Ontario Court of Justice

Date: 2018-10-29

Court File No.: Newmarket 16-02198

Between:

HER MAJESTY THE QUEEN

— AND —

ERHARD HANIFFA

SENTENCING

Delivered October 29, 2018

Ms. Kellie Hutchison ............................................................................. counsel for the Crown

Mr. Boris Bytensky .......................................................................... counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Haniffa responded to an online prostitution advertisement. The ad stated the minimum possible age permitted on the site – 18. There were other descriptors emphasizing youth, "YOUNG, Shy FRESH and NEW – … Be gentle …super new to this …". During the conversation Mr. Haniffa was told that the girl was actually 15 years old. He did not terminate the conversation but instead discussed various sexual acts in graphic detail. He negotiated price and then drove to the hotel to meet the girl to complete the transaction. At the hotel room door he was met by officers of the York Regional Police.

[2] Several times during the text conversation with the officers, Mr. Haniffa mentioned concern for himself and his potential jeopardy given the age of the girl. He discussed every aspect of his sexual interests, but never once did he express any concern for the fact that the girl was 15 and was responding to the conversation in a way consistent with that age. Mr. Haniffa did not ascertain the girl's age because in his own words via text, he was "ok" with her being 15.

[3] Mr. Haniffa was convicted at trial of:

• Communicating via telecommunication to facilitate a s.286.1(2) offence (child prostitution) – s.172.1(2)
• Communicating for the purpose of obtaining the sexual services of a person under the age of 18 years contrary to s.286.1(2)

A further count of Invitation to Sexual Touching s.152 was stayed pursuant to the rule in R v Kienapple, [1974] SCJ No 76.

[4] The statutory minimum sentence in s.172.1 of the Criminal Code was found to violate s.12 of the Charter and declared of no force and effect – R v Morrison 2017 ONCA 582, Heard and Reserved May 24, 2018 [2017] SCCA No 290. The statutory minimum sentence in s.286.1(2) was declared unconstitutional in R v Badali 2016 ONSC 788 and R c Lalonde 2017 ONCS 2181.

The Crown Position

[5] The Crown proceeded by indictment. The Crown submits that sentences for these offences after trial range from 12 to 24 months imprisonment. In this case the Crown seeks a global sentence in the low end of that range – 12 months jail.

[6] This case is part of Project Raphael, a project aimed at combatting the trafficking of young persons in York Region. Parity with other similar offenders is an important principle but the Crown submits that the comparison to persons who pleaded guilty isn't helpful. In the cases that were resolved by plea the Crown elected to proceed summarily and some involved pleas to different offences. All were joint submissions. In those cases there was not the specific finding that the accused knew the person was underage which involves a much higher level of moral blameworthiness.

[7] The Crown submits that the fact that the offences were inchoate – complete before any sexual act could have been committed and with no 15 year old girl on the other side of the hotel room door – is not a mitigating factor and cannot reduce sentence. Sentencing on both counts should be focused on general deterrence and denunciation and both require a significant custodial sentence.

[8] With respect to the exceptional circumstance referred to by the defence, the Crown submits that the court should not assume any particular outcome in relation to Mr. Haniffa's wife's matters. Given the nature of these offences, it's not exceptional that marital problems may be exacerbated. The same applies to the assertion that Mr. Haniffa may lose his employment. Those who choose to commit serious offences involving children must expect that a sentence of incarceration will follow. That is not exceptional or unusual.

The Defence Position

[9] A conditional sentence is not available on the luring charge – s.742.1(c). The defence submits that a 90 day intermittent sentence on the luring offence and a conditional sentence on the communication offence would be sufficient to meet the purpose and principles of sentencing in this case given exceptional circumstances.

[10] The defence submits that the exceptional circumstance in this case is the potential impact of a custodial sentence on Mr. Haniffa's family. The defendant says that a sentence of 12 months may cost him his employment. He and his wife are separated and while they both work, he has the higher income. Worse, their family difficulties have now resulted in his wife being charged with an offence in relation to her husband. The defence submits that it's now possible that both parents may be incarcerated. While general deterrence and denunciation are important, the destruction of a family is too high a price.

