Case Name:
R. v. [REDACTED]
Between
Her Majesty the Queen, Respondent, and
[REDACTED], Applicant
[2015] O.J. No. [REDACTED]
2015 ONCJ [REDACTED]
341 C.R.R. (2d) [REDACTED]
Brampton Court File No.: [REDACTED]
Ontario Court of Justice
[REDACTED]
Heard: June 3, 2015.
Judgment: August 5, 2015.
Released: September 8, 2015.
(102 paras.)
Counsel:
[REDACTED], for the Crown.
[REDACTED], for the accused.
Reasons for Charter Ruling and Sentence
[REDACTED]:--
Introduction and Histon/ of the Proceedings
1 On May 23,2013 the applicant was arrested and charged with one count of luring a child by means of a computer contrary to section 172.1(1)(b) of the Criminal Code of Canada. The text of the entire section reads as follows:
172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with
* (a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence under subsection 153(1),section 155, 163.1, 170 or 171 or subsection 212( 1), (2), (2.1) or (4) with respect to that person;
* (b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or
* (c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.
* Punishment
(2) Every person who commits an offence under subsection (1)
* (a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of one year; or
* (b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.
* Presumption re age
(3) Evidence that the person referred to in paragraph (1) (a), (b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.
* No defence
(4) It is not a defence to a charge under paragraph (1) (a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.
2 By way of pre-trial application the Applicant challenged the constitutionality of subsections (3) [rebuttable presumption that interlocutor is underage established by a representation] and (4) [belief that interlocutor is not underage is not a defence in the absence of reasonable steps to ascertain age].
3 The constitutional challenge was partially successful. In written reasons dated December 10, 2014 I ruled that the presumption created by subsection (3) was not constitutionally sustainable and therefore could not be relied upon by the Crown m this prosecution. In the same reasons I found that the reasonable steps provision found in subsection (4) was constitutionally tolerable.
4 The evidence on the trial was heard over the course of 4 days in December of 2014.
5 The nature and content of the internet communications between the applicant and an adult police officer who was posing as a 14 year old female were clearly, if the Applicant believed his interlocutor was under 16, for the purpose of facilitating one or more of the sexual offences referenced in section 172.1(1)(b) of the Code - most particularly invitation to sexual touching.
6 The applicant testified. He asserted that he believed throughout that he was communicating with an adult posing as a child and that the communication was consistent with a recognized and popular subspecies of adult sexualized chat known, inter alia, as "Daddy /Little Girl". He testified that he believed the specific representations of age made by the interlocutor to be an adult staying in character and maintaining the "little girl" role.
7 As a result of the ruling on the constitutionality of subsection (3) the Crown did not have the benefit of the presumption arising from the repeated representations made in the course of the internet communication that the interlocutor was 14.
8 While I found that the evidence was sufficient to establish that the Applicant was indifferent concerning the age of his interlocutor I also found that his evidence, including the context in which the impugned communications occurred, was sufficient to inspire a reasonable doubt about whether the Applicant subjectively believed he was in fact communicating with someone who was under the age of 16.
9 In accord with the reasonable steps analysis mandated by subsection (4) of section 172.1 I conducted an analysis of whether the Crown had established beyond a reasonable doubt that the Applicant's subjective belief was objectively sustainable.
10 In the final analysis I was satisfied beyond a reasonable doubt that the evidence showed that the Applicant had not taken any reasonable steps to ascertain the age of the communicant nor any reasonable steps to address the issue raised by the repeated representations of underage status made by the interlocutor. A conviction under section 172.1(1)(b) therefore ensued.
11 Where the Crown proceeds, as it did in this case, by indictment, section 172.1(2) provides for a sentence of up to 10 years imprisonment and a mandatory minimum sentence of one year of imprisonment.
