts in the hypothetical, the offender
    is herself a victim of the same crime. Her choices are significantly
    constrained by her circumstances, including her addiction, background, and
    ongoing relationship with her pimp. In addition, her offence involves no
    coercion or threats targeting the victim. Nor does the offender in the
    hypothetical gain any monetary advantage from her actions.

[15]

Following
Nur
, the trial judge
    considered, having regard to the applicable principles of sentencing, but
    excluding the mandatory five-year minimum, the appropriate sentencing range for
    the offender described in the hypothetical:
Nur
, at para. 46. The trial
    judge acknowledged that the offence, as described in the hypothetical, remained
    a serious offence for which denunciation and general deterrence were primary
    considerations. The trial judge further held, however, that on the facts of the
    hypothetical, the offenders moral culpability was substantially reduced. He
    said, at para. 46:

While the court must still recognize that the
    principal factors to consider on sentencing are denunciation and general
    deterrence, the circumstances in a case like
Robataille
would in my
    view constitute exceptional circumstances  and would serve to reduce the
    appropriate sentence to well below the normal range. The failure to take these special
    circumstances into account would serve only to revictimize the offender and
    punish her based on her prior sexual abuse as a child.

[16]

The trial judge concluded that the appropriate
    sentence for the hypothetical offender was between 2 and 2 ½ years. The trial
    judge recognized that the mandatory minimum sentence of five years amounted to
    cruel and unusual punishment only if a five-year sentence was grossly
    disproportionate to the sentence that would have been imposed on the
    hypothetical offender, but for the mandatory minimum. Although the concept of gross
    disproportionality is probably incapable of precise definition, there can be no
    doubt that it describes a high threshold. Sentences which are sufficiently
    excessive to merit appellate intervention are not necessarily grossly
    disproportionate for the purposes of s. 12 of the
Charter
:
Nur
,
    at para. 39. The trial judge was satisfied that a sentence of five years
    imposed on a person for whom two years would have been an appropriate sentence,
    crossed over the grossly disproportionate threshold:  Reasons, at para. 47.

[17]

The trial judges ruling striking down s.
    286.3(2) has been followed in at least two other decisions in the Superior
    Court:
R. v. J.G.
, 2021 ONSC 1095, at para. 5;
R. v. Boohoo
,
    2018 ONSC 7207, at para. 13.

[18]

This courts decision in
R. v. Joseph
,
    2020 ONCA 733, at paras. 143-55, striking down the two-year minimum in s.
    286.2(2), also provides support for the trial judges conclusion. While the
    procuring offence in this case is more serious than the receiving of a benefit
    offence described in s. 286.2(2), the offences are closely related and raise
    very similar reasonable hypotheticals for consideration. The victim/offender
    hypothetical can apply to both.

[19]

The analysis in
Joseph
also provides some assistance
    with the question of when a mandatory minimum sentence will be regarded as grossly
    disproportionate.
Joseph
clearly contemplates that differences of significantly
    less than three years between a mandatory minimum sentence and the appropriate sentence
    can, in some circumstances, provide a basis for a finding that the mandatory
    minimum is grossly disproportionate. The reasoning and conclusion reached in
Joseph
offers support for the trial judges analysis.

[20]

We agree with the trial judges analysis of the
    significantly reduced moral culpability of the offender described in the
    hypothetical. Assuming, without deciding, that a sentence of two years, as
    opposed to a sentence of something less than two years, would have been an
    appropriate sentence for the offender described in the hypothetical, we agree
    that a sentence of five years  two and one-half times the length of the
    appropriate sentence  would be grossly disproportionate. We note that although
    the Crown argued in her factum that a sentence of five years would not
    necessarily be grossly disproportionate, she did not pursue that argument in
    her oral submissions.

Disposition

[21]

The trial judge correctly held that s. 286.3(2)
    is inconsistent with s. 12 of the
Charter
and therefore of no force
    and effect. The Crown appeal is dismissed.

Doherty J.A.

E.E. Gillese J.A.

Grant Huscroft J.A.


