WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: 2021 10 20 Court File No.: City of Stratford 3211-998-19-1339-00
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
NICHOLAS DITORO
Before: Justice K. L. McKerlie Heard on: April 12 and July 7, 2021 Reasons released on: October 20, 2021
Counsel: Elizabeth Wilson ................................................................................ counsel for the Crown Erik Van Drunen .............................................. counsel for the accused Nicholas Ditoro
Charge
1The accused, Nicholas Ditoro is being sentenced today for the October 8, 2019 offence of luring a child, contrary to s. 172.1(1)(a) of the Criminal Code. The specific wording of the charge is that the Mr. Ditoro communicated by telecommunication with a person under the age of 18 years for the purpose of facilitating an offence under the child pornography provisions of s. 163.1 of the Criminal Code.
2The crown elected to proceed summarily. Accordingly, under s. 172.1(2)(b), the accused is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
Overview
3Mr. Ditoro entered a guilty plea on April 12, 2021. At his request, sentencing was adjourned for the preparation of a Pre-Sentence report and also adjourned for his counsel to serve a Notice of Constitutional Question and supporting Charter materials. The Notice is dated April 23, 2021. The Charter materials were filed on May 26, 2021. On July 7, 2021, counsel made their submissions on sentencing and the Charter application. With summer scheduling accommodations, this matter was adjourned to September 8, 2021 and subsequently to today’s date for reasons.
4As set out in the materials filed in support of the Charter application, the accused submits that the mandatory minimum 6-month sentence of imprisonment violates s. 12 of the Charter, which guarantees that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment”.
5Defence counsel submits the 6-month mandatory minimum is “grossly disproportionate” as it requires a period of incarceration without consideration of non-custodial sentencing options and without consideration of a conditional sentence of imprisonment. It restricts the discretion of the sentencing judge to impose a fit sentence in accordance with the principles of sentencing. Defence counsel submits that the appropriate sentence for Mr. Ditoro is a suspended sentence with a period of probation. In the alternative, he submits that if a period of imprisonment is required, it ought to be served in the community under a conditional sentence of imprisonment.
6The crown submits that having regard to the Supreme Court of Canada’s direction in R. v. Friesen, 2020 SCC 9, the 6-month mandatory minimum sentence for the offence of child luring is not “so excessive as to outrage standards of decency”. The crown submits:
Though harsh and arguably excessive in [Mr. Ditoro’s] case and in the case of some reasonable hypotheticals, [the 6-month mandatory minimum] is not so “grossly disproportionate” as to offend s. 12 of the Charter.
Simply put, any adult, including [Mr. Ditoro], who knowingly communicates with a young person online with a view to obtaining sexual gratification merits a sentence of imprisonment calculated by months, not weeks.
7The crown is not advancing an argument under s. 1 of the Charter.
Legal Framework
8I will first outline the legal framework for the Charter analysis, the legal landscape respecting mandatory minimums for child luring and then turn to the circumstances of this offence and the background and personal circumstances of Mr. Ditoro.
9At the outset, I thank each counsel for their well-prepared factum and book of authorities, as well as their helpful oral submissions.
10In R. v. Nur, 2015 SCC 15 at paras. 38-46, the Supreme Court of Canada outlined the two-step test for infringement of s. 12 of the Charter:
46To recap, a challenge to a mandatory minimum sentencing provision on the ground it constitutes cruel and unusual punishment under s. 12 of the Charter involves two steps. First , the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code . Then, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit and proportionate sentence. If the answer is yes, the mandatory minimum provision is inconsistent with s. 12 and will fall unless justified under s. 1 of the Charter .
11At paras. 47-77, the Supreme Court of Canada specifically addressed the issue of “whose situation is considered in the s. 12 analysis”, succinctly summarized as follows:
77In summary, when a mandatory minimum sentencing provision is challenged, two questions arise. The first is whether the provision results in a grossly disproportionate sentence on the individual before the court. If the answer is no, the second question is whether the provision’s reasonably foreseeable applications will impose grossly disproportionate sentences on others.
12As to the assessment of “reasonably foreseeable applications”, the Court provided this guidance at para. 76:
The inquiry into reasonably foreseeable situations the law may capture may take into account personal characteristics relevant to people who may be caught by the mandatory minimum, but must avoid characteristics that would produce remote or far-fetched examples.
13For decades, the Supreme Court of Canada has emphasized that s. 12 of the Charter is “aimed at punishments that are more than merely excessive” and cautioned that courts “should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation”. The Supreme Court of Canada has set a “high bar” for what constitutes cruel and unusual punishment under s. 12. To be grossly disproportionate, a sentence must be “so excessive as to outrage standards of decency” and be “abhorrent or intolerable” to society: R. v. Smith, [1987] 1 S.C.R. 1045, at paras. 86-88; R. v. Nur, at para. 39; and R. v. Lloyd, 2016 SCC 13 at para. 24; R. v. Morrison, 2019 SCC 15 at para. 143.
