COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Faroughi, 2024 ONCA 178
DATE: 20240311
DOCKET: C68044
Zarnett, Thorburn and George JJ.A.
BETWEEN
His Majesty the King
Respondent
and
Arian Faroughi
Appellant
Breana Vandebeek, for the appellant
Katie Doherty, for the respondent
Heard: June 5, 2023
On appeal from the convictions entered by Justice Howard Leibovich of the Superior Court of Justice, sitting with a jury, on June 19, 2019, and from the sentence imposed on February 26, 2020, with reasons reported at 2020 ONSC 780.
Zarnett J.A.:
Overview
[1] Project Raphael was a police investigation targeting individuals seeking to purchase sexual services from underage persons. To this end, advertisements for sexual services were posted by undercover police officers on the escort subdirectory of Backpage.com. When a prospective customer would respond expressing interest, a text message conversation would ensue in which an undercover officer, posing as an escort, would describe themself as under the age of 18, agree to provide sexual services for a price, and discuss a location. When the prospective customer ultimately visited the agreed upon location they were arrested.
[2] On March 4, 2018, the appellant, who was 19 years old, responded to an advertisement, expressing interest in the sexual services of an escort. During the text exchange, the undercover officer, posing as a female escort, asked if the appellant was okay with her not yet being 18. The appellant answered that he was okay with it and, in response to questions he asked, was told that she was 14 and in Grade 8. The appellant proceeded to negotiate specific sexual services, a location, and a price. He was arrested when he arrived at the location with cash in the agreed upon amount.
[3] Following trial by judge and jury, the appellant was found guilty of two counts of child luring, contrary to ss. 172.1(1)(a) and (b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, and one count of communicating for the purpose of obtaining for consideration the sexual services of a person under the age of 18, contrary to s. 286.1(2) of the Code.
[4] After the trial, the appellant brought an application to stay his convictions, alleging entrapment. One of the appellant’s arguments was that the police induced him to commit the offences. After reviewing the totality of the circumstances, the trial judge was satisfied that the appellant was not entrapped, and he dismissed the application: R. v. Faroughi, 2020 ONSC 407, at paras. 24 and 33.
[5] At sentencing, the trial judge stayed, pursuant to Kienapple v. R., 1974 14 (SCC), [1975] 1 S.C.R. 729, the child luring conviction under s. 172.1(1)(a) of the Code. He proceeded to sentence the appellant for: (i) the child luring offence under s. 172.1(1)(b) of the Code (communicating with a person believed to be under 16 for the purpose of facilitating the offence of invitation to sexual touching); and (ii) the communication offence under s. 286.1(2) of the Code (communicating for the purpose of obtaining, for consideration, sexual services from a person under 18).
[6] Pursuant to ss. 172.1(2)(a) and 286.1(2)(a) of the Code, the child luring and communication convictions were subject to mandatory minimum sentences of one year’s imprisonment and six months’ imprisonment, respectively. The appellant challenged the constitutionality of both mandatory minimums as contravening the protection against cruel and unusual punishment in s. 12 of the Canadian Charter of Rights and Freedoms. The appellant’s position was that a conditional discharge was the fit sentence in this case, and therefore the mandatory minimums were grossly disproportionate for him. The appellant also argued, in the alternative, that the mandatory minimums were grossly disproportionate for reasonably foreseeable offenders.
[7] The trial judge determined that the fit sentence for the appellant was seven months’ imprisonment for each of the two offences, to be served concurrently. Since the fit sentence exceeded the six-month mandatory minimum for the communication offence required by s. 286.1(2)(a) of the Code, the trial judge only considered the constitutionality of the one year minimum for the child luring offence prescribed by s. 172.1(2)(a) of the Code. While he was satisfied that the one-year mandatory minimum was not grossly disproportionate for the appellant, he concluded that, at minimum, it would be grossly disproportionate in reasonably foreseeable circumstances. Accordingly, he declared that s. 172.1(2)(a) infringed s. 12 of the Charter and was of no force or effect.[^1]
[8] The appellant appeals his conviction and seeks leave to appeal his sentence. On his conviction appeal, the appellant argues that the trial judge erred by: (1) misdirecting the jury on the mens rea requirements of the child luring offence and the communication offence; and (2) dismissing the entrapment application by failing to conclude that the appellant was induced by the police.
[9] On his sentence appeal, the appellant argues that the sentence of seven months’ imprisonment was the result of an error in principle and was unfit. In the appellant’s submission, the trial judge overemphasized an aggravating factor and underemphasized significant mitigating factors: his youth, lack of a criminal record, strong family support, remorse, proactive engagement in sexual offence treatment and community service, strong prospects of rehabilitation, as well as expert evidence that he presented no risk of reoffending. When the competing factors are properly considered, the appellant submits that the fit sentence is a conditional sentence. The appellant contends that the trial judge erred by failing to declare the six-month mandatory minimum in s. 286.1(2)(a) to be an infringement of s. 12 of the Charter and of no force and effect, because it would result in a grossly disproportionate sentence for him.[^2]
[10] To support his sentence appeal, the appellant also brought an application to introduce fresh evidence. The fresh evidence consists of an affidavit from the appellant, outlining the developments in his life following the sentencing hearing. These include his completion of an engineering degree and onset of significant physical health issues.
[11] In the reasons that follow, I explain why the appellant’s conviction appeal is dismissed. I do not accept the appellant's argument that the trial judge misdirected the jury on the mens rea requirements of the offences, nor do I see any error in the trial judge's conclusion that the appellant was not entrapped.
[12] I also explain why I would admit the fresh evidence, grant leave to appeal sentence, allow the sentence appeal, and strike down the six-month mandatory minimum in s. 286.1(2)(a) of the Code as unconstitutional. A conditional sentence – which could reflect the principles of denunciation and deterrence and the principle of restraint for this youthful first offender – was not available on the child luring count at the time of sentencing due to the 14-year maximum punishment when prosecuted by way of indictment. That restriction on the availability of a conditional sentence has been removed due to a change in the relevant Code provisions. When there has been a change in the law of this nature between sentencing and appeal, it is as though the sentencing judge made an error in principle because, through no fault of their own, they did not consider relevant factors. In light of the exceptional mitigating factors present here, this “error” had an impact on the appellant’s sentence. In other words, there is a distinct possibility the appellant’s sentence may have been different had the appellant had the benefit of the current law at the time he was sentenced. Appellate intervention is therefore warranted.
[13] Taking into account all relevant factors and the fresh evidence of the appellant’s current medical condition, the fit sentence for the appellant is a nine-month conditional sentence. The mandatory minimum sentence requiring six-months’ imprisonment would be grossly disproportionate for the appellant and is therefore unconstitutional.
(1) The Factual Context of the Offences
[14] At 3:14 p.m. on March 4, 2018, the appellant sent a text to a number attached to an advertisement listed on Backpage.com. The advertisement had been placed there by Officer Cober, an undercover police officer working within Project Raphael. It was titled “New Young n Fresh - 18 - 18”. The advertisement contained two photographs of a woman. Unbeknownst to observers of the advertisement, these photos were of a 23-year-old female police officer.
[15] The appellant’s text said: “Hey babe you available[?]”. Officer Cober, posing as an escort, replied to the appellant’s text confirming that “she” was available. A text exchange ensued. About 40 minutes after the appellant’s initial text, Officer Cober asked, “Do you mind if I’m not 18 yet babe?”. The appellant subsequently replied, “I’m okay with it”. He also replied by asking for her specific age. Officer Cober answered, “14 but i turn 15 soon hun”. Later in the conversation, when the appellant asked the escort if she was in Grade 10, Officer Cober stated, “No grade 8”.