12 Following the release of the reasons for conviction the Applicant sought to renew the attack on the constitutionality of the "reasonable steps" requirement found in subsection (4) and the Applicant also brought an application for a Charter based finding that the mandatory minimum sentence of one year should be of no force and effect. Those applications were heard on June 3, 2015. On August 5, 2015 I released to the parties the initial draft of these reasons. The case was adjourned to September 8 to permit counsel to further address the issue of sentencing.
13 These are the reasons in relation to the two applications.
Renewed Charter Attack on Subsection 172.1(4) based on sections 7 and 11(d)
14 The Applicant asks the Court to revisit the issue of the constitutional validity of the application of subsection (4) to the inchoate "belief" offence.
Applicant's Argument on the Constitutionality of Subsection (4) of Section 172.1
15 The Applicant argues that the Court can and should re-open the inquiry into the constitutionality of subsection (4) because: (a) the original application was an intertwined application challenging the joint operation of both subsection (3) and (4) and the discrete question of constitutional validity of subsection (4) standing and operating on its own was not addressed; (b) the constitutional implications of the elimination of the operation of subsection (3) and the operation of subsection (4) standing alone did not crystallize until the reasons for conviction were delivered; (c) in the alternative the Applicant should be granted leave to re-open the constitutional challenge on the ground that there is reason to believe that the law was misconstrued in a manner that will produce an unjust result.
16 The Applicant submits that the path by which the Applicant was convicted in this case demonstrates and highlights the constitutional infirmity of applying a reasonable steps analysis in a context in which: (a) the actual interlocutor is not underage and the conviction is therefore based solely on the belief of the accused; and, (b) the Crown has failed to establish beyond a reasonable doubt that the accused believed that his interlocutor was underage.
17 Where the interlocutor is actually under the prescribed age but the accused asserts that he believed otherwise the application of the reasonable steps provision operates without constitutional difficulty. The Crown has, in that scenario, established all elements of the offence - communication by computer; with an underage person; for the facilitation of a sexual offence. The reasonable steps provision is then properly used to "foreclose exculpatory claims of ignorance or mistake that are entirely devoid of an objective evidentiary basis."1
18 Where the interlocutor is actually above the prescribed age - as will be the case in all sting operations - and the Crown does not prove that the impugned "belief" was present, there is no claim of ignorance or mistake to which the taking of reasonable steps can be applied.
19 The Applicant points to an analogy with the reasonable steps provision relating to honest but mistaken belief in consent in the sexual offence context. In that scenario the Crown must first prove that there was no consent. If the Crown fails to prove that the complainant was not consenting the question of whether the accused belief in consent was reasonably sustainable does not arise. It is only after the Crown has proved an absence of consent that the issue of whether the accused held an honest but mistaken belief in consent is assessed on the basis of whether it is reasonably sustainable.
20 Using that analogy the Applicant submits that unless the Crown first proves that the accused held a belief that his communicant is underage subsection (4) has no function.
21 Put another way, the Applicant's argument is that where the operation of the presumption contained in subsection (3) is eliminated on constitutional grounds in the prosecution of a pure belief offence - actual interlocutor is of legal age - the interplay described by the Supreme Court of Canada in Levigne between subsection (3) and subsection (4) in the assessment of the "evidence to the contrary" relied upon by the accused to rebut the presumption2 does not occur and thereafter subsection (4) has no function in the pure belief context.
22 The Applicant submits this is so because if the Crown proves that the accused believed the interlocutor was underage the question of whether he or she took reasonable steps to ascertain otherwise is irrelevant. On the other hand if the Crown fails to prove that the accused held the requisite belief - as was the case here - the element of mistaken belief is absent and there is nothing left for the Court to assess against a reasonableness standard.
Crown Position
23 The Crown urges the Court to summarily dismiss the renewed constitutional attack on subsection (4) on the basis that the renewed application is nothing more than a re-argument of the original application.
