R. v. Safieh, 2019 ONSC 287

CITATION: R. v. Safieh, 2019 ONSC 287

COURT FILE NO.: CR-15-06746

DATE: 20190114

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

BOUTROS SAFIEH

Defendant

Michael Ventola, for the Crown

Stacey Taraniuk, for the Defendant

HEARD: January 19, March 28, 29, June 12, July 20 and November 19, 2018

PUBLICATION BAN

Pursuant to s. 486.4, of the Criminal Code, no information that could identify the complainants shall be published in any document or broadcast or transmitted in any way.

REASONS FOR SENTENCE

MCKELVEY J.:

Introduction

1The accused in this case pleaded not guilty to a series of sex related offences. He was found guilty, however, based on an agreed statement of facts which was presented to the court pursuant to s. 655 of the Criminal Code, and which admitted all of the essential elements for all of the offences charged. The first two counts for which there was a finding of guilt were offences under s. 286.3(2) of the Criminal Code. Each of the two offences related to a different complainant. Section 286.3(2) of the Criminal Code provides as follows:

Everyone who procures a person under the age of 18 years to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(2), recruits, holds, conceals or harbours a person under the age of 18 who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of five years.

2Counts three and four of the indictment allege that the accused made child pornography in the form of photographs contrary to s. 163.1(2) of the Criminal Code. Each of counts three and four related to the two different complainants. Counts five and six were charges related to possession of child pornography. Both of these charges were stayed by the Crown based on the Kienapple principles. In the end therefore, I am required to sentence Mr. Safieh on two counts of procuring a person under the age of 18 years to offer or provide sexual services for consideration pursuant to s. 286.3(2) and for two counts of making child pornography contrary to s. 163.1(2) of the Criminal Code.

3There is a minimum sentence of five years under s. 286.3(2). Pursuant to a decision dated July 20, 2018, I concluded that the mandatory minimum sentence violated s. 12 of the Charter and is therefore not applicable to this sentencing.

4For purposes of sentencing, I have relied on the agreed statement of facts which was filed by the parties prior to my finding of guilt which occurred on July 5, 2017. I have also relied on a pre-sentence report dated September 15, 2017 as well as oral submissions. I was advised that neither of the complainants in this case elected to provide victim impact statements.

General Background

5According to the agreed statement of facts, the accused came into contact with an underage female living in a group home who was 16 years old (“Complainant No. 1”). He persuaded her to become a child prostitute with promises of drugs and money. He arranged to meet with the minor at a hotel room. Prior to this meeting the complainant advised the accused that there was another underage girl at the group home interested in working for him (“Complainant No. 2”). The accused invited both underage girls to attend at the hotel room. He explained to them at this meeting that he would rent hotel rooms for them and that they were to immediately turn over all the money to him. He told the two girls about another younger girl who was working as a prostitute and was beaten when she failed to turn all the money over to her pimp. The accused proceeded to take photographs of the two girls in various stages of undress in order to advertise their services on the internet. He also discussed with the two young girls that he had set up “dates” for them for the following weekend. As the accused was finishing with the photographs, two police officers knocked on the hotel room door. The police had been called by the group home to report the girls missing. The police officers escorted the girls down to the police cruisers. The accused was arrested by the police approximately four days later. Because of the police intervention, the photographs of the two girls were never released on the internet, nor were the two young girls actually involved in prostitution.

Position of the Crown and the Defendant

6The Crown position is that for each of the procuring charges five years would be at the low end of the range for an offender who brings children into the sex trade. The Crown argues, however, that based on the totality principle the appropriate range for a global sentence would be six to eight years. The Crown position is that a global custodial sentence of seven years (which is the mid-point of the range) should be imposed based on an allocation of two and a half years for each of the child procuring offences and one year each for both of the charges for making child pornography.

7It is significant to note that s. 718.3(7)(b) of the Criminal Code requires that when a court sentences an accused for more than one sexual offence committed against a child, the court shall direct that the sentences of imprisonment it imposes shall be served consecutively. For purposes of this case, the defence agrees that pursuant to this provision, the sentences for each of the offences must be served consecutively.

8The defence position is that the global sentence for Mr. Safieh should be four years. This is based on a one year sentence for each of the child procuring offences and one year for each of the producing child pornography offences. The defence argues that based on the totality principle, the sentence should then be reduced to three years.

Credit for Pre-Trial Custody

9The parties were in agreement that Mr. Safieh spent two days in pre-trial custody and that there should therefore be a deduction of three days for pre-trial custody. In accordance with this agreement, I order that there be a deduction of three days from Mr. Safieh’s sentence.

