COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Shuman, 2021 ONCA 638

DATE: 20210920

DOCKET: C66257

Doherty, Gillese and Huscroft JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jeffrey Shuman

Appellant

Stephen
    Proudlove, for the appellant

Gregory Furmaniuk, for the respondent

Heard: September 17, 2021 by video conference

On appeal from the sentence imposed on July 25, 2017, by
    Justice Cynthia Johnston of the Ontario Court of Justice.

REASONS FOR DECISION

[1]

The appellant pleaded guilty to seven counts of robbery with a firearm arising
    from bank robberies he committed in Ontario between 2010 and 2015. At the
    sentencing hearing, the parties agreed that the sentences should run
    concurrently because otherwise the appellant would have been sentenced to 28
    years, given the four-year mandatory minimum. He was sentenced to 15 years in
    prison, less credit for pre-sentence custody.

[2]

The appellant raises two issues on his sentence appeal and argues that a
    global sentence of 12-13 years is appropriate. He submits that:

1.

the 15-year sentence is outside the sentencing range for these offences
    and demonstrably unfit; and

2.

the reasons for sentence are insufficient because the sentencing judge
    did not (a) explain why 15 years was the appropriate sentence, (b) explain how
    she apportioned the 15 years, or (c) mention the totality principle.

[3]

We accept neither submission. We see no error on the part of the sentencing
    judge.

[4]

In respect of the submission that the sentence is demonstrably unfit, we
    begin by noting that it is not far off that sought by the appellant on appeal.
    In any event, the sentence is fit. Deterrence and denunciation were paramount
    for these serious offences that traumatized innocent, vulnerable and unsuspecting
    bank employees, and the community more broadly.

[5]

Nor do we accept the complaints levied against the adequacy of the reasons
    for sentence. Those reasons leave no room for doubt as to how and why the sentencing
    judge arrived at the 15-year sentence. She carefully set out the facts, applicable
    legal principles, nature of the offences, and the appellants circumstances. She
    then noted the following aggravating factors: the robberies were sophisticated,
    planned and premeditated; the appellant used intimidation and threats of
    violence against vulnerable bank employees; he brandished a handgun on each
    occasion; in some of the robberies, he confined bank employees to locked rooms
    or bank vaults after he fled; and, he had a history of committing bank
    robberies, having been convicted in the United States of 14 bank robberies in
    Florida and Tennessee, for which he was sentenced to 12 years imprisonment.
    The sentencing judge also expressed significant doubt that the appellant was
    remorseful or appreciated the gravity of his actions and their significant impact
    on the victims and community. The sentencing judge also identified the
    mitigating factors: the appellant pleaded guilty on the eve of trial; he used a
    pellet gun  not a handgun  in the commission of the offences; he did not use
    gratuitous violence in committing the robberies; on occasion, he waited until
    civilians left the bank before robbing it; and, he agreed that 100,000 Euros
    seized from his apartment were robbery proceeds and should be used toward
    restitution.

[6]

Further, the sentencing judge was clearly alive to the totality
    principle. While the Crown sought a penitentiary sentence of 17 ½ years and the
    defence sought a sentence of 10 years, both parties asked for concurrent
    sentences to avoid a 28-year sentence given the four-year mandatory minimum. There
    was no need for the sentencing judge to break down the global sentence because,
    as the defence conceded at the time of sentencing, all counts were identical
    and the appropriate outcome was concurrent sentences.

DISPOSITION

[7]

Accordingly, leave to appeal sentence is granted but the appeal
    is dismissed.

Doherty J.A.

E.E. Gillese J.A.

Grant Huscroft J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: Public
    Guardian and Trustee v. Zammit, 2021 ONCA 648

DATE: 20210921

DOCKET: M52761 (C69730)

Lauwers J.A. (Motion
    Judge)

BETWEEN

The Public Guardian
    and Trustee

Applicant

(Respondent/Responding
    Party)

and

Mary Zammit and
    Patricia Zammit

Respondents

(Appellants/Moving Parties)

Patricia Zammit, acting in person

Matthew Tubie, for the moving party Mary Zammit

Philippa Geddie, for the responding party

Heard: September 7, 2021 by video conference

REASONS FOR DECISION

[1]

The moving party Mary Zammit seeks a stay of the order of
    Dietrich J. dated July 20, 2021 in which she declared that Mary Zammit is
    incapable of making decisions respecting her property, ordering the termination
    of the power of attorney in favour of her daughter Patricia Zammit, and
    appointing the Public Guardian and Trustee (PGT) as the guardian of Mary
    Zammits property.