Analysis
24 I accept the argument advanced by the Applicant that the precise reasoning through which the Court reached a finding of guilt highlighted the availability of arguments that were not advanced in the course of the original application and with that in mind and the notion that innocence is potentially at stake I have determined that the Applicant will be permitted to re-open the Charter challenge to subsection (4) of section 152.1.
25 The outcome of this portion of the Application depends to a large extent on how my earlier decision is understood and how the impugned provision is interpreted.
26 To be clear, I did not find that the Applicant in fact believed he was dealing with someone of legal age. Rather, I concluded that the Crown had failed to prove beyond a reasonable doubt that he believed he was dealing with someone underage. Therefore it is incorrect to characterize the conviction as a holding that the Applicant was guilty of negligently holding a correct belief.
27 Further, I also found that he was indifferent to whether he was dealing with someone who was under age or of legal age. As he said in his police statement, he did not know "whether she was or not so". Nor, in the course of the many computer interactions, did he ever appear to care much one way or the other.
28 The jurisprudence cautions against the attempt to define with precision what elements may constitute the actus reus or the mens rea and instead to "adopt language which accurately conveys the effect of the law without in itself imposing an unnecessary burden of translation and explanation."3
29 The evil that Parliament sought to address with this section is the risk that vulnerable children would become the target of unrestrained and largely anonymous sexualized online communications with the pernicious goal of facilitating the commission of one of the enumerated sexual offences against them. Those who prey on children for their own sexual gratification find easy and ready access to their targets on the internet. The impugned provision (subsection (4)) aims to reduce the risk of children being victimized in this way by foreclosing exculpatory claims of ignorance or mistake that are entirely devoid of an objective evidentiary basis.
30 Notwithstanding the elimination of the presumption contained in subsection (3) the question raised by subsection (4) that must be addressed once the interlocutor presents as underage is whether the assertion by the accused that he believed he was dealing with someone above the prescribed age is reasonably held.
31 To the extent that the wording of the section needs to be understood in terms of a distinction between actus reus and mens rea I agree with the submission of the Crown that the actus reus crystallizes at the moment that there is a sexualized communication that facilitates one of the enumerated offences and the communicant (interlocutor) presents as underage. The mens rea is complete when the accused either forms the belief that the communicant is underage or continues the communication without taking reasonable steps to ensure that he is not in fact communicating with a person who is underage. In my view, construed in this way, section 172.1(4) is constitutional.
32 The imposition of criminal liability for the failure to take reasonable steps in circumstances where the accused has entered into a sexualized conversation by computer with an interlocutor whose age is unknown to him and not otherwise represented or confirmed to be above the prescribed minimum is a logical measure justified by the nature and context of internet communication and the social harm being addressed.
33 Where, as here, the conversation is continued in the face of clear assertions by the interlocutor that she is under the minimum age the argument that Parliament can impose criminal responsibility for the failure to exercise reasonable care in filtering the targets of sexual communication in a constitutionally palatable manner is clearer still.
34 While the inferential connection between an internet representation of age and a corresponding belief on the part of the recipient of the representation is not inexorable and therefore not sufficient to sustain the statutory presumption, where such representations exist and no steps are taken to reasonably assess the accuracy of the representation the justification to impose a statutory requirement to take reasonable care is obvious.
35 In this instance, although it was not ultimately proven that the Applicant had an affirmative belief he was dealing with a child I was satisfied beyond a reasonable doubt that taking account of all of the circumstances he should have been concerned that his interlocutor was a child and taken reasonable steps to ensure that was not the case. In my view, presented with the information he had, his failure to take such steps was culpable within the meaning of the section.
36 In these circumstances I am not persuaded that subsection (4) has been applied in a manner that is constitutionally objectionable or that the Applicant has been convicted in a manner that offends either section 7 or section 11(d) of the Charter.
