Court File and Parties

File No.: 131117/122008

IN THE ONTARIO COURT OF JUSTICE

BETWEEN:

REGINA

- AGAINST –

S.S.

RULING

BEFORE THE HONOURABLE MR. JUSTICE G. GRIFFIN on the 4th day of April, 2014 sitting at BELLEVILLE, ONTARIO, Courtroom 201

Contrary to the Criminal Code of Canada

APPEARANCES

Mr. Lee Burgess – Crown Counsel

Ms. Ruth Roberts – Counsel for the Accused

TRANSCRIPT ORDERED

TRANSCRIPT MATERIAL PROVIDED

TRANSCRIPT COMPLETED

Decision

GRIFFIN, J. (ORALLY):

S.S. entered guilty pleas to child luring by means of a computer contrary to Section 172.1(1)(a) of the Criminal Code of Canada. The child luring offence is a new offence. This has its genesis in Bill C-54 which was named 'Better Protecting Youth from Sexual Predators' which, due to the machinations of federal politics, was never passed into law but Bill C-10, the Omnibus Crime Bill, resulted in Section 172.1(1)(a) becoming law and in force on August 9, 2012.

Along with the perceived need for a new criminal offence, the Parliament of Canada by Section 172.1(2)(b) made it clear how seriously it viewed such criminal conduct by requiring that even upon a summary election by the Crown, the sentence must include a minimum punishment for a term of 90 days.

Mr. S.S. also entered a guilty plea to the charge of breach of recognizance contrary to Section 145(3) of the Criminal Code.

In the circumstances of this case, Crown counsel respectfully submits that the minimum period of imprisonment, along with probation and other ancillary orders, would be an appropriate sentence.

Defence counsel respectfully submits that a minimum sentence of 90 days imprisonment would constitute cruel and unusual punishment contrary to Section 12 of the Charter of Rights and Freedoms. Accordingly, defence counsel has brought an application for an order declaring the 90 day mandatory minimum jail sentence to be unconstitutional and have no force and effect. It is the position of defence counsel an appropriate response to the offending conduct in question should not include a jail sentence but rather court ordered conditions as part of a probation order which would satisfy the sentencing principles of both general and specific deterrence.

Defence counsel's primary argument is based upon Section 12 of the Charter. Mainly that the 90 day mandatory minimum sentence constitutes cruel and unusual punishment. However that does not end the matter as defence counsel argues the 90 day mandatory minimum sentence violates Mr. S.S.'s Section 7 Charter right to life, liberty and security of person and not to be deprived thereof, except in accordance with the principles of fundamental justice. Defence counsel respectfully submits that the 90 day minimum jail sentence is arbitrary and to incarcerate her client based upon an arbitrary law is contrary to the principles of fundamental justice.

Crown counsel submits that the mandatory minimum sentence in question is constitutionally valid and an expression of Parliament's will to ensure the safety of children.

I will now set out the facts that form the basis of the guilty pleas, review a psychological report prepared by Dr. Rowe, conduct a Section 12 cruel and unusual punishment analysis and then address the Section 7 claim and then provide my reasons for sentence.

FACTS OF THE OFFENCE

Mrs. A.C. on November 8, 2012, reported to the police that her 16 year old son was receiving messages from an older male, S.S., on his Facebook account. These messages included the young man to do something of a homosexual nature such as provide photographs of the young man with his shorts and boxers off, have a shower with S.S., touch S.S., put on a condom. There would be inducements such as letting the young man drive S.S.'s car, payment of money, provide $200 to buy new hockey skates. S.S. also advised the young man that a person named C.L. would pay money to perform sexual acts with him. The young man in question rebuffed S.S. but S.S. persisted in his messaging. The young man made it clear to S.S. that the sexual invitations were unwanted and S.S. apologized but then renewed the unwanted invitations. There was never any sexual touching between the young man and S.S.. S.S. was 20 years old at the time, with the young man being 16. The time period in question was from early October 2012 through to November 12, 2012. Mr. S.S. and the young man met as a result of an informal ball hockey league Mr. S.S. organized, which involved males between 14 and 30 playing road hockey every Wednesday night in front of Mr. S.S.'s residence. Upon being arrested, S.S. gave a cautioned statement to the police which included that he himself had been sexually touched by C.L. when he was younger. Mr. C.L. was charged with sexual offences upon S.S. as the victim and Mr. C.L. has since entered guilty pleas to sexual assault and received a conditional sentence.