[2]

The parties agree that the governing precedent is the Supreme Courts
    decision in
RJR-MacDonald Inc. v. Canada (Attorney General)
,

[1994]
    1 S.C.R. 311. The elements of the test are that there is a serious issue
    to be tried, the applicant will suffer irreparable harm if the relief is not
    granted, and the balance of convenience favours the granting of relief.

[3]

This court has put a gloss on the application of the test in
RJR-MacDonald
where a stay is sought pending appeal. In
Ogden Entertainment Services v.
    United Steelworkers of America, Local 440
(1998), 38 O.R. (3d) 448, [1998]
    O.J. No. 1824 (C.A.) Robins J.A. said, at para. 5:

In determining whether a stay should be granted, regard must be
    had to the judgment under appeal and a strong case in favour of a stay must be
    made out. The court must proceed on the assumption that the judgment is correct
    and that the relief ordered was properly granted. The court is not engaged in a
    determination of the merits of the appeal on a stay application.

[4]

In this case, there were three prior judicial processes leading to the
    order under appeal. The first was the order of Koehnen J. on February 23, 2021
    directing a capacity assessment of Mary Zammit on the application of the PGT.
    The certified capacity assessor met with Mary Zammit twice and gave the opinion
    that she lacked capacity to manage her property due to an underlying cognitive
    impairment. Further, during the first meeting, Mary Zammit had no memory of having
    made the power of attorney in favour of her daughter Patricia Zammit, although
    she recalled the power of attorney in the second meeting. Based in part on the
    capacity assessment, the motion judge made an interim appointment of the PGT
    for guardianship of Mary Zammit on June 30, 2021. In the decision under appeal,
    the motion judge made the appointment permanent.

[5]

The core of the motion judges decision is set out in paras. 22-23:

Based on the evidence, Patricia continued to use Ms. Zammit's
    funds for her own benefit and the benefit of her children after she was appointed
    as Ms. Zammit's attorney for property. This conduct is contrary to Patricia's
    fiduciary duty to exercise her powers and duties diligently, with honesty and
    integrity and in good faith, for the incapable person's benefit:
SDA,
s.
    32(1) and s. 38(1). A core duty of an attorney for property is the duty to
    act exclusively for the benefit of the grantor, relinquishing the attorney's
    own self-interest.

It is apparent that Patricia has breached her fiduciary duties
    to Ms. Zammit both before and after she was appointed as Ms. Zammit's attorney for
    property. Even with the restrictions on the CIBC account, thousands of dollars
    have been withdrawn from the CIBC account following the execution of the Power
    of Attorney. Between March and June 2020, $5,592.29 was debited from Ms.
    Zammit's TD Bank chequing account, which is a joint account in the names of Ms.
    Zammit and Patricia. These debits include purchases from retailers, at least some
    of which were not likely for Ms. Zammit's benefit or exclusive benefit (e.g.,
    Apple.com, numerous fast food restaurants, LCBO, Netflix, and gas stations). In
    February 2020, Ms. Zammit paid $3,200 for a car for Patricia, and months later,
    in September 2020, Ms. Zammit paid $3,700 for a replacement car when the
    first was rendered inoperable following an accident. Between June 2020 and January
    2021, there were $13,710 in unexplained ATM withdrawals from Ms. Zammit's
    TD Bank chequing account. Patricia conceded that she, personally, had made only
    a few modest contributions to the TD Bank chequing account. Most of the
    deposits to the account came from Ms. Zammit's property.

[6]

At the first step of the
RJR-MacDonald
test  that there is a
    serious issue to be tried  the moving party states in an affidavit that the
    purchases made by her daughter Patricia Zammit were for Mary Zammits benefit
    and were in line with her intentions or with her consent. The motion judge
    found that Mary Zammits lack of capacity was fatal to the argument based on
    her consent.

[7]

Counsels second argument is that the CIBC disregarded the power of
    attorney in favour of Patricia Zammit when it made the report that resulted in
    an investigation. Mary Zammits incapacity affects the validity of the power of
    attorney.

