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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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

CITATION: R. v. Badali, 2016 ONCA 686

DATE: 20160916

DOCKET: C60712

Laskin, Feldman and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Salvatore Joseph Badali

Appellant

Gregory Lafontaine, for the appellant

Lucy Cecchetto, for the respondent

Heard and released orally: September 7, 2016

On appeal from the conviction entered on June 30, 2015 by Justice Bruce A. Glass of the Superior Court of Justice, sitting without a jury.

ENDORSEMENT

[1] The appellant was convicted of procuring a 16-year-old girl into prostitution, living off the avails of prostitution, and obtaining sexual services for consideration. He was sentenced to a global sentence of three years (less two months’ credit for presentence custody). The appellant appeals his convictions and his sentence. He contends that the convictions are unreasonable and that the sentence is excessive.

[2] On the conviction appeal we called on the Crown only on the procuring conviction. In our view, that conviction was reasonably supported by the evidence. Procuring requires persuasion or encouragement to be a prostitute. The appellant held out the possibility of significant financial compensation for engaging in prostitution. The complainant was trained by the other attendants and shown an escalating fee schedule for sexual services. This evidence showed sufficient persuasion to support the conviction.

[3] The appellant urges us to find that the trial judge misapprehended the evidence when he stated that the complainant had not worked previously as a prostitute. The complainant did testify she may have had one or two clients in the past, but the essence of the trial judge’s reasons was that she had not actively worked as a prostitute. Even if the trial judge’s statement was in error – and we are not satisfied that it was – it was at most a harmless error. It does not undermine the trial judge’s finding that the procuring conviction was made out beyond a reasonable doubt.

[4] The other two convictions are reasonably supported by the evidence and we see no error in the trial judge’s analysis for either of those two convictions.

[5] On the sentence appeal, we are not persuaded that the sentence is excessive. We agree with the trial judge’s reasons at para., 22 of his sentencing decision where he said:

The victim is only 16 years of age. Fortunately, the police happened to act at a time that shut down this involvement shortly after the victim commenced working. Nevertheless, she carries emotional scars from her experience. Drawing a young girl into prostitution is reprehensible. Paying her for sexual experiences when he had to turn a blind eye to her age is without excuse. All acts should be denounced. Both Mr. Badali and others should be discouraged from such activity.

[6] We also agree with what the Crown said at para. 53 of her factum when she stated that the complainant was a vulnerable 16-year-old; the vulnerability was evident to the appellant who saw self-inflicted cuts to her arms before he hired her; and he then took advantage of her vulnerability by engaging in sexual intercourse with her for money during her job interview, while turning a blind eye to her age.

[7] The offences of procuring and living off the avails of juvenile prostitution are serious offences and their seriousness must be reflected in the gravity of the sentences the court imposes. Accordingly, both the conviction appeal and the sentence appeal are dismissed.

“John Laskin J.A.”

“K. Feldman J.A.”

“Grant Huscroft J.A.”