14In Lloyd, the Supreme Court also recognized that the wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate.
15I now turn specifically to the offence of child luring under section 172.1(2)(b) where the crown elects to proceed by summary conviction.
16In R. v. H.O., 2020 ONCJ 69 at para. 8, Javed J. provides a very helpful and succinct summary of the “legal landscape” as of January 17, 2020 for various mandatory minimums, including child luring. The following is an extract from that summary:
The child luring offence … can be charged in three different ways depending on the age of the victim. … Section 172.1(2)(b) is the sentencing provision for all three offences where the Crown proceeds by summary conviction. In all cases, there is a 6 month [mandatory minimum]. In R. v. Cowell, 2019 ONCA 972, the Ontario Court of Appeal considered the constitutionality of s.172.1(2)(a) of the Criminal Code which involves the 12 month [mandatory minimum] for the child luring offence where the Crown proceeds by indictment … In a split decision, the majority of the court upheld the mandatory minimum. … Cowell is persuasive authority but is not binding because it did not address the 6 month [mandatory minimum] where the Crown proceeds by summary conviction. [On May 28, 2020, the application for leave to appeal R. v. Cowell was dismissed by the SCC].
Further, in R. v. King, 2019 ONCJ No. 366, the court found the 6 month [mandatory minimum] violated s.12 of the Charter and imposed a 1 year [conditional sentence of imprisonment] followed by 3 years probation. In R. v. Randall, 2018 ONCJ No. 470, the court reached a similar result, imposing a sentence of 90 days imprisonment. Moreover, in R. v. Fawcett, 2019 BCPC 125, the court found the [mandatory minimum] to be unconstitutional and imposed a 6 month [conditional sentence of imprisonment] followed by two years probation. In summary, the 6 month mandatory minimum … has not been dealt with by an appellate court which is binding on me. In R. v. Morrison, 2019 SCC 15, the Supreme Court chose not to rule on the constitutionality of the 12 month [mandatory minimum] where the Crown proceeds by indictment but offered guidance to trial judges on how to approach the constitutionality of the provision, albeit in the context of the indictable, 12 month [mandatory minimum].
17In R. v. H.O., Javed J. imposed a sentence of 8-months imprisonment for the summary conviction offence of child luring. The Court accepted the crown’s position that the second step in Nur was moot.
18In addition to the decisions outlined in H.O., I have taken into account the cases filed by counsel in their books of authorities, including the earlier decision of R. v. S.S., 2014 ONCJ 184, which addressed the then 90-day mandatory minimum and the more recent decision in R. v. C.D.R., 2020 ONSC 645, released a month after H.O., which addressed the 1-year mandatory minimum for child luring where the crown proceeds by indictment.
19In C.D.R., the sentencing judge was “troubled by the discrepancy” between the 1-year minimum as compared to the 6-month minimum when the crown elects to proceed summarily. The Court concluded at para. 38, “Given that 6-month sentences are routinely being imposed for the exact same conduct, I am satisfied that a mandatory minimum of 1-year is grossly disproportionate”.
20In R. v. Cowell, 2019 ONCA 972 (leave to appeal dismissed by the SCC), Benotto J. A. writing for majority discussed whether the 1-year mandatory minimum was grossly disproportionate based on its application to reasonably foreseeable circumstances but ultimately dismissed the appeal noting that the Court should have the benefit of reasonable hypotheticals fully argued in order to decide the constitutionality of s. 172.1(2)(a).
21The majority decision in Cowell addressed the recent guidance given by the Supreme Court of Canada in R. v. Morrison, 2019 SCC 15. The following principles emerge from the two decisions:
Morrison clarified the mens rea for the child luring offence under s. 172.1. Consequently, the range of potential conduct has been significantly narrowed. The Crown must prove beyond a reasonable doubt that the offender intentionally communicated with a person who is or is believed to be underage. The offender must also have the specific intent to facilitate one of the listed offences. The “wide net” of the offence has been greatly narrowed to catch only these offenders: Morrison, at para. 153; Cowell, at para. 118.
In determining whether a provision contravenes s. 12 of the Charter, the purpose of the legislation must be considered. The social reality is that “access to the Internet among Canadian children is now almost universal” and “predators lurking in cyberspace, cloaked with anonymity” are able to meet, groom, and sexually exploit vulnerable children through telecommunication: Morrison, at para. 2. Children are defenceless to the sexual exploitation of adult predators, who are only one click away: R. v. Woodward, 2011 ONCA 610, at para. 72; Cowell, at para. 120.