Mr. S.S. was released on a recognizance of bail with his parents as sureties. It was a condition of his release that he could not be found in an area where it could be expected that children could be found. This included but was not limited to playgrounds, parks, swimming pools and school yards.

On August 10, 2013 the police conducted a door knock on Mr. S.S.'s residence and it was discovered he had gone to Presquile beach with his parents to celebrate his Grandmother's 65th birthday.

DR. ROWE'S PSYCHOLOGICAL REPORT

Dr. Robert Rowe, at the request of defence counsel, completed a Psychological Report Forensic Risk Assessment on S.S. and provided a ten page report dated September 6, 2013.

The following can be gleaned from the report:

1. S.S.'s date of birth is […], 1992. He is both sexually and socially immature.

2. He does not have a well-developed problem solving set of skills.

3. It would not be expected that S.S. would be able to understand language or comprehend verbal information at or near his age level as he is considerably delayed in these domains.

4. His overall level of cognitive functioning was found to be at the bottom end of the below average range but he does not meet the diagnostic criterion for developmental delay.

5. He is a low-risk for violent recidivism and a low to moderate risk for sexual recidivism.

6. It must be stressed that from a rehabilitative perspective, there is little value in incarcerating Mr. S.S.. Such an environment is likely to exacerbate and provide few opportunities for Mr. S.S. to target his need areas. The need areas involving sexual behaviour, educational employment and leisure/recreational activity can all be reasonably addressed in the community.

7. His employment history has been sporadic. He has no trade or skills and as an adult he has not been a productive member of the community.

8. He has secure attachments with both parents and has always lived at home with them. His bail does not allow him to live there now but Dr. Rowe believes that strengths towards successful treatability include family support and pro-social values.

9. Mr. S.S. would benefit from one-to-one counselling that is capable of targeting multiple need areas such as interpersonal relationship issues, sexual intimacy, coping and problem solving. Mr. S.S.'s learning style would be best suited to individual counselling.

SECTION 12 ISSUE

Section 172.1(1)(a) provides as follows:

172.1 (1) Every person commits an offence who, by means of telecommunication, communicates with (a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence under subsection 153(1), section 155, 163.1, 170 or 171 or subsection 212(1), (2), (2.1) or (4) with respect to that person;

while Section 172.1(2)(b) reads as follows:

(2) Every person who commits an offence under subsection (1)(b) is guilty of an offence punishable on a summary conviction and is liable to imprisonment for a term of not more than 18 months and to a minimum punishment of imprisonment for a term of 90 days.

Section 12 of the Charter of Rights and Freedoms states:

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

It is important to set out the following words from the Supreme Court of Canada decision of Steele v. Mountain Institution, (1990) 60 C.C.C (3d) pg. 1, where Justice Cory, at pages 24 and 25, writes:

"It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter. The test for determining whether a sentence is disproportionately long is very properly stringent and demanding. A lesser test would tend to trivialize the Charter. In R v. Smith, (1987), 34 C.C.C. (3d) 97, 40 D.L.R. (4th) 435, [1987] 1 S.C.R 1045, Lamer J. set out the strict test for reviewing a sentence under s. 12 of the Charter. At p. 139 he wrote:

'The test for review under s. 12 of the Charter is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive. We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence. Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate.'"

Chief Justice McLaughlin makes it clear in the Supreme Court of Canada decision of R v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R 96 at paragraph 14, what grossly disproportionate means in the context of a sentence being too cruel:

"The test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate. R v. Smith, [1987] 1 S.C.R 1045. As this court has repeatedly held, to be considered grossly disproportionate the sentence must be more than merely excessive. The sentence must be 'So excessive as to outrage standards of decency' and disproportionate to the extent that Canadians 'Would find the punishment abhorrent or intolerable', R v. Wiles, 2005 SCC 84, [2005] 3 S.C.R 895, [2005] S.C.C 84, at paragraph four citing Smith at page 1072 and Morrisey at paragraph 26."

As well, Justice Doherty points out in the recent Court of Appeal decision R v. Nur, [2003] O.J. No. 5120 at paragraph 69:

"Sentencing policy is first and foremost Parliament's responsibility. A mandatory minimum is a 'Forceful expression of government policy in the area of criminal law.' R v. Nasogaluak, [2010] S.C.C 6, Ferguson at paragraph 54 and R v. Gill, [2012] ONCA 607 at paragraph 45."