[16] During the text conversation, the appellant arranged for a two-hour encounter that, in exchange for $220, would include oral and protected sex, and an opportunity to ejaculate four times. The appellant also requested a “gfe”; Officer Cober testified at trial this meant a “girlfriend experience”.
[17] The appellant twice indicated an intention to abandon the plan to meet the escort, but then re-engaged. At 4:16 p.m. he texted, stating “Nvm cant come sorry”. Officer Cober replied, “Np bye”. At 4:31 p.m., the appellant re-commenced the text conversation, saying he could “be there by 5”, and at 4:35 p.m. he answered “Yeah” to the question “Are u coming?”. At 4:39 p.m., he texted saying “Nvm i wont be able to come”. In response, Officer Cober stated, “Stop playing games” and “U coming or not”. At 4:49 p.m. the appellant texted, “I’m coming”. Further texts confirming rates and location followed.
[18] The appellant ultimately arrived at the specified hotel at 5:54 p.m., where he was arrested. The appellant had $220 cash on his person, the negotiated price of the sexual transaction.
[19] The appellant testified at trial that most of the text conversation took place while he was at a bar with his friend, Mr. Yusaf.[^3] He claimed that Mr. Yusaf was the individual who encouraged him to seek an escort after he disclosed that he never had a girlfriend or sex before. The appellant explained that this was his first time on a website like Backpage.com and that he was just “goofing around” with his friend. According to the appellant, Mr. Yusaf told him that escorts often lie about their age, so he never believed the escort was underage. He also claimed he did not intend to meet the escort for sexual services. In cross-examination, the appellant asserted that he had not seen or spoken to Mr. Yusaf since that day.
[20] The appellant acknowledged that, by the time he called off the plan for a second time, he was alone in his car. When asked to explain why he re-engaged, the appellant cited the supposed escort’s messages in response to his statement that he was not coming. He said that he feared the possibility that if he did not provide the escort with the money, she may find his information using his cell phone number and ultimately tell his parents.
[21] During closing submissions, the Crown asked the jury to disbelieve the appellant’s testimony, describing the appellant’s assertion that he feared the escort as “farfetched and unbelievable”. The Crown also questioned the plausibility of the appellant’s narrative of meeting his friend at a bar mid-afternoon, suggesting it was odd that the appellant never attempted to contact Mr. Yusaf after his arrest.
The Conviction Appeal
[22] As noted, the appellant was found guilty by the jury of two counts of child luring contrary to ss. 172.1(1)(a) and (b) of the Code and one count of sexual commodification contrary to s. 286.1(2) of the Code. The appellant’s conviction appeal relates to the propriety of the jury charge and the trial judge’s entrapment ruling.
(1) Alleged Errors in the Jury Charge
[23] The appellant argues that the trial judge misdirected the jury on the mens rea requirements of the offences in several ways.
[24] This ground of appeal is assessed taking a functional approach to the review of the jury charge. An alleged error in charging the jury is considered in light of the entire charge and the trial as a whole. The key question is whether the charge enabled the jury to decide the case according to the law and the evidence: R. v. Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9; R. v. Goforth, 2022 SCC 25, 470 D.L.R. (4th) 617, at paras. 20-21; R. v. Abdullahi, 2023 SCC 19, 483 D.L.R. (4th) 1, at para. 35.
(a) Improper Grouping of Separate Elements
[25] First the appellant submits that the charge grouped together separate components of the mens rea of the offences in a manner that would have confused the jury. The mens rea of the offences has both a knowledge component – the appellant must have subjectively believed he was communicating with a person who was underage – and a purpose component – the appellant must have subjectively intended the communication to result in a specific activity.
[26] The appellant points to the language in one portion of the charge. He submits that in it, the trial judge improperly grouped the knowledge and purpose components, in the sense of suggesting that the jury could only find the appellant not guilty if they believed, or were left with a reasonable doubt by, the appellant’s evidence regarding both components. The trial judge stated:
If you believe [the appellant’s] evidence that he did not intend to have sexual relations for consideration with anyone and he did not believe that the person was under the age of 18, you must find him not guilty of all of the offences.
Even if you do not believe [the appellant’s] evidence that he did not intend to have sexual relations for consideration with anyone and he did not believe that the person was under the age of 18, if his evidence leaves you with a reasonable doubt about his guilt, you must find him not guilty of the offences.
Even if [the appellant’s] evidence that he did not intend to have sexual relations for consideration with anyone and he did not believe that the person was under the age of 18 does not leave you with a reasonable doubt of his guilt, or, about an essential element of the offence charged, you may convict him only if the rest of the evidence that you do accept proves his guilt beyond a reasonable doubt. [Emphasis added.]
[27] These passages of the charge refer, in summary form, to what the evidence of the appellant actually was – that he did not intend to have sexual relations for consideration with anyone (i.e. he did not subjectively meet the purpose component) and that he did not believe that the person he was dealing with and agreeing to meet was under the age of 18 (i.e. he did not subjectively meet the knowledge component). The jury would have understood that the trial judge was grouping these together because he was referring to the appellant’s actual testimony which grouped them together.
[28] But, when the charge is considered as a whole, these passages would not have left the jury with the impression that the appellant had to negate, or raise a reasonable doubt about, both the knowledge component and the purpose component to obtain an acquittal.
[29] The trial judge, before reviewing the specific elements of each offence, emphasized for the jury that there were “two critical issues that weave their way” through each count:
Has the Crown proven beyond a reasonable doubt that the accused believed that the person he was communicating with was … [underage] … and
Has the Crown proven beyond a reasonable doubt that the purpose of those communications was to have sexual relations with that person?
[30] The trial judge then outlined the essential elements of each offence, carefully describing that the knowledge and purpose components were separate essential elements; that the Crown had to prove each beyond a reasonable doubt; and that a reasonable doubt on any element was sufficient for an acquittal, but only proof beyond a reasonable doubt of each element would suffice for a conviction.
[31] For example, for the child luring offence under s. 172.1(1)(b) of the Code, he said:
For you to find Mr. Faroughi guilty of communicating by means of telecommunication with a person who he believed was under the age of 16 years for the purpose of facilitating the offence of invitation to sexual touching with respect to that person, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that Mr. Faroughi communicated by means of a telecommunication;
ii. that Mr. Faroughi believed the person with whom he was communicating was under the age of 16; and
iii. that the purpose of the communication was to facilitate the offence of invitation to sexual touching.
If Crown counsel has not satisfied you beyond a reasonable doubt of each of these essential elements, you must find Mr. Faroughi not guilty of this offence.
If Crown counsel has satisfied you beyond a reasonable doubt of each of these essential elements, you must find Mr. Faroughi guilty of this offence. [Emphasis added.]
[32] And for the communication offence under s. 286.1(2) of the Code, he told the jury:
For you to find Mr. Faroughi guilty of communicating with someone for the purpose of obtaining for consideration the sexual services of a person under the age of 18 years, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that Mr. Faroughi communicated with a person; and
ii. that the purpose of the communication was to obtain for consideration the sexual services of a person under the age of 18.
If Crown counsel has not satisfied you beyond a reasonable doubt of each of these essential elements, you must find Mr. Faroughi not guilty of this offence. [Emphasis added.]
[33] The trial judge also told the jury that they could believe all, some, or none of the appellant’s evidence.
[34] These instructions, taken together, would have made it clear to the jury that the appellant’s evidence did not need to be accepted, or raise a reasonable doubt, on all elements for an acquittal to result. The jury would have understood that if they accepted the appellant’s evidence or if it raised a reasonable doubt about any element of the offences – for example the knowledge component or the purpose component – they were to acquit.