Parliament enacted Criminal Code provisions to ensure that predators who lure children through telecommunication receive “a punishment that reflects the gravity and seriousness of the offence”: Morrison, at paras. 2-3. Luring attracts a high degree of moral blameworthiness, especially since its victims are “one of the most vulnerable groups within Canadian society—our children”: Morrison, at para. 153. I do not agree that a one-year minimum sentence would outrage the moral standards of Canadians. … the one-year minimum sentence does not meet the standard of gross disproportionality: Cowell, paras. 121-122.
22Although declining to rule on the constitutionality of the 1-year mandatory minimum, Moldaver J. offered the following observations in Morrison:
On the one hand, several features of s. 172.1 suggest that the 1-year mandatory minimum is, at the very least, constitutionally suspect given that the provision “casts its net over a wide range of potential conduct” and the resulting range of reasonably foreseeable applications. Section 172.1’s scope encompasses situations potentially ranging from a single text message sent by a 21-year-old adult to a 15-year-old adolescent, to those involving numerous conversations taking place over weeks or months between a middle-aged mature adult and a 13-year old child. It also criminalizes communications sent for the purpose of facilitating a wide array of designated secondary offences: paras. 146-147.
On the other hand, the following considerations may militate in favour of finding that the one-year mandatory minimum does not infringe s. 12. It may well be that a one-year sentence for offenders in reasonably foreseeable scenarios would not be “so excessive as to outrage standards of decency” or “abhorrent or intolerable” to society. Child luring is a serious offence that targets one of the most vulnerable groups within Canadian society—our children. It requires a high level of mens rea and involves a high degree of moral blameworthiness. It is at least arguable that a mandatory minimum sentence of one year’s imprisonment is not grossly disproportionate in its reasonably foreseeable applications: para. 153.
Determining What Constitutes a Proportionate Sentence for Child Luring
23In determining what constitutes a proportionate sentence for the offence of child luring where the crown proceeds summarily, I take into account the objectives and principles of sentencing set out in the Criminal Code and the direction provided by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9.
24In the recent decision of R. v. T.J. 2021 ONCA 392, the Ontario Court of Appeal re-iterated the Supreme Court of Canada’s “strong message” in Friesen that “courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children”. The Court of Appeal highlighted three parts of the Friesen message:
- The importance of properly considering the wrongfulness and harmfulness of sexual offences against children in determining a proportionate sentence;
- The priority given by Parliament to the sentencing objectives of denunciation and deterrence for these offences; and
- The guidance given on the length of sentences for these offences.
25The Court of Appeal summarized the applicable sentencing principles as follows:
19A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender—this is the fundamental principle of sentencing. As Friesen explains, the wrongfulness and harmfulness of sexual offences against children are pivotal to both aspects of the assessment of proportionality: Friesen at para.75.
20When considering the gravity of the offence, “courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences”: Friesen, at para. 76.
24…The fact that the victim is a child increases the offender’s degree of responsibility … the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable: Friesen, at para. 90.
28As the court in Friesen concluded, prioritizing the objectives of denunciation and deterrence “confirms the need for courts to impose more severe sanctions for sexual offences against children”: at para. 101. That need is directly related to the form of sanction required, as separation from society reinforces and gives practical effect to denunciation and deterrence: Friesen at para. 103
29To ensure that effect is given to the wrongfulness and harmfulness of sexual offences against children and Parliament’s sentencing initiatives, Friesen provided guidance about the appropriate length of sentences. To follow that guidance, upward departure from prior precedents and sentencing ranges may be required: Friesen at paras. 108-14.
26In T.J., the Court of Appeal emphasized that “where the overall focus of a sentencing decision is on the personal circumstances of the offender and the need for restraint, so as to underestimate the gravity of the offences and their harm, the sentencing decision is not consonant with Friesen’s message: at para. 33.
27The Court of Appeal also reminded sentencing judges that:
Friesen does not simply contain a list of the principles and factors to be mentioned in a sentencing decision; it insists that those factors be reflected in a sentence that is of sufficient length to recognize them: at para. 39.
28I next turn to the specific guidance provided in R. v. Friesen, 2020 SCC 9, the unanimous decision of the Supreme Court of Canada “about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children”. The Supreme Court explicitly emphasized its determination to ensure that sentences for sexual offences against children correspond to Parliament’s legislative initiatives and the contemporary understanding of the profound harm to children: paras. 1 and 107.