It is clear from the case law that to determine gross disproportionality, one must undertake a two-step inquiry. Step one is to determine if the punishment is grossly disproportionate as applied to the accused. If it is determined that the mandatory minimum sentence is not grossly disproportionate for Mr. S.S. in these particular circumstances, then Step two is undertaken. Step two requires a consideration of whether the minimum sentence is grossly disproportionate when applied to a reasonable hypothetical. If the minimum penalty is grossly disproportionate, in the reasonable hypothetical inquiry, then assuming it cannot be saved by Section 1 of the Charter, it will mean that the minimum sentence constitutes cruel and unusual punishment and it will no longer be of any force or effect.

At paragraph 78 of R. v. Nur, 2013 ONCA 677, [2013] O.J. No 5120, Justice Doherty sets out the factors that inform the gross disproportionality analysis.

THE GRAVITY OF THE OFFENCE

The title alone of Section 172.1(1) 'Luring a Child', signals the seriousness of the offence. Section 172.1(1)(a) requires a person:

1. To make use of a telecommunication device;

2. To communicate with someone he or she believes to be under the age of 18;

3. For the purpose of committing sexual exploitation, incest, child pornography, a child pornography offence, procuring sexual activity by a parent or guardian for persons under the age of 18, a household where permitting sexual activity under the age of 18 and procuring sex with a person under the age of 18.

The Crown must prove that the accused intended to commit one of the prohibited sexual offences with a person who the accused believed was under the age of 18.

The section is clearly designed to address the need to protect the innocent children from sexual predators. As Justice Moldaver points out, when he was sitting in the Ontario Court of Appeal, at paragraph 59 of R. v. Woodward, 2011 ONCA 610, [2011] O.J. No 4216:

"But the offence of luring carries very real dangers - innocent children being seduced and sexually assaulted or even worse, kidnapped, sexually abused and possibly killed."

The moral culpability of this offence is significant as it is concerned with protecting the lives of innocent children from inappropriate sexual cravings of offenders. There can be no conclusion other than this is a serious offence.

On the other hand, the seriousness is somewhat diminished by the fact that what is being criminalized is the grooming activity rather than the deviant sexual criminal activity itself. Although Justice Moldaver, in R. v. Woodward, makes it clear that grooming is an aggravating feature in a sexual assault case. It must however be made clear that this offence does not involve actual physical harm.

THE PERSONAL CIRCUMSTANCE OF THE OFFENDER

S.S. has no prior criminal record and he himself was a victim of a sexual assault as a young person.

He enjoys the support of his family. He is described as well-liked and sociable, although awkward at times.

His overall level of cognitive functioning is at the bottom end of the below average range with an IQ of 81.

He is 21 years of age, had no problems whatsoever with alcohol or drugs. He has pro-social values and none of his friends have criminal records.

When confronted by the victim about the unwanted request for sexual favours, S.S. apologized but then renewed the unwanted, illegal invitation.

S.S. presents as a sympathetic individual in that he is a victim of sexual assault, a person of below average intelligence, who has pro-social values, has always lived with his parents, who he loves very much and they in return love him very much.

He entered guilty pleas to the Section 172.1(1)(a) offence.

There is no question that but for the minimum sentence set out in Section 172.1(2)(b), the principles in Section 718.2(e) would very much be an animating factor in determining the appropriate sentence. Section 718.2(e) provides as follows:

A court that imposes a sentence shall also take into consideration the following principles:

(e) All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

To take any person and require them to remove their clothes, put on a prison uniform and then place them in a cage is a seriously dehumanizing thing to do. It becomes all that more demeaning to all concerned when it is done to a person such as S.S. who is at the bottom-end of the below average range intelligence and he himself has been a victim to sexual assault. Certainly a valid argument could be advanced that it debases all of us when we imprison people such as S.S. but as pointed out earlier such a minimum sentence is a "Forceful expression of government policy in the area of criminal law."

THE PARTICULAR CIRCUMSTANCES OF THE CASE

The circumstances of the case are not what one would normally have spring to mind when speaking of child luring.

This is not a case of a middle-aged man making use of a computer to seduce an adolescent child, rather it is the case of a 20 year old man with low intelligence with a learning disability, sending messages to a 16 year old boy to do something of a homosexual nature.

These two people are much closer in age than what one would normally consider in a child luring situation and in fact, these two fellows played road hockey together and that is how they met. It seems as well that if S.S. had simply left it alone after the young man let it be known that the sexual invitations were unwanted, that might have been the end of the matter. It should be remembered as well that S.S. apologized at that point. However, shortly thereafter he renewed the unwanted and illegal invitations and that is an aggravating feature.

