Publication Ban Warning

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 complainant’s 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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

Date: 20210922 Docket: C65769

Doherty, Gillese and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen Applicant (Appellant)

and

Boutros Safieh Respondent

Counsel: 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 4486.

[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 judge’s declaration of invalidity.

A Preliminary Point

[6] The Crown’s 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 Crown’s 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 Crown’s 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 Crown’s intention to challenge the trial judge’s 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 judge’s 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 offender’s 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 judge’s 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 court’s 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 judge’s 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 judge’s analysis.

[20] We agree with the trial judge’s 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.”