29Although the Friesen appeal involved a sentence imposed for the offence of sexual interference, the Supreme Court expressly extended its guidance to include other sexual offences against children and specifically referenced the offence of child luring. The Court directly addressed the prevalence and role of technology and highlighted the following:
In Canada, both the overall number of police-reported sexual violations against children and police-reported child luring incidents more than doubled between 2010 and 2017: at para. 46.
New technologies have enabled new forms of sexual violence against children and provided sexual offenders with new ways to access children. Social media provides sexual offenders “unprecedented access” to potential child victims. The Internet directly connects sexual offenders with child victims. Online child luring can be both a prelude to sexual assault and a way to induce or threaten children to perform sexual acts on camera. The Internet has also accelerated the proliferation of child pornography: at para. 47
Both Parliament and the courts have begun to respond to the prevalence of, new forms of, and qualitative changes in sexual violence against children. Parliament has attempted to keep pace with these developments by amending sentencing provisions for sexual offences against children. Courts too have been on a “learning curve”: at para. 49.
Sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause. Getting the wrongfulness and harmfulness right is important. Failure to recognize or appreciate the interests that the legislative scheme of offences protects can result in unreasonable underestimations of the gravity of the offence. … Properly understanding the harmfulness will help bring sentencing law into line with society’s contemporary understanding of the nature and gravity of sexual violence against children and will ensure that past biases and myths do not filter into the sentencing process: at para. 50.
The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children. Personal autonomy refers to a child’s right to develop to adulthood free from sexual interference and exploitation by adults: at paras. 51-52.
The protection of children is one of the most fundamental values of Canadian society. In reforming the legislative scheme governing sexual offences against children, Parliament recognized that children, like adults, deserve to be treated with equal respect and dignity. Offenders treat children as sexual objects whose vulnerability can be exploited: at para. 65.
Courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. … The wrongfulness and harmfulness impact both the gravity of the offence and the degree of responsibility of the offender. Courts must impose sentences that are commensurate with the gravity of sexual offences against children. Sexual offences against children are inherently wrongful and always put children at risk of serious harm, even as the degree of wrongfulness, the extent to which potential harm materializes, and actual harm vary from case to case: at paras. 75-76.
The potential for harm is always present whenever there is physical interference of a sexual nature with a child and can be present even in sexual offences against children that do not require or involve physical interference. These forms of potential harm illustrate the seriousness of the offence even absent proof that they have materialized into actual harm: at para. 79.
Even in child luring cases where all interactions occur online, the offender’s conduct can constitute a form of psychological sexual violence that has the potential to cause serious harm: at para 82.
Even if an offender commits a crime that fortunately results in no actual harm, courts must consider the potential for reasonably foreseeable harm when imposing sentence: at para 84.
The intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable. The use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions. Offenders recognize children's particular vulnerability and intentionally exploit it to achieve their selfish desires. These comments should not be taken as a direction to disregard relevant factors that may reduce the offender’s moral culpability. The proportionality principle requires that the punishment imposed be “just and appropriate …, and nothing more”. Given the wide spectrum of conduct, the offender's conduct will be less morally blameworthy in some cases than in others. Personal circumstances of offenders can have a mitigating effect: at paras. 90-91.
Child luring may be committed in two ways: the offender is actually communicating with an underage person, or the offender believes the person he is communicating with is under-age even though this is not in fact the case. Although the absence of a specific victim is relevant, it should not be overemphasized in arriving at a fit sentence. The offender can take no credit for this factor: at para. 93.
With the advent of social media, sexual offenders have been given unprecedented access to potential victims and avenues to facilitate sexual offending, especially through child luring. Parliament designed the child luring offence to enable the police to use sting operations to close the cyberspace door by apprehending offenders before they can successfully target and harm children. Children cannot be expected to police the Internet and courts should bear this in mind when sentencing offenders who have been outed by police undercover operations. Child luring should never be viewed as a victimless crime: at para. 94.
30The appendix in Friesen sets out the 2015 increased maximum sentences for sexual offences against children. The maximum sentence for luring a child increased from 18-months to two-years less a day on summary conviction and from 10-years to 14-years on indictment. The mandatory minimum on summary conviction increased from 90-days to 6-months.
31At paras. 96-100 of Friesen, the Supreme Court emphasized that the decision by Parliament to increase maximum sentences for sexual offences against children shows that Parliament wanted such offences to be punished more harshly. An increase in the maximum sentence should be understood as shifting the distribution of proportionate sentences for an offence. Since 1987, Parliament has repeatedly increased sentences for sexual offences against children. The successive increases in maximum sentences indicate Parliament’s determination that sexual offences against children are to be treated as more grave than they had been in the past. Parliament’s legislative initiatives thus give effect to society’s increased understanding of the gravity of sexual offences and their impact on children.