ACTUAL EFFECT OF PUNISHMENT ON THE INDIVIDUAL

It is clear that when considering whether a minimum sentence amounts to cruel and unusual punishment, that the reality of what actual sentence is served must be considered. By operation of Section 28 of the Ministry of Correctional Services Act, as well as the Prison and Reformatories Act, Mr. S.S. will earn remission so that one-third of the 90 day sentence will be credited to him so he will only have to serve 60 days.

Defence counsel pointed out that it is likely he would be transferred from Quinte Regional Detention Centre in Napanee to Central East Detention Centre in Lindsay, which would make it very difficult for his family which is so important to both him and to them to be able to visit. It is also important from a rehabilitative point of view as it is from them he derives his stable pro-social views.

Defence counsel also submits that a non-sophisticated, low functioning individual such as Mr. S.S., it is likely he will experience a very difficult time while incarcerated as he will become an easy target for the thoughtless bullies he may encounter while in custody. Unfortunately, defence counsel is right, as a reformatory is very much like T.H. state of nature. That is man is in continual fear of danger with life being nasty and brutish. Not a very pleasant spot for a man without a criminal record who has intellectual challenges. It should be pointed out however, by operation of Section 732(1), an intermittent sentence is available so that Mr. S.S. could continue to enjoy the benefit of being with his family during a portion of the week and for another portion of the week serve a jail sentence.

PENOLOGICAL GOALS AND SENTENCING PRINCIPLES REFLECTED IN THE CHALLENGED MINIMUM SENTENCE

It is readily understandable the sentencing principles involved are denunciation, general and specific deterrence and the need to separate offenders from society.

As Chief Justice McMurchery wrote long before the minimum sentence provisions became law and a conditional sentence was still available as a sentencing alternative, at paragraph 25 in R v. Folino, [2005] O.J. No 4737:

"Having come to this conclusion, I wish to first make it clear that I fully agree with the sentencing Judge that the offence of child luring must be dealt with seriously by the courts. The social policy underlying the enactment of this offence is clear. Many Canadian families have home computers with Internet access. Children are frequent users of the Internet. Children, as vulnerable members of our society, must be safeguarded against predators who abuse the Internet to lure children into situations where they can be sexually exploited and abused. In most circumstances involving the offence of child luring, the sentencing goals of denunciation and deterrence will require a sentence of institutional incarceration. Indeed, it will only be in the rarest of cases that a conditional sentence will be appropriate in a case involving this offence. In my view, however, this is one of those rare cases."

Obviously, the Parliament of Canada chose to get rid of the rarest of cases where a conditional sentence will be appropriate by requiring a sentence of institutional incarceration.

THE EXISTENCE OF VALID EFFECTIVE ALTERNATIVES TO A MANDATORY MINIMUM

Dr. Rowe, in his report, made the following point:

"It should be stressed that from a rehabilitative perspective, there is little value in incarcerating Mr. S.S.. Such an environment is likely to exacerbate risk and provide few opportunities for Mr. S.S. to target need areas. Whether Mr. S.S. remains in the community or is later incarcerated, having him involved in intensive interventions to manage risk is contraindicated. He is a low risk offender."

The difficulty however, is that there is more than rehabilitation to consider. The need to denounce and deter such conduct cannot be achieved by a period of probation and although a conditional sentence is not available in law, even if it were it is hard to imagine how house arrest could have any real denunciatory effect on a person who essentially lives his life as if he is serving a conditional sentence.

I am certainly of the view that 90 days is not required and that a sentence closer to 14 days would be more in keeping with an individualized approach to sentencing. That is, if asked, what is the appropriate sentence for this particular offender based upon the seriousness of the offence, the degree of its culpability and the harm occasioned by this offender, I would have answered an intermittent sentence of 14-21 days followed by a period of probation.

A COMPARISON OF PUNISHMENTS IMPOSED FOR OTHER SIMILAR OFFENCES

If one examines the due minimum sentence for sex offenders under Bill C-10, it will become apparent that 90 days is the standard minimum period of imprisonment when the Crown proceeds summarily. Although, for bestiality involving a child, making child pornography and distributing child pornography, the minimum sentence, even on a summary election, is six months. It should also be noted that for making sexually explicit material available to a child or exposing genital organs to a child, the minimum jail sentence is 30 days if the Crown proceeds by way of summary procedure.

The point is that Parliament is clearly attempting to have a very clear and consistent regime of sentencing when it comes to sexual offences involving victims who are under the age of 18 with jail always forming part of the disposition.