(b) Subjective Purpose
[35] The appellant’s second submission on the mens rea point is that the trial judge did not explain to the jury that the purpose component of the offences required a consideration of the appellant’s subjective state of mind. The appellant argues that the trial judge wrongly left the impression that the act of offering money for sexual services disposed of the purpose element. He submits that, while the act of communicating such an offer may support an inference as to what was in the appellant’s mind, it does not necessarily prove his subjective purpose. He says the trial judge conflated the act of communicating and the state of mind of the appellant, pointing to the portion of the charge in which the trial judge stated:
You must consider all the evidence to determine what was the purpose of the communication. In order to find that Crown counsel has proven this element of the offence beyond a reasonable doubt, you must find that the purpose of the communication was to obtain sexual services for consideration. The Crown alleges that the accused arranged to pay for two hours of sexual intercourse for $220. If you are satisfied beyond a reasonable doubt that this is what occurred, in law this would amount to consideration for sexual services. [Emphasis added.]
[36] I do not accept this argument. When the charge is considered as a whole, the jury would have understood the need to consider the appellant’s subjective state of mind. In his instructions, the trial judge told the jury they had to determine whether the purpose of the communication was to obtain for consideration the sexual services of an underage person, and that they had to consider all of the evidence to answer that question. He referred to the Crown’s reliance on various evidence from which the purpose could be inferred:
Crown counsel relies on the evidence set out in the text messages between Mr. Faroughi and Officer Cober, the fact that the accused attended at the hotel room where he was scheduled to meet the "escort" and the fact that upon arrest the accused was found with $220, the amount that was negotiated in the text messages.
[37] And he referred to the defence evidence that the actual purpose was absent:
The defence relies upon the evidence of Mr. Faroughi…. He testified that while he texted information about location and rates and services, he was just goofing around. He had no intention of obtaining sexual services from the escort…. He testified that when he received the text "Stop playing games, are you coming or not?" he was scared and nervous. He was worried that the escort could track his phone and link it to his parents and then tell his parents. He decided that he was going to go to the hotel and give the escort the money but not engage in any sexual activity but just to end it.
[38] Taking the instructions as a whole, it would have been clear to the jury that they needed to go beyond the appellant’s communications offering money in exchange for sexual services and find, beyond a reasonable doubt, that these communications reflected the appellant’s actual purpose.
[39] The portion of the impugned passage that I have underlined above (in para. 35) would not have confused the jury, in light of the charge as a whole. As was discussed at the pre-charge conference, its goal was to clarify for the jury what in law constituted consideration. In my view, it would not have had the effect of distracting the jury from their task of determining the appellant’s subjective state of mind that had to be proven beyond a reasonable doubt.
(c) Co-existence of Knowledge and Purpose
[40] Finally, the appellant contends that the charge did not make clear that the knowledge and purpose components needed to exist simultaneously. He submits that the jury would not have appreciated that if they believed the appellant intended to secure sexual services at the beginning of the text exchange but changed his mind sometime after being told the “escort” was under 18, they could not convict.
[41] Contrary to this submission, however, the instructions clearly stated that the jury needed to be satisfied beyond a reasonable doubt that “the purpose of the communication was to obtain for consideration the sexual services of a person under the age of 18”. As such, the jury would have recognized that, for a finding of guilt, they needed to be satisfied that the appellant believed the undercover officer, who was both the person he was communicating with and the one offering sexual services, was under the age of 18 at the time he was communicating with her for a prohibited purpose.
(d) Conclusion
[42] The jury was properly equipped to decide the case according to the law and the evidence. This ground of appeal therefore fails.
(2) Entrapment Ground of Appeal
[43] Entrapment is a form of abuse of process, the remedy for which is a stay of proceedings. In R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903, at pp. 964-65, the Supreme Court of Canada outlined the two ways in which entrapment can occur: (a) the authorities provide a person with an opportunity to commit an offence without acting on a reasonable suspicion that the person is already engaged in criminal activity or pursuant to a bona fide inquiry; or (b) although having such a reasonable suspicion or acting in the course of a bona fide inquiry, they go beyond providing an opportunity and induce the commission of an offence.
[44] At the oral hearing of the appeal, the appellant abandoned his argument on the first manner of entrapment in light of R. v. Ramelson, 2022 SCC 44, 475 D.L.R. (4th) 458. In that case, the Supreme Court determined that Project Raphael was a bona fide inquiry.
[45] The appellant therefore focused on the second manner of entrapment, arguing that the trial judge erred in his determination that the police did not induce him to commit the offences. The appellant submits that the police knowingly exploited his vulnerabilities of being youthful and nervous by pressuring him with statements like “Stop playing games” and “U coming or not” after he indicated a desire to disengage for a second time.
[46] In his reasons dismissing the entrapment application, the trial judge found that it was “clear” the appellant was not induced to commit the offences. He noted that: (a) the texts revealed no threat or coercion by the police; (b) the appellant initiated the text exchanges, was actively involved in the conversation, and showed an understanding of language associated with sex work; and (c) the appellant reengaged with the undercover officer twice.
[47] The inducement branch of the entrapment doctrine provides that the police cannot “emplo[y] means which go further than providing an opportunity” to commit a crime: Mack, at p. 966. This assessment involves a consideration of various factors, including whether the police appear to have exploited a particular vulnerability and whether an average person in the position of the accused would be induced: Mack, at p. 966. I agree with the Crown that the appellant’s argument that the inquiry should also be informed by the appellant’s personal circumstances and his explanations for feeling induced, revealed only after the police conduct had occurred, must be rejected. Given that the entrapment doctrine acts as a check on police conduct that society may otherwise find intolerable, the focus of the inducement branch must be on the conduct of the state. As Karakatsanis J. stated: “the assessment is objective and focuses on the police’s conduct, not on that conduct’s effect ‘on the accused’s state of mind’”: R. v. Jaffer, 2022 SCC 45, 475 D.L.R. (4th) 490, at paras. 9; Mack, at p. 965.
[48] The trial judge was entitled to conclude that the appellant was not induced. While the appellant’s texts revealed he was youthful – he said he was 20 years old – the entirety of the conversation does not suggest the police exploited a particular vulnerability that should have been known to them. The trial judge found that the appellant’s texts did not reveal an “immature or unknowing individual” or a “passive customer”. He negotiated services and rates. Following the officer’s statements of “Stop playing games” and “U coming or not”, the appellant re-engaged after a nine-minute delay. His subsequent behaviour, viewed through an objective lens, undermined the suggestion that the police created fear, as he continued to negotiate the price and refused to bring the cigarettes requested by the undercover officer. I see no error in the trial judge’s conclusion that the statements of the undercover officer would not have induced an average person in the position of the appellant.
[49] I therefore reject this ground of appeal.
The Sentence Appeal
[50] Sentencing judges are afforded significant deference when crafting a sentence. In the absence of a demonstrably unfit sentence, or an error in principle that impacted the sentence, an appellate court will not intervene: R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 25-26; R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. However, if one of the above errors is identified, an appellate court is permitted to sentence de novo: Friesen, at para. 27. Of course, even if this court is permitted to sentence afresh, it is bound to respect any mandatory minimum sentence for the offence in question, unless the mandatory minimum is constitutionally invalid.
[51] The appellant submits that the trial judge ought to have imposed a conditional sentence instead of a seven-month term of imprisonment to run concurrently on each offence. To succeed in that submission, he must show that: (i) the trial judge erred in principle in a way that impacted the sentence or that he imposed a demonstrably unfit sentence; (ii) a conditional sentence is the fit sentence; and (iii) the six-month mandatory minimum sentence applicable to the communication offence is constitutionally invalid (as a conditional sentence is not available where a mandatory minimum custodial sentence is prescribed, under s. 742.1(b) of the Code).
