Court and Parties

Court of Appeal for Ontario Date: 2021-05-17 Docket: C64988

Before: Juriansz, Tulloch and Paciocco JJ.A.

Between: Her Majesty the Queen, Respondent And: Erhard Haniffa, Appellant

Counsel: Boris Bytensky, for the appellant Tracy Kozlowski, Katie Doherty and Lisa Fineberg, for the respondent

Heard: January 12-13, 2021 by videoconference

On appeal from: The convictions entered by Justice Joseph F. Kenkel of the Ontario Court of Justice on June 13, 2017, with reasons reported at 2017 ONCJ 525, and the ruling on multiple convictions dated October 2, 2017, and the ruling on entrapment dated November 8, 2017, with reasons reported at 2017 ONCJ 780, and the rulings on s. 11(b) dated November 8, 2017 and September 4, 2018, with reasons reported at 2017 ONCJ 781 and 2018 ONCJ 615, and the sentence imposed on October 29, 2018, with reasons reported at 2018 ONCJ 960.

Juriansz J.A.:

[1] This appeal was argued together with two other defence appeals, R. v. Jaffer and R. v. Dare, and a Crown appeal, R. v. Ramelson. All the appeals arose out of arrests and prosecutions pursuant to Project Raphael of the York Regional Police (“YRP”). Project Raphael was an undercover YRP investigation that began in 2014 with the objective of reducing the demand for sexual services from juveniles in the region by targeting the “buyer side”.

[2] As part of the investigation, the police posted fake advertisements in the “escorts” section of the online classified advertising website Backpage. When persons responded to the ads, an undercover officer posing as the escort would disclose in the ensuing text chat that “she” was underage. Individuals who continued the chat and arranged sexual services and a price were directed to a hotel room to complete the transaction and were arrested and charged on their arrival.

[3] The common issue in the four appeals is whether the individuals who were arrested and prosecuted pursuant to Project Raphael were entrapped by the police. The appellant also appeals his convictions, the dismissals of his s. 11(b) applications, the trial judge’s refusal to stay the third count with which he was charged on the Kienapple principle, and his sentence.

[4] For the reasons that follow, I would dismiss the appeal of all the appellant’s post-trial applications. I would allow the sentence appeal.

A. THE FACTS IN THIS CASE

[5] In this case, the ad the police placed on the escorts section of Backpage purported to have been placed by “Jamie”. Jamie described herself as “YOUNG shy FRESH and NEW”. The ad included photographs of a female police officer, whose face was not shown, posing as Jamie. The ad indicated Jamie was 18 years old, the minimum age allowed by Backpage.

[6] On March 22, 2016, the appellant texted Jamie and asked if she was working. The undercover officer, Truong, responded and after exchanging a number of preliminary messages, texted “r u okay if im not quite 18 yet?”. The appellant asked, “Is this like a cop thing or something?” and then asked Jamie how old she was. Truong responded, “I’m 15 to be hones but i look older hun”. The appellant was wary and said in several texts “Not getting a good feeling about this”, “No r u [a cop]”, and “Don’t even know if I am talking to the person I am seeing [in the ad]”. Truong sent additional texts referring to Jamie’s age as 15. Despite his skepticism, the appellant continued the text chat and eventually proceeded to the hotel to meet Jamie for the sexual services negotiated in the text chat.

[7] When the appellant arrived at the room, he was arrested and charged with the following three counts:

Count 1: Communicating via telecommunication with a person he believed to be under the age of 18 years for the purpose of facilitating an offence under s. 286.1(2) (obtaining sexual services from a minor) contrary to s. 172.1(2) (child luring under 18).

Count 2: Communicating via telecommunication with a person he believed to be under the age of 16 years for the purpose of facilitating an offence under s. 152 (invitation to sexual touching) contrary to s. 172.1(2) (child luring under 16).

Count 3: Communicating for the purpose of obtaining for consideration the sexual services of a person under the age of 18 years contrary to s. 286.1(2) (communicating to obtain sexual services from a minor).