THE PUNISHMENT AND THIS ACCUSED

As can be seen from what has already been stated, a sentence of 90 days serves no rehabilitative purpose and it would be difficult for S.S., a man who suffers from intellectual deficits, to serve time in custody as he will be an easy target for the unsavoury members of the inmate population.

If the Parliament of Canada had not instituted the new sentencing regime, I would have imposed a sentence of incarceration in the range of 14-21 days followed by a period of probation. So it must be clearly understood that I view a sentence of 90 days for this offender, in these circumstances, to be excessive.

However, as Mr. Justice Rosenberg of the Ontario Court of Appeal writes at paragraph 68 of R. v. McDonald, [1998] O.J. No 2990:

"The test for whether a punishment is cruel and unusual is whether it is grossly disproportionate to what would have been appropriate. The punishment must be so excessive as to outrage standards of decency. A sentence that is merely excessive, or even unfit, is not necessarily grossly disproportionate. Further, it is unwise to simply measure gross disproportionality against a current sentencing regime."

In my view, it cannot be said that a 90 day minimum sentence for this accused would be so excessive as to outrage standards of decency. In other words, a sentence that includes 90 day imprisonment cannot be said to be grossly disproportionate.

SECOND STEP: ASSESSING SECTION 172.1(2)(b) UNDER REASONABLE HYPOTHETICAL CIRCUMSTANCES

This aspect of the analysis is concerned with examining a reasonable hypothetical circumstance to determine if the minimum sentence would be grossly disproportionate.

In neither the written argument nor their oral argument, did the Crown or the defence provide a reasonable hypothetical.

At paragraph 30 of the Supreme Court of Canada decision of R v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R 90, Mr. Justice Gonthier provides the following:

"What constitutes a reasonable hypothetical? In Goltz, at p. 506, I said that reasonable hypotheticals could not be 'far-fetched or marginally imaginable cases'. They cannot be 'remote or extreme examples' (p.515). The reasonableness of the hypothetical cannot be overstated, but this means that it must be reasonable in view of the crime in question."

Crown counsel, at paragraph 17 of his Factum, provides as follows:

"The reasonable hypothetical test is one that operates at a general level to capture conduct that includes all the elements of the offence that trigger the mandatory minimum, but no more [Nur, para.142]. In relation to a s. 172.1(1)(a) offence, the reasonable hypothetical would be satisfied when a person:

a. Uses a computer system;

b. To communicate;

c. With a person who is, or who the accused believes is under the age of 18 years;

d. For the purposes of facilitating the commission of enumerated sexual offences;

e. With that person."

It is clear from the case law that a reasonable hypothetical must be both realistic and, as Justice Doherty wrote at paragraph 142 of R v. Nur, 2013 ONCA 677, [2013] O.J. No 5120:

"In my view after Morrisey and Goltz, a reasonable hypothetical is one that operates at a general level to capture conduct that includes all of the essential elements of the offence that trigger the mandatory minimum but no more."

The reasonable hypothetical that I believe should be considered is as follows:

A 19 year old male, by way of a smartphone, communicates with a female he knows to be 16 and a half years of age at his high school. He requests her to send a picture of her breasts to him. The male could be doing this in the context of being with his buddies on the hockey team or at a party or alone in his room. The 16 and a half year old female, rather than send the picture of her breasts, unlike some of her friends who have done that, goes to her mother who in turn attends at the police station.

The reality is that the officials with school boards have spoken of students making bad choices and the need to teach digital citizenship. The popular press has recently cited many examples of young people sending inappropriate pictures to each other. There has been a great deal of discussion about how the youth of today make use of smartphones in a manner that many adults cannot understand. It seems at times that the primary motive communicating among many young people is to make use of their phones and text each other, send pictures and make use of such apps as SnapJack. It is important to understand that if the 18 or 19 year old high school student, over Facebook or some other mode of telecommunication, contacted a 16 or 17 year old and requested a picture, whose dominant characteristic of which is a depiction for a sexual purpose of a sexual organ, it would be more than a bad choice. It would be child luring within the meaning of Section 172.1(1)(a) and the young man would have to go to jail for at least 90 days.

One of the more unusual features of such an outcome is that if this same young man asked a 16 or 17 year old female directly, face to face, "show me your breasts", he would not even be committing an offence let alone facing a minimum jail sentence of 90 days.

When I consider the factors that inform the gross disproportionality analysis in the context of the reasonable hypothetical, some of the features remain the same as when the particular accused is considered while others differ.