[52] The appellant argues that the trial judge committed two errors in principle. First, he submits that the trial judge overemphasized the sole aggravating factor in this case, which was the degree of sexual activity that the appellant arranged to engage in with a 14-year-old. Second, he argues that the trial judge underemphasized the mitigating factors, particularly his youth, lack of a criminal record, the absence of risk of reoffending, and his excellent rehabilitative prospects. In oral argument, the appellant suggested that the trial judge “devalued” these mitigating factors. The appellant also contends the concurrent sentences of seven months’ imprisonment were demonstrably unfit.
[53] When the competing factors are properly weighed, the appellant submits that this is an exceptional case where a fit sentence would be a conditional sentence.
[54] The appellant argues that the mandatory minimum in s. 286.1(2)(a) is not an obstacle to a conditional sentence being imposed, as it infringes s. 12 of the Charter because a sentence of six months’ imprisonment would be grossly disproportionate against him. He notes that prior Ontario Superior Court cases have found s. 286.1(2)(a), and its predecessor, invalid.
[55] In contrast, the Crown argues that the trial judge properly weighed the aggravating and mitigating factors, and that the sentence he imposed was fit. In the Crown’s submission, the trial judge appropriately recognized that the fact that the appellant arranged extensive sexual activity with someone who he believed to be 14 years old elevated the seriousness of the offences. As well, the trial judge properly gave effect to the mitigating factors by imposing a custodial sentence below the typical range of 12-24 months that was based on pre-Friesen caselaw. Alternatively, if the trial judge did materially err in principle or impose a demonstrably unfit sentence, the Crown contends that the mandatory minimum under s. 286.1(2)(a) is constitutional, pointing to the conclusion reached in Procureur général du Québec c. C.M., 2021 QCCA 543.
[56] I will proceed to analyze the appellant’s sentence appeal in the following steps. First, I briefly summarize the trial judge’s sentencing reasons. Second, I explain why the failure of the trial judge to consider a conditional sentence – an alternative to incarceration that was not available at the time of sentencing on the child luring count but is available now due to a change in the relevant Code provisions – combined with the exceptional mitigating factors present here, is appropriately treated as an error in principle warranting appellate intervention. Third, I discuss why I would admit the appellant’s fresh evidence. Fourth, I conclude that concurrent conditional sentences of nine months are fit. Finally, I conclude by explaining why the imposition of the mandatory minimum under s. 286.1(2)(a) would be grossly disproportionate against the appellant, infringing s. 12 of the Charter in a manner that cannot be saved by s. 1.
(1) The Trial Judge’s Reasons for Sentence
[57] When ascertaining the fit sentence for the appellant, the trial judge began his analysis by outlining the circumstances of the offence and the offender.
[58] Regarding the circumstances of the offence, the trial judge referred to the mens rea requirements of the child luring and communication offences. By finding the appellant guilty of the offences, the jury had been satisfied beyond a reasonable doubt that: (i) the appellant believed the person with whom he was communicating was under the age of 16; and (ii) the purpose of the communication was to have sexual relations with that person. To the extent that it was unclear from the jury’s verdict, the trial judge was satisfied that the appellant, and not Mr. Yusaf, was the “driving force” behind the communications, rejecting the appellant’s assertion that Mr. Yusaf told him what to text.
[59] Regarding the circumstances of the offender, the trial judge noted that: (i) the appellant was 19 at the time of the offence; (ii) he had immigrated from Iran to Canada in 2010 with his family which was supportive, close-knit, and loving; (iii) sex was a topic never discussed in his home; and (iv) he had done well in school, and was, at the time of sentencing, a biomedical engineering student in university with a wish to be a neurosurgeon one day.
[60] The trial judge then referenced a report of Dr. Julian Gojer, a psychiatrist who assessed the appellant at the request of his trial counsel. Dr. Gojer found that the appellant did not suffer from any major mental illness and had no problems with drug or alcohol dependence. There was no evidence to suggest a personality disorder, psychopathy, or criminality, nor any indication of pedophilia, hebephilia, or any sexual deviation. In Dr. Gojer’s opinion, the appellant, though maintaining his position that he thought he was dealing with a person over 18, was remorseful, and understands that sexual contact with underage persons is wrong as well as the harm associated with underage prostitution. Dr. Gojer was of the view that the appellant required no further individual therapy, although he recommended group therapy with a social worker to assist with dating and improve sociosexual skills. Dr. Gojer concluded that the appellant did not pose any risk to society. He considered the appellant’s actions to have been “a product of very poor judgment as an immature sheltered 19-year old male with virtually no prior sexual experiences”.
[61] The trial judge also referred to the opinion of Dr. Monik Kalia, a forensic psychologist and to the appellant’s proactive attendance at sex offence therapy sessions after he was charged with the offences at issue. Dr. Kalia opined that, although maintaining that he thought the person he was dealing with was above the age of 18, the appellant was insightful about the inappropriateness of “contact with underaged children and the social and moral implications of prostitution”. Dr. Kalia also found no signs of mental illness, impulsivity, or antisocial attitudes or behaviours.
[62] Finally, the trial judge referenced the appellant’s apology at the sentencing hearing and his completion of 313 hours of community service for Habitat for Humanity since his arrest.
[63] The trial judge identified the aggravating factor to be the degree of sexual activity that the appellant arranged to engage in with a 14-year-old. The trial judge stated that the offences were serious and the sentencing range was 12-24 months. He cited R. v. Cowell, 2019 ONCA 972, 151 O.R. (3d) 215, leave to appeal refused, [2020] S.C.C.A. No. 54, to support his conclusion that this range was appropriate for first-time offenders.
[64] The trial judge rejected the defence submission that a non-custodial sentence would be fit. He stated that the appellant’s “highly culpable” behaviour “require[d]” the imposition of a custodial sentence.
[65] The trial judge recognized that the appellant’s mitigating factors served to reduce a fit sentence for the appellant below the typical range. However, he distinguished the appellant’s case from others where sentences as low as three months were imposed, noting that those involved guilty pleas with supporting psychological reports or individuals facing immigration consequences.
[66] Ultimately, the trial judge was satisfied the fit sentence for each offence was seven months’ imprisonment, to be served concurrently. While the trial judge held that the one-year mandatory minimum attached to s. 172.1(2)(a) for the child luring offence was not grossly disproportionate against the appellant, he was satisfied that it would be in a reasonably foreseeable circumstance, and he held that provision to be constitutionally invalid. As the sentence he determined to be fit was more than six months, he considered it unnecessary to address the constitutional validity of the six-month mandatory minimum in s. 286.1(2)(a) for the communication offence.
(2) The Error in Principle
(a) Introduction
[67] I accept the appellant’s submission that the sentence imposed does not give proper effect to the mitigating factors and thus to the principle of restraint which requires a trial judge to seriously consider all sanctions short of incarceration. Because the appellant was challenging the validity of the mandatory minimum sentences, the trial judge was obliged to first consider what would be a fit sentence for the appellant without regard to restrictions on that sentence due to the mandatory minimums. While the trial judge did proceed in that way, and considered and rejected the appropriateness of a non-custodial sentence, as I will explain, he did so in a different legislative context which provided significantly fewer non-custodial alternatives.