Challenge to the imposition of a One Year Mandatory Minimum Sentence based on breach of Section 12 of the Charter
The Analytical Framework
37 Claims for relief under section 12 of the Charter may be based on the nature of the punishment, the conditions in which the punishment is served, the duration of the punishment, or some combination of those factors.4
38 Section 12 may be invoked in connection with "a claim that a statutorily imposed sentence is so harsh an infringement on liberty that it is inconsistent with the principles of fundamental justice."5 This engages the prohibition against cruel and unusual punishment.
39 The phrase "cruel and unusual punishment" is a "compendious expression of a norm to describe a punishment that is so beyond what would be proper or proportionate punishment as to be grossly disproportionate.6
40 Gross disproportionality means more than simply "excessive". It must rise to the level of outraging the standards of decency and so disproportionate that ordinary Canadians would find it abhorrent and intolerable.7
41 There are two potential stages to the inquiry.
42 In the first stage the Court considers what, in all the circumstances of the offence and the offender, would be the appropriate sentence in the absence of a mandatory minimum and then compares that sentence to the mandatory minimum and determines whether the mandatory minimum is grossly disproportionate for the offence committed and the offender who committed it.8
43 If the Court finds that the mandatory minimum is grossly disproportionate to a fit sentence determined without regard to the mandatory minimum then the Court must go on to consider whether the application of the mandatory minimum sentence would "outrage standards of decency" such that Canadians would "find the punishment abhorrent or intolerable".9
44 If the Court finds gross disproportionality and an impact so excessive as to outrage standards of decency in relation to the offence and offender before the Court then the breach of section 12 is established and the analysis can end.
45 If the first branch of the inquiry does not yield a conclusion that section 12 has been breached the Court must next consider whether the mandatory minimum constitutes cruel and unusual punishment viewed through the lens of a reasonable hypothetical set of circumstances that might arise that engages the mandatory minimum.10 The reasonable hypothetical posed should be grounded in common sense and experience and exclude far-fetched examples.11
46 The Nur decision suggests that a number of factors may inform the gross disproportionality analysis, both as it applies to the particular accused and to reasonable hypotheticals. The factors identified in the case law are:
(a) gravity of the offence;
(b) personal characteristics of the offender;
(c) particular circumstances of the case;
(d) actual effect of the punishment on the individual;
(e) penological goals and sentencing principles reflected in the mandatory minimum;
(f) the existence of valid effective alternatives to the mandatory minimum sentence;
(g) comparison of punishments imposed for other similar crimes.
47 This Court has no power to make a declaratory order. However, in the event of a finding of a breach of section 12 of the Charter pursuant to the foregoing analysis this court may, pursuant to section 52 of the Charter, find that the mandatory minimum sentence is of no force and effect in relation to this prosecution.12
The Offence and the Offender
48 The Applicant was convicted of one count of child luring by means of computer contrary to section 172.1(1)(b). The section has included mandatory minimum sentences of imprisonment for both summary and indictable elections since the omnibus crime bill entitled "Safe Streets and Communities Act" came into force in August 2012.
49 The Applicant, [REDACTED], was born on [REDACTED]. He has no prior criminal record. He has been involved in a common law relationship with [REDACTED] since 2000. [REDACTED] and his spouse reside in Belleville. He is a step father and step grandfather to the offspring of [REDACTED].
50 At the time of his arrest [REDACTED] was employed as a groundskeeper at a golf course in the Belleville area. The work was seasonal. He was regularly laid off from work from November to April. His spouse has a regular full time job with [REDACTED].
51 [REDACTED] first ventured into the realm of internet use in 2008 or 2009. It was a way to fill the time when he was laid off during the winter months. Over a period of a few years his interests and activities on the internet migrated from ordinary to more esoteric pursuits. This eventually included occasional viewing of adult pornography on free sites such as "Pornhub". It also included participation in sexualized conversations in designated "chat rooms". The sexualized conversations started in 2012.
52 At some point in late 2012 [REDACTED] decided that the sexualized conversations in chat rooms were no longer satisfying in the sense that he was beginning to find them boring.
53 He decided to seek out an individualized exchange. He did so by posting an ad on Craigslist. The ad was posted on January 10, 2013.