Ancillary Orders

10The Crown has sought a number of ancillary orders as follows:

(a) As the offence is designated as a primary designated offence under s. 487.05(1) of the Criminal Code, the Crown seeks an order requiring the defendant to provide a sample for DNA analysis.

(b) The Crown seeks an order under s. 109(1) of the Criminal Code prohibiting the accused from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of 10 years.

(c) Under s. 490.012(1) the defendant’s convictions are for designated offences and the Crown seeks an order requiring the defendant to comply with the Sex Offender Information Registration Act. As he has been convicted of two or more offences, the duration of this proposed order is for life in accordance with s. 490.013(2.1).

(d) The Crown seeks an order under s. 743.21 prohibiting the accused from communicating directly or indirectly with the two complainants for a period of 10 years.

(e) The Crown seeks an order under s. 161(1) of the Criminal Code and specifically ss. (a), (a.1), (b), (c) and (d). For purposes of ss. (a.1), the Crown seeks an order that the accused remain two kilometres away from the two complainants in this action. With respect to the limitation regarding the use of the internet under ss. (d), the Crown agrees that the order should be limited to the use of the internet for purposes of accessing content relating to prostitution. With respect to the restriction under ss. (a) which deals with attending a public park or public swimming area the Crown agrees that this provision shall not apply when Mr. Safieh is with his own children and is accompanied by another adult person. Further, with respect to ss. (c) which deals with communicating with a person under the age of 16 years, this provision shall not apply to communications between Mr. Safieh and his own children. With respect to the exceptions under ss. (a) and (c) both of these exceptions are subject to any further order a Family Court may make. The Crown proposes that the prohibitions under this section apply for a period of 10 years in accordance with s. 161(2) of the Criminal Code.

(f) The Crown seeks an order s. 490.1(1) of the Criminal Code forfeiting all property of the accused in the possession of the York Regional Police to Her Majesty the Queen in Right of Ontario.

11The defendant does not object to any of the ancillary orders. These ancillary orders will therefore form part of the defendant’s sentence.

Circumstances of the Offender

12Mr. Safieh was 19 years old when he met Complainant No. 1. He was 20 years old at the time of the offence. According to the pre-sentence report, Mr. Safieh maintains the unwavering support of his family. There is no indication of any problematic use of alcohol or illicit drugs. The pre-sentence report indicates he has not been employed since his arrest, but that he was taking a real estate course. In sentencing submissions Mr. Safieh’s counsel advised that Mr. Safieh did not complete the real estate course. Given his conviction, it was indicated that Mr. Safieh would not be eligible to obtain a license. It was noted in submissions that since the pre-sentence report was prepared, Mr. Safieh has opened his own moving business. Mr. Safieh does not have a prior criminal record. There have been no issues about his compliance with the terms of his bail.

13The accused is the father of a four and a half year old daughter. The issue of custody is currently before the courts. He currently has supervised access once a week.

14In the pre-sentence report it indicates that the accused at that time was in a relationship with an 18 year old female. This relationship has continued up to the present time

15In the pre-sentence report it states that when Mr. Safieh attended the Keswick Probation and Parole office on July 24, 2017 to complete his interview for the report, he was “minimally cooperative, and not overly forthcoming with information”. Mr. Safieh refused to discuss the charges before the court on the advice of his counsel and the pre-trial report therefore concludes that no opinion or conclusion could be made about the accused’s acceptance of responsibility for his behaviour, or level of remorse.

16I accept, however, that Mr. Safieh’s agreement to the agreed statement of facts does demonstrate some level of acceptance of responsibility for his actions. Having said that, the evidence which was found on his cellphone made the prospect for a successful defence very poor. There is little evidence before this Court to suggest any remorse on the part of Mr. Safieh for his actions. Neither does there appear to be any evidence that he appreciates or empathizes with the very serious harm that his actions were leading to.

Applicable Legal Principles

17The principles of sentencing are set out in s. 718 of the Criminal Code which provides as follows:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

18The case law makes it clear that in the context of cases involving adult sexual predators denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing. See R. v. D.(D.), 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061.

19This position is further reinforced by the provisions of s. 718.01 of the Criminal Code which provides that when a court imposes a sentence for an offence that involves the abuse of a person under the age of 18 years, it should give primary consideration to the objectives of denunciation and deterrence of such conduct.