32The Supreme Court specifically reaffirmed that the legislative choice to increase the maximum sentence for child luring “must be understood as a sign of the gravity of this crime in the eyes of Parliament”. In the context of child luring, Parliament’s view of the increased gravity of the offence as reflected in the increase in maximum sentences should be reflected in toughened sanctions. Sentencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences.
33At para. 114 of Friesen, the Supreme Court recognized that imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Parliament’s statutory amendments have strengthened that message. The Court noted that it is not the role of the Supreme Court of Canada to establish sentencing ranges and reiterated that judges must retain the flexibility needed to do justice in individual cases and to individualize the sentence to the offender before them.
34A mandatory minimum sentence obviously has the potential to significantly restrict that flexibility. As the Supreme Court observed in R. v. Nur:
Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of the range. They may, in extreme cases, impose unjust sentences because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing: at para. 44.
35As Moldaver J. expressed in Morrison, despite the variation in terms of the conduct and circumstances that may be caught by s. 172.1, Parliament has not included a “safety value” that would allow judges to exempt “outlier cases” where a significantly lower sentence might be appropriate.
36I am mindful that in Friesen, the Supreme Court of Canada was specifically addressing Parliament’s sentencing initiatives to increase the maximum sentences for sexual offences against children and to prioritize the sentencing objectives of denunciation and deterrence in s. 718.01 of the Criminal Code. The Court was not addressing mandatory minimum sentences. However, the guidance provided in Friesen is directly relevant to the determination of what constitutes a proportionate sentence for the offence of child luring having regard to the objectives and principles of sentencing in the Criminal Code.
37In R. v. Lloyd, 2016 SCC 13 at para. 23, the Supreme Court of Canada clarified that at the first step of determining what constitutes a proportionate sentence, the court need not fix the sentence or sentencing range at a specific point, but the court should consider the rough scale of the appropriate sentence.
38Section 718.1 of the Criminal Code provides that that fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
39To summarize, the mens rea for the offence of luring a child, as clarified in Morrison, is that the offender intentionally, by telecommunication, communicated with a person who is or is believed to be underage with the specific intent to facilitate one of the listed offences, including child pornography offences. An adult who lures a child for such purpose bears a high degree of responsibility and moral blameworthiness. Children are vulnerable to exploitation through telecommunication. The Internet and social media provide offenders with “unprecedented access” to potential child victims. Luring specifically targets children. The intentional exploitation and objectification of children is highly morally blameworthy because children are so vulnerable. The protection of children is one of the most fundamental values in Canadian society.
40Given the nature of the offence and the applicable sentencing principles emphasized in Friesen, the “rough scale” of the appropriate sentence for the offence of luring a child is a sentence of imprisonment measured by months, not weeks.
Does the mandatory minimum require imposition of a sentence that is “grossly disproportionate” to the fit and proportionate sentence?
41I now consider whether the 6-month mandatory minimum is grossly disproportionate to a fit and proportionate sentence for the offender before the court and also whether reasonably foreseeable applications of s. 172.1(2)(b) would impose grossly disproportionate sentences on others.
42I recognize that these are two different questions to be addressed in the Nur analysis. In this particular case, the circumstances of the offence and Mr. Ditoro’s personal circumstances are not functionally different from the range of reasonably foreseeable applications addressed in counsel’s submissions. As Moldaver J. expressed in Morrison, section 172.1’s scope encompasses situations potentially ranging from a single text message sent by a 21-year-old adult to a 15-year old adolescent, to those involving numerous conversations taking place over months between a mature adult and a younger child.
43At the outset, I emphasize that Mr. Ditoro’s decision to enter a guilty plea to the offence is a strong mitigating factor for sentencing and a factor that must be given significant weight.
44The facts supporting Mr. Ditoro’s plea of guilt are as follows. At the time of committing the offence in October 2019, Mr. Ditoro was 18-years old. He committed the offence approximately 1 month before his 19th birthday. The victim of the offence was a 14-year-old boy.
45The victim’s father contacted the police to report Mr. Ditoro’s electronic communications with his 14-year-old son. The victim’s father had installed an application on his son’s phone which monitored the device for key words, maintained a log of activity on the device and sent alerts to him of instances of the key words. The victim’s father provided the log to the police.
46The victim informed police that he knew Mr. Ditoro and met him 4-years earlier at a church camp. On October 1, 2019, the victim received an Instagram notification from a profile he learned was for Mr. Ditoro. The victim and Mr. Ditoro began communicating, sending messages back and forth on Instagram. Mr. Ditoro then added the victim as a “friend” on Snapchat. During their communications over social media, the victim viewed multiple photographs of Mr. Ditoro.