[8]

On the issue of irreparable harm, Patricia Zammit argues that there are
    bills that must be paid, to which Mary Zammit cannot attend because she is in a
    hospital following a fall that occurred after the order was made. Counsel
    points out that there is no evidence that the PGT is attending to these day-to-day
    expenses so that it would be preferable in the circumstances for the stay to be
    granted in order to allow Patricia Zammit to resume daily care for her mother.
    It is not clear why a temporary, if any, delay in bill payments would constitute
    irreparable harm, assuming that the PGT staff are not yet fully engaged with
    Mary Zammit.

[9]

On the balance of convenience, counsel submits that if a stay is not
    granted then the PGT will take over Mary Zammits bank accounts and daily
    financial activities. This will drastically change the status quo thereby
    impacting her daily activities with her family. Again, it is not clear why the
    order protecting Mary Zammits assets would have such an effect on her daily
    activities with her family.

[10]

The
    complaints made by the moving partys counsel essentially turn on the facts. Counsel
    has not pointed to any palpable and overriding errors of fact made by the
    motion judge. The motion judges reasons are thorough and comprehensively
    address all of the issues raised by counsel in argument. The grounds of appeal
    are not frivolous, but they are not likely to be successful. As noted, the
    basis for a stay has not been established.

[11]

The
    motion is dismissed with costs reserved, as agreed, to the panel hearing the
    merits of the appeal.

P. Lauwers J.A.


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 complainants 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. Simpson-Fry, 2021 ONCA 647

DATE: 20210921

DOCKET: C63212

Doherty, Gillese and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jamie Simpson-Fry

Appellant

Chris Rudnicki and Mark C.
    Halfyard, for the appellant

Craig Harper, for the
    respondent

Heard: September 17, 2021 by
    video conference

On appeal from the sentence imposed on
    August 30, 2016, by Justice Joseph A. De Filippis of the Ontario Court of
    Justice, with reasons reported at 2016 ONCJ 532.

REASONS FOR DECISION

[1]

The appellant was designated a dangerous
    offender, on consent, following his convictions stemming from his brutal sexual
    assault of a young woman he did not know. He was 30 years old
[1]
at the time of the
    offence and extremely intoxicated. He was given an indeterminate sentence.

[2]

The appellant appeals against sentence. He
    contends that his risk in the community can be managed and asks this court to
    set aside the indeterminate sentence and impose a determinate sentence,
    followed by a 10-year supervision order with appropriate conditions.

BACKGROUND

[3]

In October of 2013, while extremely intoxicated,
    the appellant grabbed the complainant, a young woman walking home from a
    friends house. He said if she screamed, he would break her neck. He dragged
    her into a yard shielded from the street view by tall trees, forcibly confined
    her on the ground for two hours, and brutally sexually assaulted her twice.
    When they left the scene, he told the complainant he would kill her if she told
    anyone about what had happened.

[4]

The appellant was convicted of sexual assault,
    forcible confinement, and threatening death. It was his first conviction for a
    sexual offence. However, he had a long criminal record which began in April
    2000 when he was a youth. It contains more than fifty entries, including
    robbery with violence, forcible confinement, assault, assault with a weapon,
    and assault with the intent to resist arrest. There are also multiple
    convictions for acts of domestic violence, failures to attend court, and
    breaches of probation. Alcohol was related to many  but not all  of the
    offences. For example, when he was 19, he committed a home invasion robbery
    with an imitation firearm while sober. He threatened the occupants of the home,
    including a countdown, after which he threatened to shoot an 82-year-old
    grandmother. He committed this offence for drug money.

[5]

The Crown sought a dangerous offender
    designation under s. 753 of the
Criminal Code
, R.S.C. 1985, c. C-34 and
    an indeterminate sentence. The defence conceded that the appellant met the
    criteria for a dangerous offender but contended that a determinate sentence
    followed by a ten-year long-term supervision order (LTSO) could reasonably be
    expected to control his risk in the community.

[6]

Dr. Pearce prepared the court-ordered
    psychiatric assessment and Dr. Gojer prepared an assessment for the
    defence. These experts agreed on much of the information leading to their
    respective opinions. They concurred in their diagnosis: the appellant has an
    antisocial personality disorder and a poly-substance use disorder. Their risk
    assessment tools and test results were also consistent.