54 The heading for the ad was as follows: Daddy looking for his little girl -- m4w - 45 (Brampton);
55 The text of the ad read as follows: Daddy looking for his little girl to meet and have some fun with him during the day next week on Tue. and Wed of this week have the place all to ourselfs too, in the Brampton and Knightsbridge area;
56 The ad attracted the attention of Peel Regional Constable [REDACTED]. [REDACTED] is aware that there is a subset of adult role playing known by various names including "Daddy/Little Girl". This ad was of interest to [REDACTED] because the text was suggesting an actual meeting with a "little girl" without at the same time containing textual limiters such as 18+ or "legal age".
57 On February 5, 2013 [REDACTED], posing as a girl named [REDACTED], responded to the ad through an email address that included her name and a veiled reference to a birth year of 1998.
58 In her initial response to the ad [REDACTED] posing as [REDACTED] asserts that she is 14 years old. She repeats that assertion of age in several internet conversations thereafter.
59 The content of the communications between [REDACTED] and [REDACTED] ([REDACTED]) is overtly sexual. In it [REDACTED] encourages [REDACTED] to touch herself in a sexual way, to engage in masturbation, to use objects to enhance masturbation, to tell him about her sexual experiences, to experiment with sex with others and to learn about sex through on line pornography.
60 The computerized communications between [REDACTED] and [REDACTED] ([REDACTED]) continued on a sporadic basis from the initial exchange on February 6 through to April 21. [REDACTED] does not initiate contact after April 26 when there is a missed telephone call. When [REDACTED] attempts to revive the conversation on May 10 [REDACTED]'s reply is "Who are you?"
61 [REDACTED] was arrested on May 23, 2013. He provided a statement to the police on the same day that he was arrested. In his statement to the police he makes no mention of adult role playing or fantasy. He gives no indication that he believed he was speaking with an adult posing as a child. At that point he was not aware that [REDACTED] was in fact [REDACTED].
62 At one point in the communications [REDACTED] suggests a face to face meeting with [REDACTED]. He suggests that she skip school to do this. He testified that he had no intention to carry through with a face to face meeting. He does not provide a believable explanation for why he would suggest a meeting he did not intend to attend. On the other hand what he does provide is an accurate description of his physical features, a partially accurate description of a vehicle he owned at the time, and he suggests a location for the meeting that he is familiar with. For sentencing purposes I find, consistent with the content of the communication, that [REDACTED] had an intention to meet and that intention would have been realized if [REDACTED] had expressed a greater degree of receptiveness to the idea.
63 Paragraphs 23 of the reasons for conviction outline the reasons that I was not able to affirmatively credit his assertion that he believed at all times that he was dealing with an adult posing as a child.
64 Paragraphs 29 through 36 of the reasons for conviction set out the reasons for finding that no reasonable steps were taken by [REDACTED] to ascertain the age of the interlocutor.
65 The computer used by the Applicant to conduct the communication with [REDACTED] was seized by the police. It is clear from the evidence of [REDACTED] that the computer was subjected to a forensic search. There is no indication that the forensic search yielded evidence of any other offence.
Stage One Analysis: Is the Mandatory Minimum grossly disproportionate in relation to this offender and this offence
66 The principle of proportionality insists that the sentence must reflect the seriousness of the offence, the degree of culpability of the offender and the harm occasioned by the offence.13
67 There can be no doubt that section 172.1 addresses a very real and serious social harm. It was enacted to protect children from the risk of sexual exploitation posed within the unique context of internet communications. As Justice Watt observes in R. v. El-Jamel14: "The exploitive reserve of the internet is almost limitless, the anonymity it affords a magic elixir to reduce the inhibitions and exploit the curiosity, immaturity or sexual precocity of young persons."