47From October 1 to October 7, 2019, Mr. Ditoro befriended the victim and sent him Snapchat notifications every day. On October 3rd, Mr. Ditoro asked the victim about the size of the victim’s penis. During an October 7th Snapchat “conversation”, Mr. Ditoro pretended to hand his phone to a female friend, “Chloe”. Posing as Chloe, Mr. Ditoro continued the conversation with the victim and asked the victim to send a photograph of his penis. Mr. Ditoro, continuing to pose as Chloe, was persistent in the requests that the victim send a photograph of his penis. The victim told “Chloe” that he was only 14-years old and to leave him alone.
48The next morning, on October 8th, the victim told Mr. Ditoro on Snapchat that Chloe made him feel uncomfortable. His message stated: I’m only 14 and she should not be trying to get nudes from kids that are much younger”. During this Snapchat conversation, Mr. Ditoro directly, i.e. no longer posing as Chloe, asked the victim to provide a “dick pic”. Mr. Ditoro was persistent in requesting that the victim provide a photograph of his penis and tried to induce him by saying that “Chloe” would send him something in return.
49The victim resisted Mr. Ditoro’s persistent requests and did not send any photographs. Mr. Ditoro can take no credit for that factor, particularly when he targeted a specific victim, known to him and exploited that prior connection.
50The offence was reported to the police. Mr. Ditoro made an inculpatory statement and also admitted that he posed as “Chloe”. Mr. Ditoro’s early cooperation in the police investigation and his decision to enter a guilty plea are strong mitigating factors for sentencing.
51I take into account Mr. Ditoro’s personal background and circumstances as set out in the Pre-Sentence Report, the defence materials filed on sentencing and defence counsel’s sentencing submissions.
52Mr. Ditoro is now 20-years old and will turn 21 next month. He had a very difficult upbringing with little support from his emotionally abusive father, who spent time in jail and abused drugs with his partners. His grandmother was a positive influence in his life until her death when he was a teenager.
53The Pre-Sentence Report indicates that Mr. Ditoro reported his father’s involvement in the criminal justice system included sexual offending against multiple minors. Mr. Ditoro reports that he was not sexually abused by his father, but his father’s offending impacted his life in a negative way, and he was disparagingly called the “pedophile’s son” at school. Mr. Ditoro reported that at the age of 7 or 8, he was sexually abused by his stepbrother, who was around 10 or 11-years old at the time. He speculated that his stepbrother had been sexually victimized.
54Mr. Ditoro reported that he has been living with friends since January 2019 and there are no children in the home. He is single and has no dependants. His last relationship was in 2017 or 2018 and lasted for about a week. Mr. Ditoro reported that he had a difficult time in school and was the subject of bullying. He has also experienced homelessness.
55Mr. Ditoro has work experience in a factory and is currently working at a fast-food restaurant. Mr. Ditoro volunteered with a local Christian youth group from the age of 14 to 18 years, but not since being charged with this offence given his current release conditions.
56Mr. Ditoro was candid with the writer of the Pre-Sentence Report. He acknowledged that he knew the 14-year-old victim and met him at camp. He stated he was trying to get “dick pics” from the victim because he found the victim to be attractive. He described “cat fishing” the victim by pretending to be a girl. As to why he committed the office, Mr. Ditoro stated “horniness” and “now looking back, stupidity”.
57Mr. Ditoro reported that he has been hospitalized for panic attacks and an eating disorder and has been diagnosed with depression and anxiety. He reported that he attempted suicide at age 16 and again at age 18.
58Mr. Ditoro reported that he has made a “mental pact” to not talk to any underaged persons. He is prepared to attend counselling to address his offending behaviour. As reflected in the Pre-Sentence Report and a letter from the John Howard Society dated June 24, 2021, Mr. Ditoro has been engaged with counselling at the Society since April 2020 and has attended more than 22 individual counselling sessions. He is described as consistently engaged and highly motivated to address the risk factors that led to his involvement in the criminal justice system. Mr. Ditoro has reported to the John Howard Society Bail Supervision program as required since February 2020 and is described as pleasant and cooperative.
59In summary, Mr. Ditoro is a youthful first offender, who has taken proactive steps toward rehabilitation while on bail release and has good prospects for rehabilitation. He is remorseful. His guilty plea is a strong mitigating factor for sentencing and his personal circumstances are also strongly mitigating.