[68] At the time of sentencing, quite apart from the mandatory minimum sentences attached to the relevant offences, a conditional sentence was not available for the child luring count because it carried a maximum sentence of 14 years. Between the time of sentencing and this appeal, there has been an amendment to the Code, and the restriction on the availability of a conditional sentence arising from the 14-year maximum sentence no longer exists. As a result of this change in the law, and through no fault of the trial judge, the appropriateness of a conditional sentence specifically – as opposed to other, less onerous non-custodial sentencing options – was never considered. This is akin to an error in principle that can justify appellate intervention: R. v. Bunn, 2000 SCC 9, [2000] 1 S.C.R. 183, at para. 21.
(b) The Principle of Restraint and Conditional Sentences
[69] The principle of restraint is codified in ss. 718.2(d) and 718.2(e) of the Code, which require a sentencing judge to take into consideration “all available sanctions, other than imprisonment, that are reasonable in the circumstances”. As the Supreme Court established in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 90, it is due to the restraint principle that the failure to seriously consider a conditional sentence “when the statutory prerequisites are met … may well constitute reversible error”.
[70] The restraint principle requires, to the extent reasonably possible, that a sentence be tailored to the circumstances of the accused and give appropriate consideration to rehabilitation: R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paras. 32-34; R. v. Blanas (2006), 2006 2610 (ON CA), 207 O.A.C. 226 (C.A.), at para. 5.
[71] The principle of restraint takes on an elevated importance where, as here, the case involves a first-time offender who is youthful: R. v. Sousa, 2023 ONCA 100, 165 O.R. (3d) 641, at para. 37.
[72] As the trial judge correctly recognized, in some circumstances, a period of incarceration will still be appropriate for first-time offenders who commit child luring: see e.g., Cowell, at para. 103; R. v. Jaffer, 2021 ONCA 325, 155 O.R. (3d) 535 (“Jaffer (ONCA)”), at para. 28, aff’d on other grounds 2022 SCC 45, 475 D.L.R. (4th) 490. This is consistent with the instruction in Friesen that the objectives of denunciation and deterrence must be prioritized when sentencing an offender for sexual crimes against children: at para. 101. When a judge fails to do so, and instead overemphasizes the principle of restraint in a manner that fails to recognize the gravity of the offence, they commit an error justifying appellate intervention: R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, at paras. 32-33.
[73] Nevertheless, conditional sentences can be appropriate in circumstances where denunciation and deterrence are the predominant sentencing objectives, as such a sentence with punitive conditions can provide a significant amount of denunciation and deterrence: Proulx, at paras. 102, 107; R. v. Jacko, 2010 ONCA 452, 101 O.R. (3d) 1, at paras. 71-73. And the restraint principle continues to be applicable in circumstances where, like in this case, the primary sentencing principles are denunciation and deterrence: R. v. A.B., 2023 ONCA 254, at para. 55; R. v. S.K., 2021 ONCA 619, at para. 12. This court has recognized that, in some exceptional circumstances, a conditional sentence may be fit for an offender convicted of sexual offences against children: see e.g., R. v. M.M., 2022 ONCA 441, at para. 16; R. v. B.M., 2023 ONCA 224, 166 O.R. (3d) 721, at para. 2.
(c) Failure to Give Effect to the Restraint Principle
[74] Whether the restraint principle has been given appropriate consideration is a contextual question. When a court considers whether there is an available sanction alternative to imprisonment that is reasonable in the circumstances, much depends on the identification of available alternative sanctions.
[75] At the sentencing hearing, defence counsel primarily sought a conditional discharge with a probation order, and alternatively some other non-custodial sentence. This was the context for the trial judge’s statement that a non-custodial sentence was “simply not appropriate given the seriousness of the offence and the typical range for these offences”. Although the Crown relies on this comment to show that the trial judge did consider, and reject, non-custodial sentencing options as unfit, in my view this comment has limited value, because it must be read in light of the non-custodial sentencing options that were available to the trial judge at the time. It does not show that the trial judge, in applying the restraint principle, considered, and rejected, the fitness of a conditional sentence. A conditional sentence was not available at the time on the child luring count, not because of the mandatory minimum which the trial judge struck down as unconstitutional, but because of the fourteen-year maximum sentence.
[76] At the time the appellant committed the offences in March of 2018, through to the time the trial judge released his sentencing decision in February of 2020, s. 742.1(c) precluded a conditional sentence for an offence prosecuted by indictment for which the maximum term of imprisonment is 14 years or life. At the time of sentencing (and now), the child luring count provided for a maximum term of imprisonment of 14 years where the Crown proceeds by indictment, which the Crown did in this case. This meant that a conditional sentence was not available for the child luring count at the time of sentencing.[^4] The trial judge was alive to this and specifically adverted to the unavailability of a conditional sentence for the child luring count due to the 14-year maximum punishment. He said, at para. 41 of his sentencing reasons, that “[b]y creating mandatory minimum sentences, and by raising the maximum sentence to 14 years, where the Crown proceeds by indictment, Parliament made conditional sentences unavailable” (emphasis in original): quoting from R. v. Saffari, 2019 ONCJ 861, at para. 46.
[77] Between sentencing and the time this appeal was argued, Parliament passed An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, S.C. 2022, c. 15, which received royal assent on November 17, 2022 and replaced the 14-year maximum restriction previously in s. 742.1(c) with a new restriction that has no application to this appeal. The mandatory minimum sentence for child luring when prosecuted by indictment was struck down by the trial judge as unconstitutional (as recently affirmed in R. v. Bertrand Marchand, 2023 SCC 26, 487 D.L.R. (4th) 201). Therefore, a conditional sentence is now available for child luring prosecuted by indictment.
[78] When there has been a change in the law of this nature between sentencing and appeal, it is as though the sentencing judge made an error in principle because, through no fault of their own, they did not consider relevant factors. As the Supreme Court explained in Bunn, at para. 21, which was also a case where a conditional sentence was not available at sentencing but was available on appeal:
Where there has been an intervening change in the law between sentencing and appeal, it is as though the sentencing judge has committed an error in principle, albeit for reasons beyond his or her control, because relevant principles have not been considered. The Court of Appeal need not, therefore, defer to all of the trial judge's findings, and can proceed to re-sentence the respondent in light of the new principles.
See also R. v. Lavergne, 2023 ONCA 592, 429 C.C.C. (3d) 444, at para. 16; R. v. Herman, 2023 ABCA 330, at paras. 17-18.
[79] When read as a whole, and in light of the principle in Bunn, the sentencing reasons do not reflect a proper consideration of the restraint principle.
[80] Although the trial judge made reference to mitigating factors in reducing the custodial sentence below what he considered the typical range, the trial judge’s reasons contain no discussion about how a carceral sentence was compatible with the objective of rehabilitation, a principle closely linked to the restraint principle.
[81] References to an offender’s mitigating factors and rehabilitative prospects will not necessarily indicate an appropriate consideration of rehabilitation: R. v. Marzouk, 2021 ONCA 855, at para. 23; R. v. Francis, 2022 ONCA 729, 164 O.R. (3d) 401, at para. 81. And although the trial judge referenced the appellant’s excellent rehabilitative prospects, he did not explain how a period of incarceration would still promote, rather than hinder, his rehabilitation. This reinforces the idea that the principle of restraint was not considered in the manner that it should have been had the alternative of a conditional sentence been available: R. v. Ali, 2022 ONCA 736, 164 O.R. (3d) 81, at para. 42.
[82] The trial judge focused on the objectives of denunciation and deterrence, but these references cannot be taken to constitute a rejection of the ability of a conditional sentence to meet those objectives for a teenaged first offender like the appellant. For example, at para. 30 of his reasons the trial judge cited cases involving older offenders, such as Cowell. He did not meaningfully distinguish the appellant from those cases: for a similar error, see R. v. Folino (2005), 2005 40543 (ON CA), 77 O.R. (3d) 641 (C.A.), at paras. 24, 27.