[11] The defence notes that some offenders in Project Raphael resolved their matters on guilty pleas to alternate offences for sentences within the intermittent range. Although they were allowed to plead to a different offence, the conduct was similar to Mr. Haniffa's and so the range of fit sentences for this conduct must include intermittent sentences (luring) and conditional sentences (communicate under 16). A "discount of 75%" from the range suggested by the Crown is too high for a guilty plea.

[12] The defence also argued that those who attempt consensual sex with an underage child working as a prostitute are committing a, "less morally reprehensible act" than those who attempt to have sex with an, "ordinary" child of the same age. The defence further submitted that there was no evidence Mr. Haniffa specifically knew about the horrors of child prostitution.

[13] The defence submits that an intermittent sentence followed by a conditional sentence for the communication offence remains available for the exceptional case – R v Folino, [2005] OJ No 4737 (CA).

Mitigating Factors

[14] The following factors mitigate sentence:

• Mr. Haniffa has no criminal record.
• He has a good history of employment.
• He has engaged in counselling with a Psychotherapist which predates these charges. Since the offences he has included counselling for his "behaviour on the night in question".
• He has expressed his remorse in a written statement filed as an exhibit on sentence. While this cannot be compared to those who express remorse by resolution prior to trial, it is still relevant to sentence.
• He continues to enjoy support from his family and his friends in the community.
• Mr. Haniffa served two days in pre-trial custody before release.

[15] With respect to the portion of counselling that related to these offences, it's not plain if the discussion was limited just to the one night as stated in the letter or whether it included the accused's regular engagement with prostitution for the 18 months prior to his arrest as he described at trial. Mr. Haniffa has been attending counselling since 2014, so the fact of counselling did not help him to avoid committing these offences but it may help him avoid repeating the same mistake in the future.

Aggravating Factors

[16] The fact that the accused's target was a 15 year old girl is a serious circumstance included in the two offences for which he's been convicted and not a further aggravating factor. The fact that the accused believed the person to be 15 is an important factor that distinguishes this case from others were lower sentences were imposed. There are further circumstances that aggravate sentence:

• The accused's description of invasive sexual acts he wished to engage in with the young girl.
• The accused's attendance to complete the transaction he arranged which distinguishes this case from others where the accused person did not follow up on their arrangement or plan.

Analysis

[17] It's important to begin consideration of sentence by acknowledging the two most important facts – child prostitution is a serious problem in York Region and this is exactly what child prostitution looks like. In the internet era child prostitution is hidden online and very difficult to track. However, in the Newmarket courthouse we've recently tried a number of cases involving young persons under 16 who were trafficked on the notorious "backpage.com" website. The circumstances of those offences were similar to this case, but the men who controlled the girls were careful not to mention their actual age. The moral blameworthiness is higher here where the accused specifically knew the person he was making arrangements with was 15. The fact that a police officer opened the door was fortunate for the community, but I agree with the Crown it does not diminish the significant culpability of Mr. Haniffa.

[18] In offences involving the abuse or potential abuse of a child, denunciation and general deterrence are paramount – R v AH 2018 ONCA 677 at para 52. Section 718.01 of the Criminal Code acknowledges this long-standing principle set by our Court of Appeal – R v Inksetter 2018 ONCA 474. I'm mindful that courts have few options other than imprisonment to achieve denunciation and deterrence in these types of cases – Inksetter at para 17.

[19] The Crown has provided ample authority for their submission that sentences for the luring offence typically range from 12 – 24 months imprisonment – R v Woodward 2011 ONCA 610, R v Jarvis, [2006] OJ No 3241 (CA), and the many cases that cite both. In cases with more aggravating features, the Court of Appeal has stated that the overall range may need to be revised to 3 – 5 years, R v Woodward, R v DM 2012 ONCA 520, R v Rafiq 2015 ONCA 768. Older cases discussing sentencing before the maximum sentence for luring was increased to 14 years and before Parliament signalled the gravity of the offence by imposing minimum sentences are now of limited assistance.