60In addition to taking into account Mr. Ditoro’s mitigating personal circumstances and the principle for restraint in sentencing a youthful, first time offender with good prospects for rehabilitation, the proportionate sentence must also take into account the gravity of the offence and Mr. Ditoro’s high degree of responsibility and moral blameworthiness for his intentional decision to engage in luring a 14-year-old child in pursuit of his own sexual gratification. A fit and proportionate sentence must strongly denounce and deter the intentional decision to lure a child for this purpose. The intentional exploitation and objectification of children is highly morally blameworthy. The protection of children from such exploitation and objectification is one of the most fundamental values in Canadian society
61Given the mens rea required for the offence of child luring, a sentence of incarceration measured by months is required for even a youthful, first time offender with the mitigating personal circumstances and characteristics of Mr. Ditoro. To be clear, a suspended sentence with a period of probation, a sentence in the intermittent range or even a lengthy conditional sentence of imprisonment served in the community would not be proportionate to the gravity of this offence and the high degree of responsibility and moral blameworthiness of an adult offender who intentionally lures a child for the purpose of facilitating the offences listed in s. 172.1. A lengthy conditional sentence of imprisonment, even with strict terms of house arrest, would be fundamentally inconsistent with the purpose, objectives and principles of sentencing in the Criminal Code as reinforced by the clear direction provided by the Supreme Court of Canada and the Ontario Court of Appeal. A sentence of institutional incarceration is required—measured by months and beyond the range that can be served intermittently.
62The 6-month mandatory minimum sentence for Mr. Ditoro, a youthful first-time offender with good prospects for rehabilitation, who accepted responsibility for the offence by pleading guilty, is a harsh sentence but it is not a “grossly disproportionate” sentence. The 6-month mandatory minimum is not “so excessive as to outrage standards of decency”, nor is it “abhorrent or intolerable” to society.
63Parliament enacted Criminal Code provisions to ensure that predators who lure children through telecommunication receive a punishment that reflects the gravity and seriousness of the offence. In Friesen, the Supreme Court of Canada delivered a strong and unanimous message to lower courts and to society. It emphasized that “protection of children is one of the most fundamental values of Canadian society”. The Court reiterated that Canadian criminal law is a “system of values” and a sentence that expresses denunciation thus condemns the offender “for encroaching on our society’s basic code of values” and “instills the basic set of communal values shared by all Canadians”: at para. 105.
64In Friesen, the Supreme Court expressly extended its strong message to include the offence of child luring and emphasized that sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause. The Court emphasized that “the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions”. The Court cautioned against disproportionately low sentences being imposed in cases were the victim is an adolescent. The Court also made the point that even in the case of an offender outed by a police undercover operation, child luring should never be viewed as a victimless crime: at paras. 90, 94, 136.
65I next turn to the second stage of the Nur analysis. As noted earlier, Mr. Ditoro’s mitigating personal circumstances and the circumstances of this offence are not functionally different from the lower range of reasonably foreseeable applications addressed in the submissions of counsel. Section 172.1’s scope encompasses situations potentially ranging from a single telecommunication by a young adult to a “close in age” teenager to protracted communications between a mature adult and a young child.
66As emphasized by the Ontario Court of Appeal in Cowell, in any child luring scenario, the offender will have intentionally communicated with a person who is or is believed to be underage. The offender will also have the specific intent to facilitate one of the listed offences.
67As highlighted in Friesen, child luring may be committed by an offender who believes the person he is communicating with is under-age even though this is not in fact the case. The Supreme Court noted that the absence of a specific victim is relevant but should not be overemphasized in arriving at a fit and proportionate sentence. The Court emphasized that child luring should never be viewed as a “victimless crime”. In assessing “reasonably foreseeable scenarios”, I have considered not only scenarios involving the luring of an actual child, but also offenders “outed by police undercover operations”.
68Given the strong and unanimous message sent by the Supreme Court in Friesen, the 6-month mandatory minimum sentence for a single message sent by a young adult to a “close in age” victim, might well be harsh, but it would not be grossly disproportionate. It might be excessive, but not “so excessive as to outrage standards of decency”, nor would it be “abhorrent or intolerable” to society’s current understanding of the prevalence of child luring, the wrongfulness and harmfulness of such conduct and the direction that child luring should never be viewed as a “victimless crime”.
Conclusion and Sentence Imposed
69In conclusion, the s. 12 Charter application is dismissed. Mr. Ditoro is subject to the minimum punishment of imprisonment for a term of 6-months, pursuant to s. 172.1(2)(b) of the Criminal Code. The crown seeks the imposition of the mandatory minimum sentence. I am satisfied that the mandatory minimum sentence is appropriate in the circumstances of this offence and this offender.
70Mr. Ditoro was arrested for this offence on February 10, 2020. He was granted bail on February 11, 2020. Mr. Ditoro has been subject to bail conditions for 20 months, including requirements to participate in the John Howard Society Bail Supervision Program, not to use the internet or other digital network except for work or school, not to be in the company of persons under the age of 15-years and not to attend a number of locations in the community.