20Further, s. 718.2 of the Criminal Code provides that where a court imposes a sentence it shall take into consideration certain principles which include evidence that the offender in committing the offence abused a person under the age of 18 years. In the present case, Complainant No. 1 was 16 years old when the offence occurred. Complainant No. 2 was only 14 years old at the relevant time.

21In R. v. R.B., 2014 ONCA 840, [2014] O.J. No. 5625, the Ontario Court of Appeal summarized the process a sentencing judge should follow when sentencing for multiple offences. Specifically the Ontario Court of Appeal stated,

Second, from reading the sentencing proceedings, we think the sentencing judge followed the approach endorsed by this court for sentencing for multiple offences – that is, first determine a global sentence and then assign sentences for each offence and designate each as concurrent or consecutive to fit within the global sentence. Trial counsel framed their submissions in terms of a global sentence. The defence argued for two to three years and the Crown for five to six years. The sentencing judge appears to have come down the middle.

22The above approach reflects what has been described as the totality principle. The totality principle recognizes that where a sentencing judge orders an offender to serve consecutive sentences for multiple offences consideration must be given to ensure that the total sentence imposed does not offend the principle of proportionality to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As noted in the text Clayton C. Ruby et al, Sentencing, 9th ed. (Markham: Ont.: LexisNexis Canada, 2017), the authors state that a sentencing judge should fix appropriate individual sentences to arrive at a total sentence, and then adjust the total sentence to make sure that it does not exceed what would be just and appropriate in light of the culpability and prospects of the offender (see para. 2.76).

Analysis

23In my decision considering the mandatory minimum under s. 268.3(2) dated July 20, 2018, I canvassed a number of the decisions dealing with the procuring offences which are clearly the most serious offences before me. I have concluded that the sentencing range for procuring would normally be in the 4 to 6 year range. That range would increase with the use or attempted use of force or violence.

24There are, a number of serious aggravating factors in this case. The first aggravating factor is the age of the two victims who were 16 and 14 years old respectively. They were both under the care of the Children’s Aid Society and had little other support in the community. They were living in a group home and both were drug addicts. Because of the drug addictions both of the complainants were particularly vulnerable and easy prey for this type of offence. Similarly, the complainants had little if any financial resources which added to their vulnerability.

25Offering drugs to young drug addicts and large sums of money to vulnerable children who have virtually nothing are strong incentives that were used by Mr. Safieh as leverage to recruit his young victims. This is reflected in the agreed statement of facts where Complainant No. 1 states,

It’s just he seems so, like convincing and like he knows how to use his words to make – make you want it, like, want those things ‘cause like what person doesn’t want money over like $5,000 a night, what person doesn’t want to be able to afford their clothes and like their own phone and afford everything. So like he’s just really convincing especially for a kid who lives in a group home who has nothing. He’s pretty much saying, I can give you the life that you never had. So that just pretty much piqued my interest and I was like, okay.

26She further states,

That I can be like I guess his ‘Top ho’ and stuff like that where I’ll get like, I can get paid $5,000 a night, like more than that like, I can get bear – bear tracks – I can get a lot, bear just means a lot. I can get a lot of drugs and like as much alcohol as I want, and like, I never have to worry about coming home. I can just run away and stuff like that and live on my own in my own apartment and stuff like that.

27There is also evidence of Mr. Safieh engaging in grooming behaviour with respect to Complainant No. 1. Mr. Safieh initiated contact with Complainant No. 1 as a friend and had a brief sexual liaison during the summer of 2014. Later, in January and February of 2015, Mr. Safieh attempted to convince Complainant No. 1 to breakup with her boyfriend and become Mr. Safieh’s “side chick” instead. He told her “being my side chick is a lot better than that loser’s main girl trust me”. Complainant No. 1 initially refused Mr. Safieh’s approach but eventually told him that she had broken up with her boyfriend, which was followed up by inducements for her to work for him as a child prostitute.

28It is also significant that Mr. Safieh committed these offences for profit. He was prepared to expose two young children to the harm of underage prostitution for his own personal gain.

29There is also a significant degree of coercion. According to the agreed statement of facts, Mr. Safieh explained to his victims that he would set the rates for their services and they were to give him all of the money received from the clients. He told both of them about another girl who was working as a prostitute and was beaten when she failed to turn over all of the money to her pimp. The clear inference which I take from these comments is that Mr. Safieh was sending a message to the two victims that if they failed to pay him all of the money they received, they would likely suffer physical harm.