The gravity of the offence remains serious however the circumstances of the case would be much less grave. No harm befell the 16 and a half year female as she was astute enough to not send a picture and bring the matter to her mother's attention. The fact that many young people are making use of their telecommunication devices to communicate with each other and request photographs of body parts is not that unusual as it appears to happen with some frequency. As well, the personal characteristics of the offender can easily be that he is simply doing what he understands other people his age are doing and is otherwise a socially well adjusted, good student.

The actual effect of placing a socially well adjusted, good student in custody for 90 days could seriously undermine his ability to meet his potential as he matures, due to the dehumanizing effect of incarceration with the accompanying impact on his degree of self-confidence and sense of self-worth.

The penological goals of sentencing principles remain that of the need to deter and denounce such conduct while valid, effective alternatives to the mandatory minimum such as probation with community service along with counselling would provide an adequate response to the offending conduct.

When considering the reasonable hypothetical, I was mindful that the actual accused in this case was 20 and the victim was 16. What differs between the actual offence and the reasonable hypothetical is a slightly smaller age difference in the reasonable hypothetical, the request in the reasonable hypothetical is related to a one time only communication for a picture of female breasts, rather than repeated conduct in the actual offence for both photos, touching and the possibility of involving a third man known as C.L..

The point is that the difference between the actual offence and the reasonable hypothetical are not insignificant. I have already stated that the mandatory 90 day minimum sentence when applied to the accused, does not reach the level of gross disproportionality. I am however struggling with whether the mandatory minimum sentence is cruel and unusual punishment when applied to the reasonable hypothetical. I am extremely troubled by what might be seen as a fine line between being an advocate, by creating a reasonable hypothetical and by being a Judge answering the question on a reasonable hypothetical that had been presented to me by counsel. It is very disconcerting as a society that we are imprisoning young people because of how they telecommunicate or how they use their telecommunication devices and it may well be that Parliament acted prematurely in creating the child luring offence without a proper understanding of the role of telecommunication device or the role that telecommunication devices play in the day to day lives of many younger members of our society.

I am extremely mindful of the need to show a very high level of deference to legislated sentences and as Justice Doherty points out at paragraph 69 of R v. Nur, 2013 ONCA 677, [2013] O.J. No 5120, "Sentencing is first and foremost Parliament's responsibility. A mandatory minimum is a forceful expression of government policy in the area of criminal law."

This is an extremely close case and becomes that much more difficult by the fact that the reasonable hypothetical I have used is of my own making without the benefit of Crown or defence developing arguments either for or against the appropriateness of the reasonable hypothetical.

Quite frankly it would be my sincere hope that the reasonable hypothetical I have made use of would result in the police neither laying a charge, contrary to Section 172.1(1)(a), or a Crown attorney resolving the matter by way of a Section 810 order requiring the young man not to communicate with the young lady again.

I do not think that the reasonable hypothetical I have made use of is either far-fetched or marginally imaginable but rather very real. As recently within the community I reside, there was a very well publicized case of picture requests by a certain high school aged hockey team of similar aged high school girls, with many of the teen girls happily complying with the request. There is a strong likelihood that many members of the community would be shocked to think that such conduct could result in a minimum jail sentence of 90 days. That a mandatory minimum jail sentence would be imposed for consensual sexual activity among young people in question.

It is with significant hesitation and reluctance brought on by some slight uncertainty as to the correctness of my reasonable hypothetical that I am unable to conclude that the 90 day jail sentence would be, in the words of Justice Gonthier found at paragraph 26 of the Supreme Court of Canada decision of R v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R 90, to be so grossly disproportionate that "Canadians would find the punishment abhorrent or intolerable."

It is however my belief that this halting decision could and should be reviewed by a higher court and there could be a robust articulation of the reasonable hypothetical that I have used by allowing the Crown and the defence to develop arguments which in turn could lead to a different conclusion in that it could be determined, much like what was done by Justice Doherty in R v. Nur, 2013 ONCA 677, [2013] O.J. No 5120, that the minimum jail sentence is grossly disproportionate to the severity of the offence described in the hypothetical.

To be even more blunt, based upon the record before me it would be an error to find gross disproportionality based upon the reasonable hypothetical created by myself without any argument from counsel but that on a more complete record, it may well be determined that the 90 day minimum jail sentence is grossly disproportionate to the severity of the offence described in my proposed reasonable hypothetical.

The applicant's claim to have the mandatory minimum sentence of 90 days, set out in Section 172.1(2)(b), declared unconstitutional for violating Section 12 of the Charter is dismissed.

