



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), (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    that could identify the complainant or a witness shall not be published in any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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02,
    279.03, 346 or 347,

(ii)  an
    offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent
    assault on female), 156 (indecent assault on male) or 245 (common assault) or
    subsection 246(1) (assault with intent) of the
Criminal Code
, chapter
    C-34 of the Revised Statutes of Canada, 1970, as it read immediately before
    January 4, 1983, or

(iii) an
    offence under subsection 146(1) (sexual intercourse with a female under 14) or
    (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction
    of a female between 16 and 18), 153 (sexual intercourse with step-daughter),
    155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian
    procuring defilement) or 167 (householder permitting defilement) of the
Criminal
    Code
, chapter C-34 of the Revised Statutes of Canada, 1970, as it read
    immediately before January 1, 1988; or

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

(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 complainant of the right to
    make an application for the order; and

(b)  on application made by the complainant, the prosecutor
    or any such witness, 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).

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. Husain, 2012
    ONCA 697

DATE: 20121016

DOCKET: C55595

Winkler C.J.O., Blair and Hoy J.J.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Raza Husain

Appellant

Catriona Verner, for the appellant

Matthew Asma, for the respondent

Heard: October 12, 2012

On appeal from the conviction entered and the sentence
    imposed on September 12, 2011 by Justice Susan G. Himel of the Superior Court
    of Justice, sitting without a jury.

By the Court:

Overview

[1]

The appellant pleaded guilty, with the assistance of counsel in a
    negotiated plea bargain, to five counts, including one count of sexual assault
    against an underage girl and one count of attempting to procure a second
    under-age girl to become a prostitute.  The girls were aspiring models; they
    believed that the appellant was a professional photographer.

[2]

Following a joint submission, the appellant was sentenced on the five
    counts to five years and two months in prison and made subject to an order
    under s. 161 of the
Criminal Code
prohibiting him from attending near
    certain places where persons under 16 years of age may be present, in accordance
    with the joint submission.

[3]

On this appeal, he challenges his conviction on the two specific counts
    described above.  He does not challenge the agreed statement of facts or seek
    to impugn the competence of his counsel at trial.  Rather, he argues that the
    agreed facts do not support the convictions.

[4]

At trial, the appellant indicated that he pled guilty to the count of
    sexual assault, and that he plead guilty to the count of attempting to procure
    the second complainant to become a prostitute if my actions constitute the
    elements of that offence.  Thereafter, the trial judge specifically inquired
    whether the appellant understood that a plea is an admission of the essential
    elements of the offence and understood the nature and consequences of pleading
    guilty.  He answered that he did.  On the basis of the agreed facts, and the
    agreement of counsel, the trial judge made findings of guilt on the two counts.

[5]

The appellant also seeks leave to appeal his sentence, arguing that the
    sentence imposed was beyond the appropriate range.  He also argues that there
    is no evidence to support a finding that the appellant poses a risk of
    approaching young girls in public places and the s. 161 order accordingly
    should not have been imposed.

Sexual Assault Count

[6]

We first address the count of sexual assault, to which the appellant
    plead guilty, without qualification.  The admitted facts are that the appellant
    had unprotected sexual intercourse with the first complainant periodically
    between July 2007 and early 2009.  From July 2007 until May 1, 2008 (the date
    the law changed to increase the age of consent to 16, from 14), the first
    complainant was 14 and 15 years old and therefore legally able to consent. 
    From May 1, 2008, until August 4, 2008, the first complainant was 15 years old
    and therefore, under the legal age of consent, namely 16.  From August 5, 2008,
    until early 2009, she was 16 and legally able to, and did, consent.

[7]

The appellant argues that the admitted periodic intercourse over
    nearly 18 months does not support a finding that intercourse occurred during
    the period between May 1, 2008, and August 4, 2008.

[8]

At the time the appellant entered his plea, he was represented by
    counsel and, as noted above, he does not raise an ineffective assistance of
    counsel ground on appeal.  There is accordingly a presumption that his plea was
    valid.  The appellant has not rebutted that presumption.

[9]

Liability for the offence charged was dependant on the appellant having
    sexual contact with the first complainant between May 1 and August 4, 2008.  The
    appellants guilty plea to this count was informed and unequivocal.  It is
    clearly implicit from the plea that a sexual encounter occurred during this
    3-month period.  Based on the admitted facts and the appellants response to
    her specific inquiry, the trial judge was entitled to conclude that intercourse
    occurred during the relevant period and find the appellant guilty of this
    count.

Procuring Count

[10]

The
    appellant took photos of the second complainant, including at his house, and a pattern
    of socializing developed, with the appellant providing vodka and food.  Sometimes
    the appellants friends joined them.  The second complainant was then 13 years
    of age.  An acquaintance of the appellant began supplying her with Oxycontin
    pills.  Sometime thereafter, the appellant told the second complainant that he
    would pay her $100 to have sex with him.  Over a period of 10 months, the
    second complainant would periodically go to the appellants house to have unprotected
    sex in exchange for money.  The appellant told the second complainant that she
    was his special girl and he did not want her to date anyone else.  In spite
    of this, the appellant suggested to the second complainant at one point that if
    she wanted extra money, she could go and see his friends and they would pay her
    for sex.  Her answer was always no.

[11]

The
    relevant portion of s. 212(1)(d) of the
Criminal Code
provides that
    everyone who procures or attempts to procure a person to become a prostitute is
    guilty of an indictable offence.  The appellant argues: (1) that his offer of
    an opportunity to the second complainant to make money by having sex with his
    friends did not amount to an attempt to procure; and (2) that the section
    only targets those who were not already having sex for money to become
    prostitutes, and there was no basis on the agreed facts for the trial judge to
    find that the second complainant was not already a prostitute when she met the
    appellant.

[12]

Given
    the agreed statement of facts and the guilty plea, it was open to the trial
    judge to find that the appellants offer to pay the second complainant for sex
    (which was accepted) amounted to procuring or that his subsequent offer that
    his friends would pay her for sex amounted to an attempt to procure.  The
    appellants plea was an admission to all the elements of the offence 
    including that the second complainant was not a prostitute.  Moreover, the
    agreed facts clearly depict the second complainant as being groomed for sex,
    which is inconsistent with her having been a prostitute at the time she met the
    appellant.  We note that earlier in the relationship, she refused to perform a
    lap dance for the appellant.  Having made an informed plea, the appellant seeks
    to take advantage of imprecision in the wording of the agreed facts.  He has
    not rebutted the presumption that his plea was valid.

Sentence

[13]

As
    this court stated in
R. v. Murray
, 2007 ONCA 799, at para. 7:  This
    court will not lightly interfere with a sentence imposed based [on] the
    acceptance of a joint submission.

[14]

The
    sentence imposed was within the appropriate range and we see no basis for
    interfering.

[15]

The
    s. 161 order was, in our view, a part of the joint submission and, indeed, was warranted. 
    With the Crowns consent, we are persuaded that the clarification sought by the
    appellant  namely that the words and other locations should not be part of
    the order  is appropriate.  A new s. 161 order, with that change shall
    accordingly issue.

Disposition

[16]

In
    the result, the appeal against conviction is dismissed, leave to appeal
    sentence is granted, and the appeal against sentence is dismissed.

Released:
Oct 16, 2012                                          Warren
    K. Winkler C.J.O.

WKW                                                                 R.A.
    Blair J.A.

Alexandra
    Hoy J.A.