[8] While the information references s. 171.1(2), counts 1 and 2 relate to the offences under ss. 172.1(1)(a) (child luring under 18) and 172.1(1)(b) (child luring under 16). Section 172.1(2) sets out the punishment for these offences.

[9] The appellant’s defence at trial was that he did not believe the person with whom he was communicating was younger than 18. He said he did not believe he was even speaking to a woman based on the speech patterns used in the messages. He said he thought he was speaking either to a police officer or a pimp trying to set him up for extortion. The appellant testified that because of his experience as a child victim of a serious sexual assault he would never want to have sex with a minor.

[10] The trial judge found the appellant guilty on all three counts.

[11] On October 2, 2017 the judge ruled on whether some of the convictions should be stayed according to Kienapple v. R., [1975] 1 S.C.R. 729. The Crown agreed that one of the two counts under s. 172.1 should be stayed. The appellant submitted that, in addition, count 2 (child luring under 16) and count 3 (communicating to obtain sexual services from a minor) contained substantially the same elements and that one of those convictions should also be stayed. The judge entered a stay only on count 1 (child luring under 18).

[12] The appellant also applied for a stay of proceedings on the basis he had been entrapped. The application was denied.

[13] The appellant also brought two applications for a stay of proceedings claiming delay in violation of his s. 11(b) right under the Canadian Charter of Rights and Freedoms to a trial within a reasonable time. Both applications were denied.

[14] He brought the first application submitting that the entrapment hearing was scheduled beyond the 18-month presumptive ceiling set in R. v. Jordan, [2016] 1 S.C.R. 631, 2016 SCC 27. In a decision released on November 8, 2017, the trial judge dismissed the application on the basis that the presumptive ceiling in Jordan did not apply to proceedings after the verdict. He stated that the principles underlying Jordan did not support extending the framework to include post-trial applications.

[15] The appellant brought the second application primarily based on a delay in disclosure before sentencing and a Crown application with respect to mandatory minimum sentences. In a decision dated September 4, 2018, the trial judge stated that the ultimate question was whether the case had taken markedly longer than what was reasonably required and concluded that the matter had moved quickly at every stage. He found each of the nine post-verdict applications were brought and heard efficiently and could not have moved along much more quickly than they did.

B. ARGUMENTS ON APPEAL

[16] The appellant submits the trial judge made five errors:

1. by finding the appellant’s testimony did not raise a reasonable doubt without considering his good character evidence;
2. by failing to apply the Kienapple principle to conditionally stay count 2 (child luring under 16), in addition to count 1 (child luring under 18);
3. by failing to find that the appellant’s right to be tried within a reasonable time as guaranteed by s. 11(b) of the Charter was violated; and
4. by concluding Project Raphael was a bona fide inquiry and failing to find that the investigative scheme constituted entrapment; or
5. in the alternative, by failing to find that the police conduct constituted entrapment for the s. 172.1(1)(b) (child luring under 16) offence.

The appellant also appeals his sentence on the basis that COVID-19 has rendered his sentence unfit.

C. ANALYSIS

(1) Appellant’s good character testimony

[17] The appellant complains that the trial judge did not mention his testimony that he would not have committed any sexual offence involving a minor because he had been a victim of sexual assault as a child. He argues that the trial judge was obliged to consider this evidence and, if he rejected it, explain why it did not leave him with a reasonable doubt.

[18] This was a trial before a judge alone. The trial judge stated he had considered all the evidence, he gave cogent reasons for his determinations of credibility, and he concluded the appellant’s evidence did not leave him with a reasonable doubt. He described the appellant’s evidence as “internally contradictory” and “illogical to the point of being nonsensical on the central points”. He said the appellant’s testimony was “contradicted by credible external evidence including the text messages he sent and his actions on the day in question.”

[19] The trial judge’s reasons for rejecting the appellant’s evidence were sufficient. The trial judge did not commit any reversible error by failing to avert to the evidence the appellant led to support his good character.

(2) Kienapple

[20] The trial judge held, and the Crown conceded, that counts 1 and 2, the two child luring charges, shared a sufficient factual and legal nexus such that one should be stayed. He stayed count 1 (child luring under 18).