[83] The appellant was very young at the time of the offences and exhibited characteristics distinct from most offenders. Denunciation and deterrence are predominant principles in sentencing for these offences, but the restraint principle remains applicable and has a heightened importance when the first-time offender is young. The appellant’s position at sentencing was that a punishment short of incarceration was the fit sentence. Through no fault of his own, the trial judge was unable to give serious consideration to a non-custodial sentence in the form of a conditional sentence which can provide a significant amount of denunciation and deterrence while advancing rehabilitation. The result is that the trial judge did not properly consider and give effect to the restraint principle in determining the sentence that was fit in these circumstances. This is treated as an error in principle: Bunn, at para. 21.
[84] Not every case where a conditional sentence was not available to the sentencing judge and subsequently becomes available between sentencing and appeal will warrant appellate intervention: Lavergne, at para. 18. However, in the unique circumstances of this case – in particular, the appellant’s youthfulness, the fact that he was a first-time offender, and the other mitigating factors discussed below – I conclude that there has been an impact on the sentence. In other words, in the language of Bunn, there is a “distinct possibility” the appellant’s sentence may have been different had the appellant had the benefit of the current law at the time he was sentenced: at para. 19.
[85] Accordingly, this court is entitled to sentence de novo.
(3) The Fresh Evidence Should be Admitted
[86] The potential availability of a conditional sentence bears directly on the admissibility of the fresh evidence.
[87] The appellant seeks to introduce an affidavit from himself, dated May 26, 2023, that outlines developments in his life since the trial judge imposed his sentence. He describes his completion of an engineering degree and that he has recently co-founded his own business. Most notably he describes the recent onset of significant health problems including severe back pain and urinary problems that required surgery. As part of his recovery, the appellant walks with a cane, and requires ongoing therapy.
[88] This court has broad discretion under s. 683(1) of the Code to admit fresh evidence on appeal where “it considers it in the interests of justice”. In a sentence appeal, s. 687(1) of the Code permits the court to receive evidence “it thinks fit to require or to receive”. Admissibility is governed by the test outlined in Palmer v. The Queen, 1979 8 (SCC), [1980] 1 S.C.R. 759: see R. v. Lévesque, 2000 SCC 47, [2000] 2 S.C.R. 487, at para. 22. The Supreme Court in Lévesque articulated Palmer criteria in the following manner, at para. 35:
The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases.
The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue relating to the sentence.
The evidence must be credible in the sense that it is reasonably capable of belief.
The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[89] I am satisfied that the Palmer criteria are met. There can be little dispute about the first three factors. With respect to the fourth factor, although some of the fresh evidence is confirmatory of the positive path the appellant’s life was expected to take based on the information available at the sentencing hearing, the evidence of health issues is completely new. This court has recognized that the development of significant health issues following the imposition of a sentence can, in some cases, make incarceration harsher than anticipated at the time of sentencing: see R. v. Ukwuaba, 2021 ONCA 152, at para. 11. While the development of significant health issues post-sentence may not always warrant appellate interference with an offender’s sentence, in this case there is a real risk that the appellant’s physical limitations will heighten the harms of incarceration that are often experienced by youthful offenders: see R. v. Hilbach, 2023 SCC 3, 477 D.L.R. (5th) 84, at para. 106. Even in cases of sexual offences against children a health issue can be an exceptional reason why a conditional sentence, rather than a custodial one, would be appropriate: M.M., at para. 16; B.M., at para. 2.
[90] Accordingly, it can reasonably be expected that this evidence, taken together with the other evidence, would have affected the determination of whether a custodial sentence would be considered fit, or given the legal availability of a conditional sentence, whether a conditional sentence was fit. I would therefore grant the appellant’s fresh evidence application and consider the affidavit when ascertaining the fit sentence as well as in the comparison of the mandatory minimum sentence to the fit sentence.
(4) The Fit Sentence
[91] With the trial judge’s sentence set aside, this court must determine a fit sentence for the appellant.
[92] This determination starts with the recognition that the fundamental sentencing principle is proportionality, requiring sentences to be proportionate to the gravity of the offence and the offender’s degree of responsibility: Friesen, at para. 30; R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 61. The restraint principle operates within the boundaries of the proportionality principle: Morris, at para. 112.
[93] In terms of the gravity of the appellant’s offences, there is no question that they were serious, particularly in light of their mens rea requirements. As Friesen made clear, courts must impose sentences that are commensurate with the gravity of sexual offences against children: at para. 76. In light of Parliament’s decision to increase maximum sentences for these offences and society’s improved understanding of the severity of the harm arising from such offences, sentences for these crimes must increase, and mid-single digit penitentiary terms should be viewed as normal: Friesen, at paras. 5, 99, 114.
[94] In ascertaining the gravity of sexual offences against children, courts must give effect to (a) the inherent wrongfulness of these offences; (b) the potential harm to children that flows from these offences, and (c) the actual harm that children suffer as a result of these offences: Friesen, at para. 76. Because of their inherent wrongfulness, inchoate offences that occur within the context of a police sting operation, such as the ones committed by the appellant, should never be viewed as “victimless”: Friesen, at para. 94. Although the absence of a specific victim is relevant to ascertaining an offence’s gravity, it cannot be overemphasized – the accused gets no credit for this factor: Friesen, at para. 93. In the child luring context, other relevant considerations can include: (a) the secondary offence being facilitated; (b) the duration and frequency of the communications; and (c) the age difference between the parties: see R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at paras. 146-47.
[95] When these considerations are weighed, it remains undoubtedly true that the offences were serious, recognizing that the appellant communicated with someone who he believed to be below the age of 16 for the purpose of obtaining sexual services involving extensive sexual activity.
[96] In terms of the offender’s degree of responsibility, multiple factors are relevant, including: (a) the mens rea of the offence; (b) the offender’s conduct in the commission of the offence; (c) the offender’s motive; and (d) the offender’s personal circumstances: R. v. Hills, 2023 SCC 2, 477 D.L.R. (4th) 1, at para. 58. The mens rea of the appellant’s offences are highly morally blameworthy: see Friesen, at paras. 88-89.
[97] There are also factors that attenuate the appellant’s culpability including his age and his lack of sophistication.
[98] A fit sentence must also consider the appellant’s other mitigating factors, including: his lack of criminal record, his sincere remorse, his pro-social lifestyle, his family support, his complete lack of risk to the public, his proactive participation in sexual offence treatment, his proactive volunteer work, and, as indicated in his fresh evidence, his significant medical hardships. The personal circumstances of this appellant require this court, while giving due consideration to denunciation and deterrence, to meaningfully consider the principle of restraint and assess whether a non-carceral sentence is appropriate: Batisse, at para. 32.
[99] This court has consistently reiterated post-Friesen that conditional sentences will rarely be appropriate for sexual offences against children: see M.M., at para. 16; B.M., at para. 2. Even so, in some exceptional circumstances, incarceration will not be appropriate. For example, without creating any bright-line rules, this court in M.M.suggested that some offenders experiencing medical hardship that cannot be adequately addressed within a correctional facility may fall within these circumstances: at para. 16. As I will explain, I am satisfied that, given the appellant’s immaturity and sexual inexperience at the time of the offence, the fact that this was his first offence, his recent medical hardships, and his impressive efforts in taking accountability for his actions and serving his community post-sentence, a conditional sentence is available in these circumstances.
