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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).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the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.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: C66003

Judges: Doherty, Gillese and Huscroft JJ.A.

Between: Her Majesty the Queen Respondent

and

Boutros Safieh Appellant

Counsel: Stacey Taraniuk, for the appellant Deborah Krick, for the respondent

Heard: September 13, 2021 by video conference

On appeal from the convictions entered by Justice M. McKelvey of the Superior Court of Justice on July 4, 2017.

Reasons for Decision

[1] At trial, the appellant challenged the constitutionality of the seizure of his cellphone at the time of his arrest. The Crown agreed that if the seizure breached s. 8 of the Charter, the evidence should be excluded. The trial judge held the seizure was constitutional. After the Charter motion failed, the appellant did not challenge the Crown’s case and the trial judge entered convictions on two counts of procuring a person under 18 for prostitution and two charges of making child pornography.

[2] On appeal, the appellant submits the trial judge made several errors in his reasons on the Charter motion and failed to adequately explain how he came to the conclusion that there was no breach of the appellant’s s. 8 rights.

[3] We do not accept the arguments advanced by the appellant. The issue on the Charter motion turned on the answer to a single, simple factual question – did the Crown establish, on the balance of probabilities, that the appellant was arrested in the hallway and not in his hotel room? If the arrest was in the hallway, the arrest and the search incidental to the arrest were lawful. If the arrest was in the hotel room, the arrest and the search incidental to the arrest were unlawful and unconstitutional.

[4] The trial judge concluded the arrest took place in the hallway, outside of the hotel room. He accepted the evidence of the three police officers who testified that the arrest occurred in the hallway. He rejected the evidence of the appellant that the arrest occurred in the hotel room. In coming to his conclusion, the trial judge reviewed the evidence of all four witnesses, honed in on the sole factual issue, and explained why he found the evidence of the police officers on that crucial issue credible, while finding that the appellant’s evidence on the same issue was not credible.

[5] We find no material misapprehension of the evidence by the trial judge. In explaining why he accepted the evidence of the police officers, the trial judge acknowledged inconsistencies in their evidence. He also noted deficiencies in the notetaking of one of the officers. The trial judge appreciated that the evidence of the officers as to the exact location in the hallway where the arrest occurred differed. The trial judge also indicated the officers gave somewhat different evidence as to which of them actually made the arrest in the hallway.

[6] Discrepancies among witnesses are common in trials. It is up to the trial judge to evaluate the inconsistencies and the impact, if any, those inconsistencies had on the officers’ credibility and reliability of their evidence. The appellant’s submissions offer no basis upon which this court can interfere with the trial judge’s assessment of the evidence of the officers and his conclusions with respect to the credibility and reliability of their evidence.

[7] The trial judge also explained why he did not accept the appellant’s evidence. The trial judge considered the appellant’s evidence that he did not go into the hallway to speak to the police by placing that evidence in the context of the totality of the evidence adduced at trial. He also examined the appellant’s evidence, having regard to the trial judge’s notions of common sense and human experience. That is what triers of fact are required to do.

[8] There is nothing in the record to offer any support for the contention that the trial judge engaged in “uneven scrutiny” of the Crown and defence evidence. The appellant’s arguments invite the court to retry this case. We cannot do that.

[9] The appeal is dismissed.

“Doherty J.A.”

“E.E. Gillese J.A.”

“Grant Huscroft J.A.”