[21] The trial judge noted, as the parties agreed, that there was a sufficient factual nexus between counts 2 (child luring under 16) and 3 (communicating to obtain sexual services from a minor) to satisfy the Kienapple principle. However, relying on in R. v. Prince, [1986] 2 S.C.R. 480, he found a lack of legal nexus between counts 2 and 3 because s. 172.1 and s. 286.1(2) have different and distinguishing elements that showed different statutory purposes. The luring offence in count 2 was directed towards “the use of telecommunication which enables adults to engage in anonymous, low visibility contact with vulnerable children.” The offence in count 3 was aimed at commercialized prostitution involving persons under 18 years of age. Therefore, he concluded that the Kienapple principle did not apply to counts 2 and 3.

[22] The appellant submits the trial judge erred by conditionally staying only count 1 under the Kienapple principle. Count 1 charged the appellant under s.172.1 with luring a person under 18 to facilitate the commission of the s. 286.1(2) offence.

[23] The appellant submits count 3 (communicating to obtain sexual services from a minor) should have been stayed as well. He points out that, in this case, all three counts arose from one conversation by text message, by one person, on one occasion, with one person believed to be underage, for the purpose of engaging in one specific sexual encounter. This, he submits, shows it is clearly the same delict.

[24] The appellant submits that if the “purpose behind the legislation” was sufficient reason to avoid the application of the rule against multiple convictions, the trial judge should not have conditionally stayed either of the luring charges because they were both enacted for the same statutory purpose.

[25] Finally, the appellant claims to demonstrate the error by submitting that had the appellant been tried and convicted of the two luring counts only, he would be able to plead autrefois convict if the Crown subsequently sought to try him on the s. 286.1(2) count.

[26] I see no error in the trial judge’s reasoning. The two counts do indeed have the different and distinguishing elements he identified. I also agree that the two offences have the different statutory purposes he stated.

[27] The appellant’s observation that count 1 (child luring under 18) also has a different statutory purpose to count 3 (communicating to obtain sexual services from a minor) is not on point. The trial judge stayed count 1 (child luring under 18) because of its factual and legal nexus to count 2 (child luring under 16), and not count 3 (communicating to obtain sexual services from a minor). The remaining question is related to the relationship of count 2 and count 3.

[28] I reproduce the two counts:

Count 2: Communicating via telecommunication with a person who he believed to be under the age of 16 years for the purpose of facilitating an offence under s. 152 (invitation to sexual touching) contrary to s. 172.1(2) (child luring under 16).

Count 3: Communicating for the purpose of obtaining the sexual services of a person under the age of 18 years contrary to s. 286.1(2) (communicating to obtain sexual services from a minor).

[29] Count 2 requires communication via telecommunication and the communication in count 3 must be to obtain sexual services for consideration. As Leibovich J., put it in R. v. Faroughi, 2020 ONSC 780, “[s]ection 286.1(2) seeks to protect against the evils of child prostitution, while section 172.1 seeks to protect…the criminal use of the internet and other similar devices to sexually exploit children.”

[30] I am not persuaded there is any basis to interfere with the trial judge’s decision.

(3) Section 11(b)

[31] The trial judge dismissed both of the appellant’s applications for a stay pursuant to s. 11(b).

[32] The appellant acknowledges that the Jordan presumptive ceilings do not typically apply to post-verdict delay. However, he points out that trial judges can refuse to enter a conviction if they find entrapment: R. v. Mack, [1988] 2 S.C.R. 903, at p. 972. This, he submits, makes entrapment applications unlike other post-trial motions. In entrapment applications, the question whether the accused will be convicted remains unresolved.

[33] I do not accept that entrapment hearings are exceptional post-trial proceedings that should be included in the Jordan presumptive ceilings. The Supreme Court in R. v. K.G.K., 443 D.L.R. (4th) 361, 2020 SCC 7, held that the presumptive ceilings established in Jordan do not apply to the trial judge’s deliberation time, and said the ceilings “apply from the charge to the end of the evidence and argument, and no further”: at para. 33. The Supreme Court explicitly rejected the possibility that Jordan ceilings apply from the charge to “the conclusion of post-trial motions”: K.G.K., at para. 33.

