Her Majesty the Queen v. Safieh; Covenant House Toronto, Intervenor
[Indexed as: R. v. Safieh]
Ontario Reports Ontario Superior Court of Justice, McKelvey J. July 20, 2018 142 O.R. (3d) 592 | 2018 ONSC 4468
Case Summary
Charter of Rights and Freedoms — Cruel and unusual treatment or punishment — Mandatory minimum five-year sentence for procuring person under 18 to provide sexual services grossly disproportionate in reasonable hypothetical circumstances — Mandatory minimum sentence unjustifiably violating s. 12 of Charter and being of no force or effect — Canadian Charter of Rights and Freedoms, s. 12.
The accused met a 16-year-old girl who was living in a group home, persuaded her to become a prostitute, and invited her and another underage girl to meet him in a hotel room, where he photographed them in various stages of undress in order to advertise their services on the Internet. The police intervened before the photos were displayed online and before the girls actually became involved in prostitution. The accused was convicted of a number of offences, including two counts of procuring a person under 18 to provide sexual services, which attracted a mandatory minimum five-year sentence under s. 286.3(2) of the Criminal Code, R.S.C. 1985, c. C-46. The accused brought an application challenging the constitutionality of the mandatory minimum sentence.
Held, the application should be allowed.
The mandatory minimum five-year sentence would be grossly disproportionate in the following reasonable hypothetical circumstance: an 18-year-old prostitute who was exploited and manipulated by a pimp when she was a minor and who is working for her pimp in order to pay off drug debts recruits her 17-year-old friend to work as a prostitute at the behest of her pimp, expecting no financial gain or other benefit from doing so. In that hypothetical, the appropriate sentence could reasonably be assessed in the range of two to 2.5 years. The mandatory minimum sentence violates s. 12 of the Canadian Charter of Rights and Freedoms. The violation is not justified under s. 1 of the Charter. The minimal impairment requirement is not met as Parliament could have achieved its objective by drafting an offence with a close correspondence between conduct attracting significant moral blameworthiness and the mandatory minimum. The mandatory minimum sentence is of no force or effect.
R. v. Lloyd, [2016] 1 S.C.R. 130, 2016 SCC 13; R. v. Nur, [2015] 1 S.C.R. 773, 2015 SCC 15, apld
R. v. D. (D.) (2002), 58 O.R. (3d) 788, 163 C.C.C. (3d) 471 (C.A.); R. v. Robitaille, 2017 ONCJ 768, consd [page593]
Other cases referred to
R. v. Burton, 2013 ONSC 3021 (S.C.J.); R. v. Byron, 2014 ONSC 990 (S.C.J.); R. v. Finestone, 2017 ONCJ 22; R. v. Forcillo, 2018 ONCA 402, affg 2016 ONSC 4896 (S.C.J.); R. v. Inksetter (2018), 141 O.R. (3d) 161, 2018 ONCA 474; R. v. Lacasse, [2015] 3 S.C.R. 1089, 2015 SCC 64; R. v. McDonald (1998), 40 O.R. (3d) 641, 127 C.C.C. (3d) 57 (C.A.); R. v. Swaby, 2016 ONCJ 844; R. v. Webster, 2016 ONCJ 845
Statutes referred to
Canadian Charter of Rights and Freedoms, ss. 1, 12 Constitution Act, 1982, Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 52 Criminal Code, R.S.C. 1985, c. C-46, ss. 286.3(1), (2), 655, 718.01, 718.3(7)(b) Youth Criminal Justice Act, S.C. 2002, c. 1
Authorities referred to
Annitto, Megan, "Consent, Coercion, and Compassion: Crafting a Common Sense Approach to Commercial Sexual Exploitation of Minors", Yale Law and Policy Review, Vol. 30, 2011
APPLICATION for a declaration of invalidity.
Michael Ventola, for Crown. Stacey Taraniuk, for defendant. Christopher Burkett and Peter MacKay, for intervenor Covenant House Toronto.
MCKELVEY J. : —
Introduction
[1] The defendant in this case pleaded not guilty to a series of sex-related offences. He was found guilty, however, based on an agreed statement of facts which was presented to the court pursuant to s. 655 of the Criminal Code, R.S.C. 1985, c. C-46 and which admitted all of the essential elements for all of the offences charged. Two of the offences that the defendant was convicted of were pursuant to s. 286.3(2) of the Criminal Code, which provides as follows:
286.3(2) Everyone who procures a person under the age of 18 years to offer or provide sexual services for consideration or, for the purpose of facilitating an offence under subsection 286.1(2), recruits, holds, conceals or harbours a person under the age of 18 who offers or provides sexual services for consideration, or exercises control, direction or influence over the movements [page594] of that person, is guilty of an indictable offence and liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of five years.