[100] To be clear, nothing in these reasons should be taken as suggesting that the sentencing range for these offences has changed, nor should it be taken as suggesting that a conditional sentence will always be appropriate for a youthful first-time offender who commits these offences.
[101] However, other Project Raphael cases where carceral sentences were found to be appropriate are clearly distinguishable from the case at bar. In the following cases the offenders were much older than the appellant: Cowell; R. v. Aguilar, 2022 ONCA 353. This court also upheld or substituted carceral sentences of around six months against relatively youthful first-time offenders in Jaffer (ONCA) and R. v. Chang, 2019 ONCA 924. The appellant’s circumstances, however, remain distinct from those cases because he was a teenager at the time of the offences and he has other significant mitigating factors, particularly his physical health problems and extensive proactive participation in therapy and community service.
[102] When determining whether a conditional sentence is appropriate, a court must engage in a two-step process. First, the court must make a preliminary determination that neither probation nor a penitentiary term is appropriate: Proulx, at para. 58; R. v. Scholz, 2021 ONCA 506, 156 O.R. (3d) 561, at paras. 26-27. Second, assuming the offender satisfies the other statutory prerequisites enumerated under s. 742.1 of the Code, the court must determine whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing: Proulx, at para. 60.
[103] In this case, the preliminary step is satisfied because probation would insufficiently advance denunciation and deterrence, and a carceral sentence of two years or greater would be excessive. Moreover, the appellant meets the other statutory prerequisites. While offences subject to a mandatory minimum are not eligible for a conditional sentence pursuant to s. 742.1(b), because the appellant challenged the constitutionality of the mandatory minimums, the assessment of a fit sentence can still consider the adequacy of this alternative to a carceral sentence: see Hills, at para. 143.
[104] The key question then becomes whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing. In the context of sexual offences against children, conditional sentences will often fail to adequately achieve denunciation and deterrence, which have a paramount status for these kinds of offences: see Friesen, at paras. 101-5. As stated in Proulx, at para. 114, “[w]here punitive objectives such as denunciation and deterrence are particularly pressing … incarceration will generally be the preferable sanction”.
[105] However, because the appellant was a first-time offender and was still a teenager at the time of the offence, the restraint principle, and the associated need to meaningfully consider the objective of rehabilitation, also take on an elevated importance. Similarly, the recent onset of the appellant’s significant physical health issues must be taken into consideration in crafting a fit sentence. Through expressing genuine remorse, proactively participating in sex offence therapy, completing his engineering degree, and volunteering hundreds of hours for charity, the appellant has taken real steps to rehabilitate, provide reparations to the community, and promote a sense of responsibility and acknowledgement of harm. His sentence should not undermine this progress.
[106] Recognizing the unique circumstances of this case where there is a genuine need for the sentence to reflect the principles of denunciation and deterrence while giving effect to restorative objectives, I am satisfied that concurrent conditional sentences of nine months are fit: see Proulx, at para. 100. To adequately achieve the objectives of denunciation and deterrence, the conditional sentences will include punitive conditions, such as house arrest: Proulx, at paras. 102-3, 107. These objectives will also be achieved by the stigma associated with the appellant’s convictions: Proulx, at para. 105. Conditional sentences better advance the rehabilitative prospects of an offender: Proulx, at para. 109. That is especially true here. There is a real risk that a carceral sentence, even of a limited duration, would expose this youthful offender to harm and interfere with his rehabilitation.
(5) The Constitutional Challenge
[107] The final issue on the appellant’s sentence appeal is whether the fit sentences otherwise determined can be imposed because of the mandatory minimum under s. 286.1(2)(a) of the Code, or whether that section is invalid because it infringes s. 12 of the Charter. This mandatory minimum specifies a minimum punishment of six months’ imprisonment for a first offence under s. 286.1(2), which prohibits obtaining for consideration, or communicating with anyone for the purpose of obtaining for consideration, the sexual services of a person under the age of 18.
[108] In Hills, the Supreme Court reaffirmed the two-step test for assessing whether a mandatory minimum complies with s. 12 of the Charter. First, the court must assess what constitutes a fit and proportionate sentence having regard to the objectives and principles of sentencing in the Code: at para. 40. Second, the court must assess whether the impugned provision requires the imposition of a sentence that is grossly disproportionate to the fit and proportionate sentence: at para. 40. This two-part assessment can proceed on the basis of either the actual offender before the court or another offender in a reasonably foreseeable case: at para. 41.
[109] The appellant submits that the imposition of the mandatory minimum against him would be grossly disproportionate. I agree.
[110] Trial court decisions in Ontario and Alberta have struck down the six-month mandatory minimum in s. 286.1(2)(a), and its similarly worded predecessor s. 212(4), on the basis of reasonable hypotheticals: R. v. Badali, 2016 ONSC 788, 27 C.R. (7th) 191; Sa Majesté La Reine c. Jacques Lalonde, 2017 ONCS 2181; R. v. C.D.R., 2020 ONSC 645; R. v. Charboneau, 2019 ABQB 882, 448 C.R.R. (2d) 108; R. v. Alvi, 2018 ABPC 136, 73 Alta. L.R. (6th) 407. In R. v. J.L.M., 2017 BCCA 258, 353 C.C.C. (3d) 40, leave to appeal refused, [2017] S.C.C.A. No. 386, the Court of Appeal for British Columbia found the six-month mandatory minimum in s. 286.1(2)(a) grossly disproportionate for the offender before the Court, who was a first-time Indigenous offender suffering from various health problems. The Court held that the mandatory minimum of six months materially exceeded the bottom end of the sentencing range for that offender, which was a suspended sentence, and was therefore grossly disproportionate: at paras. 53-55. The Court also went on to strike the mandatory minimum on the basis of reasonable hypotheticals, and ultimately imposed a nine-month conditional sentence on the offender: at paras. 62, 93.
[111] Post-Friesen, the Court of Appeal of Quebec upheld this mandatory minimum in C.M. In that case, the Court held that a sentence of 6 months was not grossly disproportionate for the 55-year-old offender before the Court. The Court declined to strike down the mandatory minimum on the basis of reasonable hypotheticals because they had not been considered by the trial judge and were not fully argued on appeal.
[112] The Ontario Court of Justice followed C.M. and declined to strike down the mandatory minimum in R. v. Dawson, 2022 ONCJ 540. The court held that the mandatory minimum would not be grossly disproportionate for Mr. Dawson, who was not a young offender, and who the court emphasized had sought to exploit the financial vulnerability of an actual 17-year-old through actions that demonstrated planning and premeditation: at paras. 66-67. The court also declined to follow the Ontario precedents striking the mandatory minimum on the basis of reasonable hypotheticals because they pre-dated Friesen (and in some cases, dealt with the predecessor to s. 286.1(2) rather than s. 286.1(2) itself). In both C.M. and Dawson, doubt was expressed about the reasonableness of the hypotheticals used in the cases that struck down the mandatory minimum.
[113] Here, there is no need to consider whether the mandatory minimum fails on the basis of the reasonable hypotheticals put forward in prior cases (the parties did not argue any further hypotheticals). The unique circumstances of the offender before the court make the six-month mandatory minimum punishment grossly disproportionate for him.
[114] I have already determined the fit sentence for this appellant to be concurrent conditional sentences of nine months. I recognize that the standard for gross disproportionality is high. As explained in Hills, at paras. 114-15, a sentence may be unfit, or demonstrably unfit in the sense that appellate intervention would be warranted (but for the mandatory minimum), and yet not meet the constitutional threshold of grossly disproportionate. Therefore:
Courts “should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation” as s. 12 is intended to police the “outer limit” of sentencing.… It is only on “rare and unique occasions” that a sentence will infringe s. 12, as the test is “very properly stringent and demanding”. [Internal citations omitted.]