[20] Post-trial project Raphael cases have tended to result in custodial sentences at or close to the range suggested by the Crown. In R v Sarchami, (October 31, 2017), Ontario Court of Justice, Newmarket, Tetley J. (Unreported), the court imposed a 9 month jail sentence for communication with an officer posing as a 16 year old girl. The younger age in this case is an aggravating factor not present in Sarchami. The court imposed a 6 month concurrent sentence on the communication offence but the defence is correct that 6 months was the minimum legal sentence at the time and no alternative was considered.

[21] In R v Premanathan, (January 2, 2018), Ontario Court of Justice, Newmarket, Halikowski J. (Unreported), a global 14 month sentence was imposed. The offences involved similar communication with a person represented to be under the age of 15 years. There was a breach of recognizance in that case which resulted in a sentence above 12 months.

[22] In R v Kori, (April 10, 2018), Ontario Court of Justice, Newmarket, Regis J. (Unreported), the accused was found to have believed the person he was making arrangements with was a 15 year old girl. Like Mr. Haniffa, he expressed no concern for the girl but did mention a concern for himself that he didn't want to get into trouble. The court agreed that sentences for these offences range from 12 to 24 months and imposed a global sentence of 12 months. The fact that the sentence would have negative impacts on the accused's employment and potentially his ability to travel in the future did not constitute exceptional circumstances that justified a departure from that range.

[23] The defence notes that many of the project Raphael cases have been resolved by way of guilty pleas to sentences within the intermittent range. The defence submits that the difference between those sentences and the range submitted by the Crown provides too strong a "discount" for a guilty plea. The fact that others have received intermittent sentences for similar conduct must mean that such sentences are within the range, particularly where exceptional circumstances exist.

[24] It's not plain that the other resolutions show an exception to the established range of sentence where those offenders pleaded guilty to different offences on different facts including in earlier phases of the project, ages under 18 not under 16. Sentences were imposed on joint submissions after counselling and sometimes risk assessments. As the Crown's Book of Authorities shows at Tab 8, even in those circumstances significant custodial sentences could result. On May 6, 2015 Franklin Boodram was sentenced on Information 14-07884 to 7 months imprisonment on a guilty plea to communication with a person under 18 contrary to s.212(4).

[25] In R v Gucciardi 2017 ONCJ 770 an offender who communicated with an officer posing as a 14 year old girl was sentenced to 12 months imprisonment after guilty plea and after completing "extensive" sex offender counselling showing he was at a low risk to re-offend. The aggravating circumstances were found to be the accused's belief that the person was 14 and the deliberate plan towards meeting her for sex.

[26] Over 100 arrests were made during Project Raphael. Mr. Haniffa's trial began in June of 2017 and continued to September of 2018 including nine post-verdict applications. The Crown is entitled to resolve cases in the public interest including consideration of the impact similar trials would have on the administration of justice overall. The fact that some cases involving similar conduct were resolved on charges and facts such that an intermittent sentence on a joint submission was fit does little to assist Mr. Haniffa's request for a similar sentence where those limiting factors are not present.

[27] I strongly disagree with the defence submission that those who attempt consensual sex with an underage child working as a prostitute are committing a "less morally reprehensible act" than those attempting to have sex with what the defence termed an, "ordinary" child. At 15 children are not legally capable of consenting to sex. There is no consensual sex with children and the fact that vulnerable children are compelled to work as prostitutes makes them more worthy of protection not less. Anyone who seeks to use children for his own sexual gratification commits a morally reprehensible act regardless of the vulnerability of the child.

[28] I must also reject the submission that the lack of specific evidence that Mr. Haniffa knew of the serious problems associated with child prostitution reduces his blameworthiness. It doesn't take specific education or experience to understand that a 46 year old man should not be hiring a 15 year old girl for sex. It takes no imagination to understand the long-term impact that interaction would have on the child. As the text discussion showed, Mr. Haniffa simply didn't care.

