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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2012-10-16

Docket: C55595

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

Between:

Her Majesty the Queen

Respondent

and

Raza Husain

Appellant

Counsel:

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 appellant's 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 appellant's 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 appellant's 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 appellant's 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 appellant's 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 appellant's 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 Crown's 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."