THE SECTION 7 CLAIM

Section 7 of the Charter of Rights and Freedoms provides everybody has a right to life, liberty and security of the person and not to be deprived thereof except in accordance with the principles of fundamental justice. Defence counsel appears to be arguing that the mandatory minimum jail sentence of 90 days is inconsistent with the principles of fundamental justice and is therefore unconstitutional. As well defence counsel appears to be arguing that a minimum jail sentence is arbitrary and as Justice Doherty points out in paragraph 147 of R v. Nur, 2013 ONCA 677, [2013] O.J. No 5120, "Legislation that limits an individual's liberty in an arbitrary manner is contrary to the principles of fundamental justice and infringes Section 7 of the Charter."

What is clear however is that the minimum sentence of 90 days was part of a package of legislation to address the need of protecting youth from sexual predators. It was part of Bill C-10 the Omnibus Crime Bill, which included establishing several new mandatory minimum penalties. It is the view of Parliament the mandatory minimum sentence act as a deterrent, reduce sentence disparity by requiring all offenders to serve some specified minimum time in jail and responds to the public's need that offenders should be held accountable by being incarcerated.

The legislative objective of the minimum sentencing in question is to let the public know that Parliament believe that the conduct in question is abhorrent and offences involving sexual exploitation of children is heinous with a real need for consistency in sentencing which always requires some form of jail.

While many people may argue that the use of minimum sentence simply does not achieve the objective of deterrence or in any way better protect young people, it must be acknowledged that the objectives of the minimum sentence is to respond to a perceived need to protect young people from those offenders who make use of the internet and other electronic communications to lure young people into becoming sexual victims.

It cannot be said that the minimum sentence is inconsistent with legislative objectives of Parliament, which in turn means that the minimum sentence cannot be considered arbitrary.

As Justice LeBel at the Supreme Court of Canada wrote in R v. Nasogaluak, 2010 SCC 6, [2010] S.C.J No 6 at paragraph 45:

"Absent a declaration of unconstitutionality, minimum sentence must be ordered where so provided by the code. A judge's discretion does not extend so far as to override this clear statement of the legislative intent."

And further at paragraph 63:

"In addition, the discretion of the sentencing judge will have to be exercised within the parameters of the Criminal Code. The judge must impose sentences respecting statutory minimums and other provisions which prohibits certain forms of sentence in the case's specific offences."

There is nothing arbitrary about the 90 day minimum sentence set out in Section 172.1(2)(b). It is intended to maximize the principles of deterrence and denunciation for people found guilty of child luring. I am unable to find that the minimum sentence of 90 days set out in Section 172.1(2)(b) results in a violation of Section 7 of the Charter and that claim is dismissed.

REASONS FOR SENTENCE

As I have already made clear, I am of a view that the 90 day minimum jail sentence required by law is excessive and, but for the Parliament of Canada requiring such a sentence, I would have imposed a sentence of 14-21 days followed by a period of probation with appropriate terms.

S.S. has no prior criminal record. S.S. was a victim himself to an actual sexual assault as opposed to being a victim to receiving unwanted telecommunication requests requesting homosexual acts.

The victim in this case was 16 years of age and S.S. was 20 years of age. S.S. initially apologized to the victim when told these telecommunication requests were unwanted. S.S. has an IQ of 81. He is at the low end of the low range of intellectual function.

S.S. entered a guilty plea, thereby ensuring that neither the victim nor his mother had to testify.

S.S. enjoys the support of his family and has pro-social values and attitudes.

Despite S.S.'s learning disability, low intelligence, he expressed positive attitudes about counselling.

It should be understood that the unwanted communication was repeated over a period of time and included involving the man who sexually assaulted S.S. when he was younger participating in sexual acts for payment. The fact that S.S., after he was confronted by the victim not wanting these calls and illegal invitations and continuing with them, makes it clear that the sentence must have the effect of getting S.S.'s attention. But anything more than a 14-21 day jail sentence followed by probation, in my view, is more than necessary to satisfy the purposes and principles of sentencing.

As I have made clear, my view does not match that of the Parliament of Canada which has passed a law that requires S.S. to go to jail for at least 90 days.

SENTENCING ORDER

Accordingly, for the Section 172.1(1)(a) offence, I sentence S.S. to 90 days. It is to be served intermittently as I want him to be able to live at home when he is not in custody so he can benefit from the love, affection and guidance provided by his family. He will serve his sentence commencing today for processing and release and he will return to Quinte Detention Center on Tuesday night, April 22 at 8:00 PM until Friday morning, April 25 at 6:00 AM and each Tuesday to Friday thereafter until the sentence is completed. The reason I have him commencing the sentence on April 22, 2014 is to allow time if there is going to be an appeal, to allow the appellant to appear before the Superior Court and obtain bail pending appeal.