71The bail conditions impacted Mr. Ditoro’s employment for a number of months. Although Mr. Ditoro was not subject to house arrest, the bail conditions were restrictive for a first-time offender. I note that Mr. Ditoro complied with the bail conditions and was described in positive terms by both the bail program supervisor and his counsellor at the John Howard Society.
72One reason Mr. Ditoro has been subject to bail conditions for 20 months is the Covid-19 pandemic. Mr. Ditoro’s first court appearance following his release from custody coincided with the start of the Covid-19 pandemic, specifically the period during which cases were presumptively adjourned. In addition, Covid-19 scheduling considerations impacted the post-plea scheduling, including the delivery of these reasons for sentence.
73In R. v. Downes, [2006] O. J. No. 555 (C.A.), the Ontario Court of Appeal held that:
33…Time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. However, like any potential mitigating circumstance, there will be variations in its potential impact on the sentence and the circumstances may dictate that little or no credit should be given for pre-sentence house arrest. …
34… It is inappropriate to adopt a rigid formula because there can be such a wide variation in bail conditions and even house arrest conditions. In some cases, the terms of the house arrest may impinge very little on the offender's liberty. Some accused may be allowed to work as usual, take care of their family obligations as usual and in general, see little serious impact on their pre-bail way of life. For others, house arrest may be very difficult.
74More recently, in R. v. C.C., 2021 ONCA 600, the Court of Appeal summarized the principles approved in Downes and emphasized that pre-trial bail is conceptually a mitigating factor in assessing a fit sentence. The Court noted:
5Some judges choose to achieve that mitigation by granting a “ Downes credit” that is set off against the sentence that would otherwise have been imposed. Other judges choose to factor the punitive impact that bail conditions have had on the offender into their overall determination of a fit sentence. Neither approach is in error.
75Mr. Ditoro’s bail conditions were not overly punitive, but I take into account that he was bound by those bail conditions for a lengthy period of time as a result of circumstances created by the Covid-19 pandemic. I also take into account that the bail conditions impacted his employment for a number of months and restricted his liberty in the community, particularly as a first-time offender. The restrictions on his use of the Internet were more stringent than the jointly proposed wording of a similar restriction in the probation order.
76Recognizing that the mandatory minimum sentence is acknowledged by the crown and the court as harsh but not grossly disproportionate, I am satisfied that a “ Downes credit ” to be set off against the mandatory minimum sentence is the appropriate way to conceptually address the mitigating factor of the time spent under restrictive bail conditions. I also credit Mr. Ditoro with the two days he spent in presentence custody, which is the equivalent of 3 days.
77Accordingly, 80 days will be credited to represent the total of the presentence custody and the “ Downes Credit”. The 80-day combined credit is set off against the 6-month (180 day) mandatory minimum sentence of imprisonment, leaving a sentence yet to be served of 100 days. Any further credit would not result in a fit or proportionate sentence having regard to the gravity of the offence, the circumstances of the offence, and the degree of responsibility and moral blameworthiness of Mr. Ditoro.
78Mr. Ditoro, I sentence you to the 6-month mandatory minimum term of imprisonment, with a credit of 80 days set off against that sentence, leaving 100 days to be served commencing on today’s date.
79The sentence of imprisonment will be followed by a period of probation of 18 months. The terms of the probation order are as follows:
- Keep the peace and be of good behaviour.
- Appear before the court when required to do so by the court.
- Notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change in employment or occupation.
- Report in person to a probation officer within 2 working days of your release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.
- Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer on request
- Live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance.
- Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with [“D. V.”] or any member of his immediate family.
- Do not be within 100 metres of any place where you know [“D. V.”] to live, work, go to school, frequent or any place you know him to be.
- Do not be in the company of, or communicate, directly or indirectly, by any physical, electronic or other means, with a person under the age of 15 years UNLESS that person under the age of 15 years is in the presence of a responsible adult, EXCEPT as may be required for the purposes of your work while you are at your workplace.
- Do not access, use or participate in any online social media, social network or social networking application for any reason whatsoever including, but not limited to, Snapchat, Facebook, Instagram, Twitter, Pinterest or any similar social media, social network or social networking application.
- Do not seek, obtain, or continue with any paid or unpaid activity that involves being in a position of trust or authority towards persons under the age of 15 years.
- Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for all issues including, but not limited to:
- sexual offending and offence-specific conduct;
- victimization and trauma; and
- depression and anxiety.
- You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
- You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
80Mr. Ditoro, I also make the following ancillary orders:
- a Primary DNA Order;
- An order to comply with the Sex Offender Information Registration Act (SOIRA) for a period of 10 years; and
- A Victim Surcharge of $100 required to be paid within 6 months.
Released: October 20, 2021 Signed: Justice K.L. McKerlie