[7]

Dr. Pearce found the appellant was at high risk
    of violent re-offence. He considered the effect of an Antabuse prescription on
    the appellants risk. Antabuse renders a person violently ill if they drink
    alcohol. To be effective, Antabuse must be taken daily. Given the appellants
    history of non-compliance with court orders, Dr. Pearce did not believe that
    the appellant could be trusted to reliably report having taken his medication
    so conditions would have to be imposed such as urinalysis twice per week, and a
    staff member or medical professional watching to ensure the appellant actually
    swallowed the medication. In any event, however, Dr. Pearce found no reasonable
    prospect of control of the appellant on an LTSO, even if the appellant complied
    with anti-alcohol medication and counselling. He noted that the appellants
    risk could not be managed even under the strict conditions in a medium-security
    correctional facility where the appellant had previously been incarcerated and
    in which he had violently re-offended. Dr. Pearce also opined that the proposed
    conditions would not address the appellants substance abuse disorder nor his
    very severe, treatment-resistant antisocial personality disorder.

[8]

Dr. Gojer also viewed the appellant as a high
    risk of violent re-offence. He observed that the appellants history of
    compliance while on judicial release and in custody has been problematic.
    However, in his opinion, there was a reasonable possibility of eventual control
    under an LTSO with a term to take anti-alcohol medication and under significant
    supervision. In reaching his conclusion on the appellants amenability to
    treatment, he adopted the opinion of Dr. Kalia who interviewed the appellant
    and was impressed with his insight and promise to reform. Dr. Gojer also spoke
    to the appellant and believed that he now accepts he has an alcohol problem.

[9]

The appellant did not testify at the sentencing
    hearing.

[10]

In his reasons, the sentencing judge describes
    the shocking nature of the index offences and summarizes the appellants
    background and extensive criminal record. Among other things, his criminal
    record shows an abysmal record of non-compliance with court orders  the
    appellant has been placed on probation 15 times and breached those orders every
    time. The sentencing judge also thoroughly canvassed the expert evidence and
    the evidence on management of LTSO by Correctional Service of Canada. Further,
    he accepted Dr. Pearces expert opinion that the proposed anti-alcohol
    treatment plan could not manage the appellants risk because it did not address
    the appellants dependence on other drugs or his antisocial personality
    disorder.

[11]

At para. 71 of his reasons, the sentencing judge
    considered the appellants stated promises to seek professional help and abide
    by the terms of any release plan, including taking medication to deal with his
    alcohol dependence. He then made the following statement which is central to this
    appeal (the Impugned Statement):

I note that [the appellant] made these
    promises indirectly, to the doctors, without subjecting himself to
    cross-examination. This, in itself, does not mean I refuse to trust him;
    however, it does point to the additional significance of the evidence about the
    [appellants] background, the expert opinions about his prognosis, and the
    feasibility of managing his risk in the community.

[12]

The sentencing judge declared the appellant a
    dangerous offender and sentenced him to an indeterminate custodial term. At
    para. 92 of his reasons, he concluded he was not satisfied there was a
    reasonable expectation that a fixed sentence, with or without an LTSO, would
    adequately protect the public against the appellants commission of a serious
    personal injury offence. He explained that in reaching this conclusion, he
    considered the appellants past performance as a predictor of future behaviour,
    his abysmal record of non-compliance, the expert opinions, the voluntary nature
    of treatment inside the penitentiary and in the community, the limitations
    inherent in a LTSO, the absence of treatment for all aspects of the
    poly-substance use disorder, and the substantial difficulty in addressing the
    appellants antisocial personality disorder.

THE ISSUE

[13]

The issue on appeal flows from the Impugned
    Statement in para. 71 of the sentencing judges reasons. In his factum, the
    appellant says the issue is whether the sentencing judge violated his s. 7
Charter
right to silence by, in effect, refusing to trust him because he declined
    to testify on his sentencing. In his oral submissions, the appellant says the
    Impugned Statement raises the question whether, in a dangerous offender
    hearing, the accused must testify before their statements to a psychiatric
    expert can be relied on for the truth of their contents.