[2] Section 718.3(7)(b) of the Criminal Code requires that when a court sentences an accused for more than one sexual offence committed against a child, the court shall direct that the sentence of imprisonment it imposes for a sexual offence committed against another child shall be served consecutively. The effect of this provision is that the accused would be required to serve two consecutive five-year sentences under s. 286.3(2) because each of the two counts he faced under this section involved different complainants. The accused's position is that with the mandatory prison sentence of five years under s. 286.3(2) and the requirement for consecutive sentences under s. 718.3(7)(b) constitute cruel and unusual punishment and that both these provisions of the Criminal Code should be declared invalid under s. 12 of the Canadian Charter of Rights and Freedoms.
[3] The constitutional questions raised by the accused are therefore as follows:
(1) Does the five-year mandatory minimum jail sentence for all offenders under s. 286.3(2) of the Criminal Code violate s. 12 of the Charter?
(2) Does the consecutive sentencing regime under s. 718.3(7)(b) of the Criminal Code for all offenders violate s. 12 of the Charter?
(3) If the answer to these questions is yes, can the five-year minimum and consecutive sentences be saved from a declaration of constitutional invalidity pursuant to s. 1 of the Charter?
[4] It was agreed by the parties that initially I would deal only with the issue of whether the five-year mandatory minimum under s. 286.3(2) violates s. 12 of the Charter and, if so, whether it can be saved from a declaration of constitutional invalidity pursuant to s. 1 of the Charter. Based on my decision on this issue, it may or may not be necessary to deal with the consecutive sentencing regime under s. 718.3(7)(b).
Background
[5] According to the agreed statement of fact, the accused came into contact with an underage female living in a group home who was 16 years old. He persuaded her to become a child prostitute with promises of drugs and money. He arranged to meet with the minor at a hotel room. Prior to this meeting, the complainant [page595] advised the accused that there was another underage girl interested in working for him. The accused invited both underage girls to attend at the hotel room. He explained to them at this meeting that he would rent the hotel rooms for them and that they were to immediately turn over all the money to him. He told the two girls about another young girl who was working as a prostitute and was beaten when she failed to turn all of the money over to her pimp. The accused proceeded to take photographs of the two girls in various stages of undress in order to advertise their services on the Internet. As the accused was finishing with the photographs, two police officers knocked on the hotel room door. The police had been called by the group home to report the girls missing. The police officers escorted the girls down to the police cruisers. The accused was arrested by police approximately four days later. Because of the police intervention, the photographs of the two girls were never released on the Internet, nor were the two young girls actually involved in prostitution because of the early intervention of the police.
Applicable Legal Principles
[6] The Supreme Court has set out the approach to be followed in determining what constitutes cruel and unusual punishment under s. 12 of the Charter. In R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, [2015] S.C.J. No. 15, the court set a high bar for what constitutes cruel and unusual punishment under s. 12 of the Charter. A sentence attacked on this ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender. In order to be "grossly disproportionate", a sentence must be more than merely excessive. It must be so excessive as to outrage the standards of decency and be abhorrent or intolerable to society. See R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, [2016] S.C.J. No. 13, at para. 24.
[7] In R. v. McDonald (1998), 40 O.R. (3d) 641, 127 C.C.C. (3d) 57 (C.A.), [1998] O.J. No. 2990 (C.A.), the Ontario Court of Appeal commented that a sentence which is merely excessive, or even unfit, is not necessarily grossly disproportionate. Further, the court stated [at para. 68],
[I]t is unwise to simply measure gross disproportionality against a current sentencing regime. Subject to constitutional limits, it is open to Parliament to create new offences or aggravated forms of existing offences with enhanced punishment. Unless the punishment runs afoul of constitutional limits, it is not for the courts to debate the wisdom, or otherwise, of the new sentencing regime. This applies as much to minimum punishments as to other forms of legislated policy. The Supreme Court of Canada has held in R. v. Smith that minimum punishments per se do not violate either s. 9 or s. 12 of the Charter. The Court has also held in [page596] Steele v. Mountain Institution (Warden), [1990] 2 S.C.R. 1385 at p. 1417 that it will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate as to offend s. 12.
[8] At para. 46 of the Nur decision, the Supreme Court sets out the process to be followed in a challenge to a mandatory sentencing provision. 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. Second, 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 to that question is yes, the mandatory provision is inconsistent with s. 12 and will fall unless justified under s. 12 of the Charter.
[9] In determining what constitutes a proportionate sentence for the offence, the court may consider "reasonable hypotheticals". A court is not, therefore, limited to making a decision based on the actual facts in a particular case. Instead, the court's review is expanded to reasonable hypothetical situations where the mandatory minimum sentence may apply. The court in Nur concluded that the reasonable hypothetical targets circumstances that are foreseeably captured by the minimum conduct caught by the offence. Only situations that are "remote" or "far-fetched" are excluded. The court goes on to state that this would exclude using personal features to construct the most innocent and sympathetic case imaginable [at para. 75]: "on that basis almost any mandatory minimum could be argued to violate s. 12 and lawyer ingenuity would be the only limit to findings of unconstitutionality". On the other hand, the inquiry into reasonably foreseeable situations [at para. 76] "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".