68 In Alicandro our Court of Appeal observes: "the internet is a medium in which adults can engage in anonymous, low visibility and repeated contact with potentially vulnerable children."15
69 The section creates a preparatory crime. The conduct criminalized precedes the commission of the sexual offences to which it refers. The legislative object is prophylactic in nature.16
70 The net cast by the section is circumscribed to some extent by its wording. The ambit of the section is confined to computerized communications, those communications must have the purpose of facilitating a limited number of identified sexual offences, and the communication must be with someone who is actually underage or the accused actually believes is underage or, as I have interpreted and applied the section, in respect of whom the accused is unreasonably indifferent to whether the recipient is underage or not.
71 The degree of culpability will vary depending on the content of the communication, the length of time over which the communication is conducted, the degree to which the communication advances along the continuum of preparation toward actual commission of the enumerated offence, the nature of the enumerated offence being facilitated and whether the subject communication was abandoned prior to, or interrupted as a result of, arrest. All of these factors have an influence on the degree of harm or potential harm. There is broad variability in many of these factors: length of time of communication for instance can vary from mere minutes to hours or days or months; the nature of the computerized communication can be anonymous and strictly verbal or it may be direct, live and visual; and the degree of preparation can vary from invitation only to a consummated encounter. There is a broad continuum in the degree of culpability.
72 Moral culpability within this offence is likewise assessable over a broad spectrum. I accept the proposition advanced by the Applicant that the offender who is found to be unreasonably indifferent to the age of the interlocutor is less culpable than the offender who enters into the communications with an interlocutor he knows or actively hopes is underage. The latter enters the dialogue seeking to facilitate a sexual offence with a child whereas the former is guilty of continuing the dialogue without taking reasonable steps to ensure that he is not facilitating a sexual offence with a child. The potential harm is the same if the interaction does not progress beyond computerized dialogue.
73 The content of the communication between [REDACTED] and [REDACTED] is verbally graphic and explicitly sexual. It takes place on a sporadic basis, generally for a period of minutes in a session but the sessions persist over a period of months.
74 The specific offence facilitated is invitation to sexual touching. That facilitation occurs in the course of the first two communications at which point the preparation phase is virtually complete.
75 Given the brevity of the dialogue relating to a proposed face to face meeting it is difficult to assess the impact of that circumstance. There is no indication of what, if any, sexual offence might have been facilitated by such a meeting. The fact that a meeting was suggested by [REDACTED] is an aggravating feature that has limited weight.
76 The fact that the communications were terminated by [REDACTED] before he was aware that he was communicating with a police officer is a mitigating feature.
77 Since this was a sting operation there is no evidence of actual harm. That will be the case in all sting operations. That does not end the inquiry. [REDACTED] did not know that he was dealing with a police officer and he did not know, and had no reasonable basis for believing, that he was not dealing with a child. The potential harm to a 14 year old female derived from engaging in this form of dialogue with an adult male is difficult to assess in the absence of expert testimony. I accept the proposition advanced by the Crown that the dialogue had the potential to disrupt and distort emotional equilibrium and the sexual maturation processes of a 14 year old female.
78 The Applicant is a person of previously unblemished character. He has no criminal antecedents. He has been a productive member of society. The forensic search of his computer did not result in the prosecution of any additional charges.
79 The Applicant does not suffer from any mental disability. He does not suffer from depression. Unlike the offender in El-Jamel he is not a victim of sexual abuse. He is old enough to appreciate the need to take reasonable care to ensure that sexually explicit communications are not conducted with someone who might be underage.
80 The case law is clear that the predominant sentencing principles applicable to the child luring offence are general and specific deterrence, denunciation and the need to separate offenders from society.
81 Appellate jurisprudence predating the enactment of the mandatory minimum sentences suggested an ordinary range of 12 to 24 month and contemplation of non-custodial dispositions only in the rarest of cases.17 At the same time the jurisprudence recognized that there was a place for non-custodial dispositions where the circumstances warranted such a disposition.