[29] I agree with the defence that the collateral consequences of a sentence can be relevant. A sentence must be tailored not only to the circumstances of the offence but also to the circumstances of the offender including consequences that may flow from a sentence – R v Suter 2018 SCC 34 at paras 46-48. In that regard I've considered very carefully the impact of a sentence of imprisonment within the established range on Mr. Haniffa and his family.

[30] I agree with the defence that it's troubling that the family has undergone separation, although the letters submitted by his family and friends show that there were issues well before Mr. Haniffa was charged. I agree with the Crown that one can't presume that Mr. Haniffa's wife will be found guilty of the charge she faces or that any such finding would result in a custodial sentence that would require the children to live with relatives. However, even with the few details shared in submissions, I do accept that the family is going through difficult times and that the incarceration of Mr. Haniffa would add to their burden.

[31] For that important reason I've considered whether that circumstance is exceptional such that it justifies the proposed reduced global sentence to the intermittent range followed by a conditional sentence. Despite the very able submissions of Mr. Bytensky, after much deliberation I find that reducing the sentence to that point would be inconsistent with the range of sentence for this offence and inconsistent with sentences imposed on other offenders as discussed above.

[32] Further, such a global sentence would not give sufficient weight to denunciation or deterrence. While it would assist in the rehabilitation of the accused, it would do little to promote a sense of responsibility for the offences. It would be inconsistent with the goal of protection of vulnerable children in s.718.01. It would not be proportionate to the gravity of the offence or the degree of responsibility of this offender. Sentences imposed in these cases have to reflect the fact that these offences destroy lives.

[33] Mr. Haniffa's wife is employed and as shown in the letters provided to the court he has a strong network of family and friends. In every case where offenders are sentenced to imprisonment there are collateral consequences to the offender and their families. Mr. Haniffa's circumstances are not exceptional in that sense. While I've given careful thought to the impact of imprisonment at a time of difficulty within the family, I find that concern for potential collateral consequences cannot justify the imposition of an unfit sentence for these serious offences.

Sentence

[34] 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.

[35] On the s.286.1(2) count regarding communicating for the purpose of obtaining the sexual services of a person under the age of 18 years, Mr. Haniffa is sentenced to a term of imprisonment of 6 months to be served concurrently for a total custodial sentence of 12 months. I've considered the time served in arriving at the global sentence.

[36] The custodial sentence will be followed by a period of probation for 2 years on the following terms:

• Keep the peace and be of good behaviour.
• Appear before the court when required to do so.
• Notify your probation officer in advance of any change of name or address or employment status.
• Report to probation within five business days of your release from custody and thereafter as required by the probation officer.
• Reside at an address approved of by probation.
• Take counselling with respect to sexual offences against children as directed by your probation officer and sign any releases necessary to permit the probation officer to monitor your attendance and completion of counselling.
• You shall not access any internet dating site or site that includes advertisements for escorts or prostitution.
• You shall not attend in any hotel, motel, Airbnb or similar rental accommodation except as required for business purposes with 24 hour prior notification in advance to your probation officer or for family purposes when in the direct company of your children.
• You shall not seek, obtain or continue any employment, whether or not that is remunerated or a volunteer position, that involves being in a position of trust or authority towards a person under the age of 16 years.
• You're not to have any contact – including communication by any means – with a person who is under the age of 16 years except for your children or except in the presence of another person 21 years of age or older.

[37] Given the time the accused has spent on bail with s.161 conditions and the circumstances of these offences I find including certain similar terms in the probation order is sufficient and I don't find it necessary to make a further s.161 order.

[38] The fact of two convictions for relevant offences engages s.490.013(2.1) which requires that a SOIRA order be imposed for life. Both offences are primary designated offences so Mr. Haniffa is ordered to provide a sample of his DNA for registration on the national databank. There will also be a victim fine surcharge as provided by statute. The Crown application for forfeiture of the cellphone and cash seized as offence related property is granted.

Delivered: 29 October, 2018

Hon. Joseph F. Kenkel