30A further aggravating factor is Mr. Safieh’s intention to move his two victims around the province. According to the agreed statement of facts, he told the two victims that they would be working initially in Newmarket for the first two to three weeks, but they would then be moved to other areas including Toronto, Kingston, Oshawa and Barrie, since people would likely be looking for them in Newmarket. The apparent intention was to have the two young victims disappear into the sex trade and minimize the risk that they would be able to obtain support from the Children’s Aid Society which was responsible for their welfare or any of the authorities who were looking for them. This would make it far more difficult for them to try and escape the sex trade.

31All of these aggravating factors point to an individual who had no empathy with his victims and who had no hesitation in using every means at his disposal to exploit them for his own personal gain. All of these factors lead me to conclude that Mr. Safieh’s level of moral culpability was at the highest level for this type of offence. I view his conduct as truly egregious.

32It is also significant that these offences were not committed spontaneously in a fleeting lapse of judgment, but instead were carefully planned by Mr. Safieh. The agreed statement of facts documents that on March 2, 2015, when he was booking dates for the victims, Mr. Safieh engaged in a number of internet searches including:

(a) how pimps recruit

(b) six things real pimps want you to know

(c) confessions of a college pimp

(d) backpage.com

33There, however, are a number of mitigating factors that also need to be considered. Although Mr. Safieh did not enter a plea of guilty, he did acknowledge the evidence against him in the agreed statement of facts which precluded the necessity of the victims having to give evidence at trial. His agreement to the statement of facts came very late in the day, though. It occurred after the jury was selected for trial. Both of the victims were required to testify at the preliminary inquiry. And, as noted earlier the prospects for a successful defence were poor.

34It is also significant that Mr. Safieh has no prior criminal record and has strong support from his family. I have also considered that in light of Mr. Safieh’s young age there is still a realistic expectation for rehabilitation. My views in this regard are tempered by the fact that Mr. Safieh has not shown any evidence of remorse about his conduct.

35One of the major points advanced by counsel for Mr. Safieh in his submissions is that there was no actual prostitution which occurred in this case and none of the photographs he took of the two young victims were released on the internet. Thus, it is argued that the gravity of Mr. Safieh’s offences is considerably lessened. While it is acknowledged that he has a high moral culpability, counsel argued that the gravity of the offence is dramatically less than in other cases. It is suggested that sentences in other procuring cases does not represent a reliable guide for a sentence in this case.

36I accept that the gravity of the offence has been significantly reduced. However, the impact on sentence is not nearly as great as suggested for two reasons. First, the reason that the young victims were not exposed to prostitution and having their photos exposed to the internet has nothing to do with the conduct of Mr. Safieh, whose intentions were clear, but rather by the conduct of police whose diligence meant that the accused was discovered before the young children could be exposed to the sex trade. In other words his moral culpability is unaffected. Further, the main criteria for sentencing in cases like this must focus on denunciation, together with general and specific deterrence, together with the need to separate offenders from society. Mr. Safieh’s very high moral culpability and the need to denounce and deter this type of conduct both generally and specifically require a substantial sentence. While I accept, therefore that the gravity of the offence has been lessened by the intervention of the police and while it is a factor which must be taken into account in considering an appropriate sentence, its effect in my view does not justify a dramatic reduction in sentence.

37As noted in my earlier decision it is beyond doubt that severe harm is caused by child trafficking. The horrors and evils of child prostitution are well documented both in the case law and the academic literature. As noted by Justice Moldaver in the Supreme Court of Canada decision in R. v. D.(D.), 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061, at para. 34,

The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price.

38Having reviewed the authorities referred to by both the Crown and defence, I have concluded that the procuring charges would normally attract a sentence in the area of five years. Both Crown and defence have suggested sentences for the production of pornography of one year for each offence which I accept as reasonable. Based on this analysis and in light of the fact that the sentences are consecutive, the total sentence would be 12 years. I accept, however, that the totality principle requires a reduction in the total sentence. In my view it is reasonable to proceed on the basis that a sentencing range of six to eight years is reasonable as proposed by the Crown. It reflects a strong message of denunciation fir Mr. Safieh’s conduct and also serves as a strong deterrent to both Mr. Safieh and others who might be inclined to engage in similar conduct. At the same time it recognizes that Mr. Safieh is a young first time offender, has some potential for rehabilitation and has no previous criminal record.

Disposition

39Mr. Safieh would you please stand. For the foregoing reasons I sentence you to a global sentence of six years incarceration subject to credit for the time already served. The sentence of six years is to be apportioned on the following basis. You are sentenced to two years for each of the procuring offences and one year for each of the producing pornography offences. All sentences are to be served consecutively. You are entitled to credit for the time already served. You are also subject to the ancillary orders as outlined earlier in these Reasons.