[115] The assessment of gross disproportionality must therefore consider the differences between the mandatory penalty of a six-month carceral sentence and the individually fit nine-month conditional sentence. This requires reference to (a) the scope and reach of the offence; (b) the effects of the penalty on the offender; and (c) the penalty, including the balance struck by its objectives: Hills, at para. 122.
[116] Regarding the scope of s. 286.1(2), it is clear that the provision captures a range of conduct as it prohibits both obtaining for consideration the sexual services of a person under 18 and communicating for the purpose of obtaining such services. As discussed above, while all of this conduct is undoubtedly serious because of the mens rea associated with both modes of liability, there will be a degree of variation in the offence’s gravity that will impact what constitutes a fit sentence: R. v. Alcorn, 2021 MBCA 101, 407 C.C.C. (3d) 395, at paras. 54-55, leave to appeal refused, [2022] S.C.C.A. No. 39.
[117] Similarly, as made clear in this case, s. 286.1(2) captures offenders who may be very close in age to the victim and therefore have diminished culpability. This court has repeatedly relied on reasonably foreseeable circumstances involving young offenders to invalidate mandatory minimums attached to similar sexual offences: see R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670, at paras. 38-40; R. v. B.J.T., 2019 ONCA 694, 378 C.C.C. (3d) 238, at paras. 72-75; R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at paras. 150-155; and R. v. Safieh, 2021 ONCA 643, 158 O.R. (3d) 224, at paras. 18-20. The very young age of the appellant, coupled with his other mitigating circumstances, distinguishes his culpability from mature offenders, such as the 55-year-old that the Court of Appeal of Quebec in C.M.concluded could be subject to the mandatory minimum under s. 286.1(2)(a) without infringing s. 12.
[118] When comparing the effects of the mandatory minimum on the appellant, I would note that the Supreme Court has already recognized that when a “conditional sentence would be fit but instead a custodial sentence is mandated … [t]he disparity … is more readily apparent because the comparison involves two different types of punishment and the effects are often more extreme”: Hills, at para. 48. This is particularly true in circumstances where, like here, the offender is very young and currently suffers from a physical disability: Hills, at paras. 135, 165. I discuss each factor in turn.
[119] With respect to the appellant’s youth, in Badali, Lalonde, C.D.R. and J.L.M., the reasonable hypotheticals relied on by the courts to invalidate the mandatory minimum all concerned youthful offenders. Without commenting on other aspects of those hypotheticals, the use of these examples is reflective of courts’ concerns about the potentially disproportionate nature of a carceral sentence where a youthful offender is concerned. This concern flows both from the lessened moral culpability that may exist in a youthful offender and the potentially harmful effects of prison on them. For youthful first-time offenders, the fit sentence is the shortest possible sentence proportionate to the offence: see R. v. Brown,2015 ONCA 361, 126 O.R. (3d) 797, at para.7; R. v. Laine,2015 ONCA 519, 338 O.A.C. 264, at para.85. In Hills, the Supreme Court noted that “incarceration is often not a setting where the reformative needs of young people are met”: at para. 165, citing Clayton C. Ruby, Sentencing, 10th ed. (Toronto: LexisNexis, 2020), at §5.191; see also Bertrand Marchand, applying this analysis in the context of a six-month mandatory minimum, at para. 152.
[120] In this case, the unchallenged expert opinion was that the appellant’s offence was “a product of [his] very poor judgment as an immature sheltered 19-year-old male with virtually no prior sexual experiences”.
[121] With respect to the appellant’s current physical disability, a custodial sentence of six months would impede his recovery from his recent surgery. While it is true that a sentence of six months’ imprisonment would be of a shorter duration compared to the nine-month conditional sentence, the effects of a sentence are “not measured in numbers alone”: Hills, at para. 136. An assessment of gross disproportionality is also qualitative and must meaningfully consider how the conditions of incarceration for six months will impact this offender in light of his individualized characteristics, including the absence of supports available while serving a custodial sentence as compared to a conditional sentence in the community: Hills, at para. 136.
[122] The appellant’s affidavit indicates that he has received medical advice that he requires at least twelve more months to fully recover from his surgery, and that this recovery involves physiotherapy, regular physical activities such as swimming three times per week, and other prescribed exercises. Sending this appellant to jail for six months would provide little societal benefit but would exact a severe cost on him and his family.
[123] Finally, a consideration of the penalty and the balance it strikes between sentencing objectives shows that, for this mandatory minimum as applied to this offender, little room is left to further restorative objectives like rehabilitation. As noted, separating the appellant from the community, for which he poses no risk, and placing him in a provincial facility, would only serve to further the objectives of denunciation and deterrence. While those objectives are no doubt critical in light of the appellant’s offences, the complete disregard for rehabilitation, in a case where such an objective is crucial, fortifies the conclusion that this penalty is grossly disproportionate: see Hills, at paras. 140-42.
[124] Accordingly, I find that s. 286.1(2)(a) is grossly disproportionate and infringes s. 12 of the Charter. Since the Crown did not advance any argument that the s. 12 infringement may be justified under s. 1, I need not address this issue.
Conclusion
[125] I would dismiss the appellant’s conviction appeal. I would admit the fresh evidence, grant leave to appeal sentence, and allow the sentence appeal. I would declare s. 286.1(2)(a) of the Code to be of no force or effect, pursuant to s. 52 of the Constitution Act, 1982. Concurrent conditional sentences of nine months are substituted for the concurrent seven-month jail sentences. In addition to the mandatory conditions set out in s. 742.3(1) of the Code, the sentences will include house arrest for the first half of the nine-month period.
[126] Since we did not receive submissions on the precise language or details of the proposed terms of the conditional sentences, counsel should confer and provide the court with an agreed form of order. If counsel are unable to agree, they should provide written outlines, not exceeding five pages, setting out the areas of, and reasons for, disagreement about the terms, within ten days of the release of these reasons. The court will then specify the precise terms. Until the sentence is finalized, the appellant shall remain on release in accordance with the terms of his bail pending appeal, as ordered on June 5, 2023.
Released: March 11, 2024 “B.Z.”
“B. Zarnett J.A.”
“I agree. Thorburn J.A.”
“I agree. J. George J.A.”
[^1]: The trial judge’s determination that s. 172.1(2)(a) infringed s. 12 and was of no force or effect is not in issue. This mandatory minimum, and its six-month counterpart under. s. 172.1(2)(b) for child luring offences prosecuted by way of summary conviction, were found by the Supreme Court of Canada to infringe the Charter in R. v. Bertrand Marchand, 2023 SCC 26, 487 D.L.R. (4th) 201.
[^2]: The appellant originally raised one further ground of appeal against his sentence in his factum: that the trial judge erred in refusing to stay the conviction under s. 286.1(2) pursuant to Kienapple. The appellant’s factum was written in April of 2021, years before the appeal was ultimately argued, and the appellant did not advance this ground of appeal during oral argument in light of R. v. Haniffa, 2021 ONCA 326, 155 O.R. (3d) 523, aff’d on other grounds 2022 SCC 46, 475 D.L.R. (4th) 496.
[^3]: In the transcripts, this witness’ last name is spelled “Yusef”, but in the decision below it is spelled “Yusaf”.
[^4]: I note that the sentencing outcome requested by defence counsel below – a conditional discharge – was also not available for the child luring count at the time (and still is not) given the 14-year maximum sentence, irrespective of the mandatory minimums: see s. 730 of the Criminal Code. There was some discussion about this at the sentencing hearing.