82 It is a further complicating feature of those decisions that the circumstances almost always included other factors such as a record, or possession of child pornography or other child sexual offences, none of which are present here.18
83 In R. v. Jarvis the Court of Appeal upheld a 6 month sentence for a first offender who had entered into an online dialogue with a police officer posing as a 13 year old. The dialogue continued over a period of 14 days. It is a distinguishing feature from this case that the dialogue included provision by the offender to the interlocutor of photos of his penis and adult pornography. It is a further distinguishing feature that the interaction concluded with a meeting both arranged and attended by the offender.19 Liability in that case was established by way of a finding of an affirmative belief. In common with this case the offender's computer was searched and no child pornography was located nor was there any indication of similar communication with other children.
84 There can be no doubt that the actual effect of a mandatory minimum sentence of one year on [REDACTED] will be harsh. He is in his late sixties. He has no prior criminal involvement. He stands convicted of an offence that on the surface involves sexual impropriety with a child. This latter circumstance is likely to render him a target within the prison environment.
85 It is not suggested that a sentence of imprisonment of one year will serve any rehabilitative purpose. While I do not have the benefit of expert evidence in relation to the risk to re-offend there is little indication that rehabilitation is required. The forensic review of his computer did not disclose any other indication of criminal behaviour. He has been compliant with the conditions of his bail since his release. He has not re-offended. My impression of [REDACTED] is that he is sufficiently chastened by the experience of arrest, pre-trial custody of 5 days and prosecution that he is unlikely to re-offend.
86 The Safe Streets and Communities Act provides mandatory minimum sentences of imprisonment for virtually all sexual offences involving victims who are under the age of 16. The standard minimum for most of these when the Crown proceeds by summary conviction is 90 days. The provisions where prosecuted by indictment call for minimum sentences that vary in length from 90 days to one year - access child pornography is 6 months; parent procuring sexual activity for child under 16 is one year and 6 months if 16 to 18; householder permitting sexual activity is 6 months if victim is under 16 and 90 days if 16 to 18; providing sexually explicit material to a child is 90 day; making arrangements by computer to commit a sexual offence against a child is 1 year.
87 Parliament is making it clear through these provisions that when it comes to sentencing sexual offences involving victims under the age of 18 a sentence of imprisonment will always form a part of the disposition.
88 That said, in terms of a comparison of the culpability of [REDACTED] in this case and the potential harm if [REDACTED] were a real as opposed to fictional 14 year old, [REDACTED]'s offence is reasonably comparable to the offence of providing sexually explicit material to a child where Parliament saw fit to impose a mandatory minimum sentence of 90 days where the offence is prosecuted by indictment.
Stage One Conclusion
89 If there were no mandatory minimum sentence in place I would still sentence the Applicant to a period of imprisonment. Having regard to the circumstances of the offence and applying the principle of proportionality I would impose a sentence of 4 months followed by probation and in conjunction with the usual mandatory orders requested by the Crown. This is a sentence that in my view would adequately address the predominant principles of general deterrence and denunciation. The conclusion that I reach in this regard mirrors to some extent the approach adopted by Provincial Judge Gordon of Saskatchewan who dealt with a similar fact situation in R v MGP20 - albeit in a context where the Crown had initially elected to proceed by indictment but later agreed with the consent of the accused to proceed summarily.
90 It follows that I conclude that a sentence of one year is significantly disproportionate to the offence and offender. The question of whether it is grossly disproportionate is more difficult to assess. Although the analysis should not be reduced to a mere mathematical formula it is of some significance that the minimum sentence is 3 times the amount I assess as a proper and proportionate sentence.
91 [REDACTED] is an older man who was bored and made the poor choice of seeking to relieve that boredom with sexual chat on the internet. He compounded his error by posting an ad which was at best ambiguous about the age of the correspondents he hoped to attract and then fell into criminally culpable error when, alerted to the possibility that he could be dealing with a child, he continued the dialogue without taking reasonable steps to ascertain whether his correspondent was underage or not. In other words he negligently continued a conversation that he should have terminated.