ANALYSIS

[14]

We do not view the Impugned Statement as raising
    either of the issues articulated by the appellant. The sentencing judge did not
    rule the statements inadmissible or draw an adverse inference against the
    appellant because he did not testify. Nor did the sentencing judge refuse to
    accept the truth of the appellants statements. Rather, as the sentencing judge
    explained in the Impugned Statement itself, he considered those statements in
    light of the entire evidentiary record and, in part because the appellant had
    not been cross-examined on his statements, afforded them less weight than other
    pieces of evidence when determining the feasibility of managing the appellants
    risk to the community.

[15]

The sentencing judge made no error in his
    treatment of the appellants statements. There is no basis for this court to
    interfere with the sentence imposed.

DISPOSITION

[16]

Accordingly, the appeal is dismissed.

Doherty J.A.

E.E. Gillese
    J.A.

Grant Huscroft
    J.A.

[1]

In some of the documents, the appellant is said to have been
    29 years old at the time of these offences. However, this appears incorrect as
    his date of birth is September 29, 1983, and the offences took place in October
    2013.


COURT OF APPEAL FOR ONTARIO

CITATION: Markham (City) v. AIG Insurance Company of Canada,
    2021 ONCA 649

DATE: 20210921

DOCKET: M52381 (C67455)

Doherty, Brown and Thorburn JJ.A.

BETWEEN

The Corporation of the City of Markham

Applicant (Respondent in Appeal)

and

AIG Insurance Company of
    Canada

Respondent (Main Application/Appellant)

BETWEEN

AIG Insurance Company of
    Canada

Applicant (Appellant)

and

Lloyds Underwriters and
    The Corporation of the City of Markham

Respondents (Counter-Application/Respondents in Appeal)

David G. Boghosian and Shaneka Shaw Taylor, for the
    Corporation of the City of Markham and Lloyds Underwriters

Marcus B. Snowden and Sébastien A. Kamayah, for AIG
    Insurance Company of Canada

Heard: In writing

ENDORSEMENT

[1]

The court released a costs endorsement on the latest motion in this
    matter on July 27, 2021. The court indicated that the moving party (respondents
    in appeal) had not filed any written submissions on costs. It turns out counsel
    for the moving party did file costs submissions, although those submissions
    were filed after the deadline and were not forwarded to the panel. Counsel for
    the moving party has asked us to reconsider our costs disposition in light of
    those submissions. We have.

[2]

We see no reason to vary our costs order made on July 27, 2021. The
    order stands.

Doherty J.A.

David Brown J.A.

J.A. Thorburn J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Coore, 2021 ONCA 645

DATE: 20210922

DOCKET: C68384

Doherty, Gillese and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Oral Coore

Appellant

Andrew Furgiuele, for the appellant

Geoffrey Roy, for the respondent

Heard: In writing

On appeal from the conviction entered by
    Justice ODonnell of the Ontario Court of Justice, dated October 3, 2018.

REASONS FOR DECISION

[1]

The Crown concedes the appeal must be allowed.

[2]

The appellant pled guilty to possession of a
    narcotic for the purposes of trafficking. Unfortunately, trial counsel (not Mr.
    Furgiuele) unintentionally misled the appellant as to the immigration
    consequences of his guilty plea. Those consequences were of central importance
    to the appellant. The guilty plea cannot stand and must be set aside.

[3]

The appeal is allowed, the guilty plea is set
    aside, the conviction is quashed, and a new trial is ordered.

Doherty J.A.

E.E. Gillese J.A.

Grant Huscroft J.A.


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 complainants 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. Safieh, 2021 ONCA 643

DATE: 20210922

DOCKET: C65769

Doherty, Gillese and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Applicant (Appellant)

and

Boutros Safieh

Respondent

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 4468.

[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 judges declaration of invalidity.

A Preliminary Point

[6]

The Crowns 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 Crowns 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 Crowns 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 Crowns intention to challenge the trial judges 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 judges 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 offenders 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 judges 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 courts 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 judges 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 judges analysis.

[20]

We agree with the trial judges 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.


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 complainants 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. Safieh, 2021 ONCA 644

DATE: 20210922

DOCKET: C66003

Doherty, Gillese and Huscroft
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Boutros Safieh

Appellant

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
    Crowns 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 appellants 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 appellants 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 appellants submissions offer no basis upon
    which this court can interfere with the trial judges 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 appellants evidence. The trial judge considered the appellants
    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 appellants evidence, having regard to the trial judges
    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 appellants 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.