[34] While the Jordan ceilings do not apply, I must still consider whether the post-trial delay infringed the appellant’s rights under s. 11(b). The protections afforded by s. 11(b) encompass the time up to and including the date when a sentence is imposed: K.G.K., at para. 3; R. v. MacDougall, [1998] 3 S.C.R. 45, at para. 19.

[35] In R. v. Charley, 147 O.R. (3d) 497, 2019 ONCA 726, Doherty J.A. set a presumptive five-month ceiling, subject to the same exceptions and principles as the Jordan presumptive ceiling, that applies to sentencing delay. I do not accept the appellant’s submission that this presumptive five-month ceiling applies to both post-trial motions and sentencing. In Charley the issue was sentencing delay. The delay was due to a Crown application to have the offender declared a dangerous offender. I am satisfied the five-month presumptive ceiling was intended to apply to the sentencing process alone.

[36] The time required to deal with post-trial motions unrelated to sentencing must be considered separately as it is not possible to prescribe a presumptive ceiling for the completion of post-trial motions. Obviously, the number and complexity of post-trial motions will vary with each case. The time taken for post-trial motions should not be unreasonable considering the number and complexity of the motions in the specific circumstances of the particular case.

[37] The time taken for post-trial motions in this case was not unreasonable. The verdict was rendered on June 13, 2017 and the final ruling on the post-trial motions was delivered on September 4, 2018, approximately 14 months and 27 days later. From November 8, 2017 to December 6, 2017, the parties were dealing with a Crown application related to mandatory minimum sentences, which should be included in the time taken for sentencing. Defence counsel agreed that he was responsible for the delay from May 1, 2018 to August 28, 2018, which results in a deduction of 4 months. This leaves 9 months and 23 days that were taken to deal with 8 post-trial motions.

[38] The trial judge found that the post-verdict applications were necessary and had been brought and heard in an efficient way. He found that the overall time for the trial, including the post-verdict applications, was reasonable in all the circumstances. I agree with his assessment.

[39] It remains to consider the sentencing delay subject to the Charley presumptive ceiling. The sentencing process began on November 8, 2017, when the Crown made an application related to mandatory minimum sentences and ended on October 29, 2018, when a sentence was imposed. The total length of this period is 11 months and 22 days.

[40] On February 20, 2018, the appellant asked for an adjournment because of a late disclosure made by the Crown a week prior, which the appellant believed could impact the entrapment decision. Sentencing was adjourned to May 1, 2018. This period of delay amounts to 2 months and 12 days. The respondent submits that this should be counted as a discrete exceptional circumstance that should be deducted from the sentencing delay.

[41] Defence counsel sought a further adjournment from May 1, 2018, to August 28, 2018 due to another trial he was involved with and agrees this period should not be counted. This amounts to a deduction of 3 months and 28 days.

[42] The appellant asked for another adjournment from September 5 to 28 to get his affairs in order. These three weeks and two days should be deducted.

[43] Accounting for the periods that should be deducted, there was 4 months and 20 days of sentencing delay, which falls below the Charley presumptive ceiling.

[44] In the above calculations a month was treated as 30.5 days.

[45] I conclude there was no breach of the appellant’s s. 11(b) rights.

(4) Entrapment

[46] Counsel for the respondent in Ramelson adopted the submissions made by this appellant's counsel on the issue of entrapment. The comprehensive reasons in Ramelson included the analysis and rejection of the two entrapment grounds in this appeal. For the reasons set out in Ramelson, I would reject this appellant’s argument that he was entrapped.

(5) Sentence

[47] The trial judge imposed a sentence of 12 months imprisonment on count 1 (child luring under 18) and a concurrent term of 6 months imprisonment on count 3 (communicating to obtain sexual services from a minor). The problem with this is that the trial judge had stayed count 1 based on the Kienapple principle. In his Kienapple ruling he said, “Count 1 is stayed.” The Information reflects this as it is marked “Ct.1 Stayed Kienapple”. He then failed to sentence the appellant on count 2 (child luring under 16), a charge that had not been stayed and for which the appellant had been found guilty.