There will be a 15 month period of probation requiring him to:

1. Report to a Probation Officer, to keep the peace and be of good behaviour;

2. To attend Quinte Detention Center on time, not having consumed any alcohol, and without any non-prescribed drugs;

3. Not to communicate in any manner whatsoever with the victim, C.D., or any member of C.D.'s family;

4. He is to attend any counselling recommended by the Probation Officer, sign consent forms to see that the counselling is being done;

5. He is not to be alone with males under the age of 16, other than members of his family; and

6. He is not to use the internet or other digital network unless under the supervision and immediate presence of an adult.

I have considered the issue of making an order under Section 161 of the Criminal Code but in light of the 90 day jail sentence as well as probation, I do not think such an order is required.

It should also be kept in mind as well that the offending conduct in this case was restricted to the use of telecommunication device and as I understand the victim was not under the age of 16, a requirement found in Section 161. He will be required to provide a sample of his DNA and there will be a SOIRA order for a period of 10 years.

For the offence of breaching his recognizance for attending his Grandmother's 65th birthday celebration at Presquile beach, I consider that he was there with his family, that he entered a guilty plea of the offence, that he had to move from his parents' home, where he has always lived, where he was released for that offence and he was also suffering or did suffer a deprivation of liberty by being under house arrest while released. He has no prior criminal record. The fine will be $100 and he will be given four months to pay the fine. I am not ordering DNA on the 145 charge.

COURT PROCEEDINGS

THE COURT: S.S., come here. Come on up with your lawyer here. You understand anything that was said? Not really right? You are now going to have to go with these police officers. You are going to go to Quinte Detention Center and you are going to be released later today okay? Your parents – I'm sure the police will let him speak with his parents?

COURT OFFICER: Yes, we have interviews for that.

THE COURT: And you'll be released later today from Quinte Detention Center. You would probably, I'm sure your lawyer will talk to you about what happened. S.S., just so you know, I do not like the idea that I had to put you in jail 90 days. The Government of Canada has passed a law. I had made several comments on that and I hope that you ultimately succeed. Thank you.

MS. ROBERTS: Your Honour, just for the record, I can tell you that Mr. Pretsell is going to be handling the appeal on this case.

THE COURT: Good.

MS. ROBERTS: Thank you.

THE COURT: Thanks.

MS. ROBERTS: Thank you Your Honour. Your Honour, I have some medications for S.S.…

THE COURT: You can contact Mr. Schibinsky…

MS. ROBERTS: I'll send them over to Mike Schibinsky…

THE COURT: Unfortunately, I think what's going to happen, you've got to wait until the end of bail court. They'll take him, he'll be released. I would think he'll be released around 3 or 4 – I don't know what their list is.

MS. ROBERTS: Right.

THE COURT: But, you now, he is going to be released today so…

MS. ROBERTS: So he doesn't…

THE COURT: …I would work with the authorities.

MS. ROBERTS: That's fine Sir.

THE COURT: And it may well be, if you're – Mr. Pretsell – is successful that- I leave that to you.

MS. ROBERTS: It's April 22 he starts his…

THE COURT: What's that?

MS. ROBERTS: April 22 he starts his sentence?

THE COURT: Right, right, right, right. Whether he is at - the Superior Court, I tried to do it once and you can never do anything quickly.

MS. ROBERTS: No, I appreciate that.

THE COURT: And then Easter is in the mix too.

MS. ROBERTS: Thank you, thank you Your Honour.

RULING CONCLUDED

CERTIFICATE OF RECORDING

FORM 1

[Evidence Act, Subsection 5(1)]

I, Sarah Redshaw, Court Reporter, certify the Recordings of the evidence and proceedings #1311-CR201-20140404-084725-10-GRIFFING.dcr held at the Quinte Courthouse, 15 Bridge Street West, Belleville, Ontario on the 4th day of April, 2014 and that I was in charge of the sound recording device during those proceedings.

Sarah Redshaw, Court Reporter

CERTIFICATE OF TRANSCRIPT

FORM 2

[Evidence Act, Subsection 5(2)]

I, Sarah Redshaw, certify that this document is a true and accurate transcript of the recording of R. vs. S.S., in the Ontario Court of Justice, held at the Quinte Courthouse, 15 Bridge Street West, Belleville, Ontario, which has been certified in Form 1 by me and dated this 14th day of April, 2014.

Sarah Redshaw, Court Reporter