92 The Crown could have elected to proceed by summary conviction in which case the minimum sentence would have been 90 days and the issue of proportionality would not arise. The Crown elected to proceed by indictment and that changed the landscape.
93 Parliament has decreed in section 172.1(2) a mandatory minimum of one year where the Crown elects to proceed by indictment. That minimum sentence applies to a crime, as we have seen in this fact situation, which can be committed by unreasonable indifference or negligence. It applies whether there is a single dialogue lasting minutes or an extended dialogue occurring over months or years. The offence references the facilitation of a number of distinct offences that vary in seriousness. There is no distinction between the facilitation of the most and least serious of these offences that can be accommodated below one year.
94 Here the Crown has not proven that the Applicant entered into the internet communication with a subjective intent to prey on children.
95 The communication did not include the type visually explicit (photographs or webcam) exchange that is referenced in other cases.21
96 While the dialogue continued sporadically over a period of months there was only one half-hearted attempt to escalate the offence to a face to face encounter and the applicant eventually terminated the discussion voluntarily before there was any indication that the police were in any way involved.
97 Serving a sentence of imprisonment of one year would be a harshly disproportionate consequence for a man of [REDACTED]'s age and previous good character.
98 In all the circumstances I am satisfied that a sentence of one year is grossly disproportionate to the circumstances under which this offence was committed and the degree of culpability of this offender and grossly disproportionate to personal circumstances of this offender.
99 Totality, restraint and disparity are all principles of sentencing that are recognized in both the Criminal Code and in the jurisprudence. There is however only one principle that is described in the sentencing provisions of the Code as "Fundamental". That principle is proportionality.22 A mandatory minimum sentence of one year applied to this offence and this accused renders adherence to, and application of, the fundamental principle of proportionality impossible.
100 I am satisfied that ordinary Canadians would find that the elimination of the operation of the prime fundamental principle of sentencing to this offender on these facts to be cruel and unusual and therefore abhorrent, intolerable and so manifestly unfair as to constitute an affront to ordinary standards of decency.
Stage One Conclusion
101 The mandatory minimum sentence of one year is of no force and effect in relation to this prosecution.
Stage Two
102 The reasonable hypotheticals cited by the Applicant in paragraphs 101 and 103, as well as the reasonable hypothetical developed by Justice Griffin R v SS23 would yield the same result on the basis of the same reasoning but with greater or more obvious force. In light of the conclusion reached on stage one it is not necessary to enter into that analysis.
[REDACTED]
1 R. v. Levigne 2010 SCC 25 (CanLii) para. 31
2 Levigne, op.cit. para 32
3 Levigne, op.cit.para 33 and 35
4 R v Nur 2013 ONCA 677, para, 60
5 Nur, ibid, para. 63
6 R v Miller [1977] 2 SCR 680 pp. 689-90; Nur, ibid, para 64
7 R v Smith [1987] 1 SCR 1045 at p. 1072
8 Nur, ibid, para. 75
9 Nur, ibid, para. 65-66
10 R. v. Goltz [1991] 3 SCR 485 at pp. 505-506
11 Nur, ibid, para. 57, 73-76
12 R. v. Lloyd 2014 BCCA 224, para. 31
13 R v Priest (1996), 110 CCC (3d) 289 at 297-8
14 2010 ONCA 575 para. 32
15 R v Alicandro 2009 ONCA 133 at para. 36
16 El-Jamel, ibid para. 32
17 R v Folino [2005] O.J. No. 4737 (ONCA) at para. 25
18 R v Jarvis (2006), 211 CCC (3d) 20 at 32.
19 Jarvis, ibid, para. 3-7
20 2015 SKPC 80
21 See: Dragos 2012 ONCA 538; Somogyi 2011 ONSC 483
22 Criminal Code of Canada, section 718.1
23 2014 ONCJ 184