[48] The Crown submits not much turns on the fact the trial judge sentenced the appellant on count 1 (child luring under 18) instead of count 2 (child luring under 16), as the judge’s analysis on sentencing and the punishment he imposed would have been the same for either count 1 or count 2.

[49] I disagree. The mistake in this case is not a mere clerical or administrative error. The mistake is not simply referring to the numeral “1” rather than the numeral “2”. The trial judge left no doubt he was purporting to exercise jurisdiction to sentence the appellant on count 1 instead of count 2. In his sentencing reasons he stated that the respondent was convicted of “Communicating via telecommunication to facilitate a s. 286.1(2) offence (child prostitution) – s. 172.1(2)”, but the trial judge had stayed that charge. He then added that “a further count of Invitation to Sexual Touching s. 152 was stayed pursuant to the rule in R v Kienapple”, but that is not the charge that he had stayed. When he imposed the sentence, the trial judge referred expressly to count 1 by stating, “On the 172.1(2) charge of communicating via telecommunication to facilitate a s. 286.1(2) offence, Mr. Haniffa is sentenced to 12 months imprisonment.”

[50] The differences between these two offences could well have affected the sentence imposed. Count 1 criminalizes communicating with a person the accused believed to be under 18 years of age by telecommunication for the purpose of facilitating the offence of obtaining sexual services from a person under 18 of age for consideration. Count 2 criminalizes communicating with a person the accused believed to be under 16 for the purpose of facilitating an invitation to sexual touching.

[51] The trial judge’s imposition of 12 months imprisonment on count 1 is without effect because further proceedings on count 1 had been stayed earlier. The question arises whether this court should impose a sentence on count 2, the charge the appellant should have been sentenced on.

[52] In sentencing the appellant on count 2, the constitutionality of the mandatory one-year minimum sentence stipulated in s. 172.1(2) would necessarily arise because several Superior Court and Ontario Court decisions have held that the mandatory minimum one-year sentence is unconstitutional: Faroughi; R. v. C.D.R., 2020 ONSC 645; R. v. Saffari, 2019 ONCJ 861; R. v. Alekozai, [2020] O.J. No. 1162. Furthermore, sentences of less than one year of imprisonment have been imposed in a number of Project Raphael cases: Faroughi, Saffari, Alekozai. In these grouped appeals Mr. Jaffer was sentenced to six months imprisonment, and Mr. Dare was sentenced to three months imprisonment to be served intermittently. Project Raphael cases may be distinguished from the fact situations in R. v. Morrison, [2019] 2 S.C.R. 3, 2019 SCC 15, and R. v. Ghotra, 2020 ONCA 373, for example, where the offender has taken the initiative in seeking sexual relations with an underage person.

[53] The parties did not advance argument before us on the question of the constitutionality of the mandatory one-year minimum sentence stipulated in s. 172.1(2). Consequently, it would be inappropriate for the court to exercise its discretion to sentence the appellant on count 2.

[54] I recognize the appellant was sentenced on October 29, 2018, before the onset of the COVID-19 pandemic. I take judicial notice that the pandemic is in its third wave, that younger healthy persons are succumbing, and that the provincial government has taken strong measures to reduce close human contact. That said, I am not persuaded this court should intervene in a fit sentence without any evidence about the appellant’s particular circumstances and the current conditions within correctional facilities. These are considerations that can be taken into account when this matter is remitted to the trial judge for sentencing on count 2.

D. CONCLUSION

[55] I would dismiss the appellant’s appeal of conviction, the ruling on multiple convictions, the entrapment application, and the s. 11(b) applications. I would allow his appeal of sentence, set aside the sentence imposed on count 1, and remit his sentence on count 2 to the trial judge.

Released: May 17, 2021 “RGJ” “R.G. Juriansz J.A.” “I agree. M. Tulloch J.A.” “I agree. David M. Paciocco J.A.”