[10] The selection of reasonable hypotheticals is a critical consideration for the court. In the present case, two reasonable hypotheticals have been proposed and accepted by the Crown. The focus for considering the mandatory minimum in the present case deals only with an offender who procures a person under the age of 18 years to offer or provide sexual services for consideration; the other potential conduct caught under s. 286.3(2) has not been subject to review and argument by the parties.
[11] The Supreme Court has also made it clear that mandatory minimum sentences that apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge. This is because such laws will almost inevitably include an [page597] acceptable reasonable hypothetical for which the mandatory minimum will be found unconstitutional (see R. v. Lloyd, supra, at para. 35). In the Lloyd decision, the Supreme Court notes that, "If Parliament hopes to sustain mandatory minimum penalties for offences that cast a wide net, it should consider narrowing their reach so that they only catch offenders that merit the mandatory minimum sentences." Despite the suggestion by the Supreme Court that Parliament build a safety valve that would allow judges to exempt outliers for whom the mandatory minimum will constitute cruel and unusual punishment, this suggestion has not yet been taken up by Parliament.
The Reasonable Hypotheticals
[12] The accused has proposed two reasonable hypotheticals in this case. The Crown has agreed that these hypotheticals are reasonable. The hypotheticals do not have much similarity to the facts in this case. Many of the aggravating factors in the present case have been removed and replaced by much more sympathetic factors. The two proposed reasonable hypotheticals which have been proposed in this case and which I accept are as follows:
(1) An 18-year-old procures his 17-year-old girlfriend into prostitution in a scenario that is free from coercion, the offer of drugs, threats or actual sex. The procurement is so that the couple can support themselves in a situation in which the 17-year-old is not coerced, no offer of drugs is made, they agree to distribute the proceeds equitably and this situation ends before any sexual services are provided and money exchanges hands.
(2) After having begun negotiating with a pimp via text messaging in order to work for him so she can pay off her drug debts, an 18-year-old prostitute, at the behest of her pimp, approaches her 17-year-old friend to see if she also wants to act as a prostitute for the pimp. The older girl is aware that the younger girl also has drug debts of her own. The younger girl jumps at the opportunity. The 18-year-old then brings the 17-year-old along with her for a face to face meeting with the pimp with the knowledge that the purpose of the meeting is for the pimp to continue recruiting herself and to recruit the 17-year-old. During the meeting the pimp addresses the nature of the working relationship he will have with both girls. The pimp himself had no direct contact with the 17-year-old until they actually met in person. As such, the 18-year-old directly assisted the pimp in recruiting the 17-year-old. The 18-year-old prostitute expects no financial [page598] gain or any other benefit from bringing the younger girl to the meeting. The 18-year-old prostitute is the product of the group home system and had been manipulated, exploited and prostituted by a pimp when she was a minor.
Analysis
[13] It is apparent that the offence in s. 286.3(2) of the Criminal Code has a significantly narrower scope than some other provisions which have been found to violate s. 12. In Nur, the offence under consideration cast a net over a wide range of potential conduct arising out of the possession of firearms. At one end of the range was a person engaged in truly criminal conduct which posed a real and immediate danger to the public. At the other end of the range stood the licensed and responsible gun owner who made a mistake as to where his gun could be stored. Under s. 286.3(2), the offence is limited to someone who procures a person under the age of 18 years to offer or provide sexual services for consideration. The offence is directed, therefore, to someone who procures a minor for the purpose of having the minor either provide or offer prostitution services. This offence does not punish people who are merely running afoul of administrative requirements. It punishes those who are involved in serious sexual abuse of children. This is not a trivial matter. The recruitment of children into the world of prostitution is a legitimate and serious concern for Parliament to address.
[14] The offence does, however, potentially cover a wide range of people. On the one hand, it captures individuals who physically and emotionally abuse young vulnerable children for their own financial benefit. On the other hand, the offence could capture youthful sex trade workers who have been victims themselves of exploitation at the hands of their pimp. This latter category is captured in the second hypothetical proposed by the accused.
[15] In accordance with the process set out in Nur, supra, the first issue which needs to be addressed is the sentencing range for a reasonable hypothetical framed at a fairly high level of generality. The accused in the reasonable hypotheticals presented has removed a number of aggravating factors which are normally associated with this offence. So, for example, in the first hypothetical an 18-year-old procures his 17-year-old girlfriend into prostitution that is free from coercion, the offer of drugs, threats or actual sex. The minor involved is only one year away from the age of majority.
[16] In assessing whether a mandatory minimum sentence is grossly disproportionate I must consider the general principles of sentencing. The sentence imposed must be proportionate to the [page599] gravity of the offence and the degree of responsibility of the offender. Proportionality is best determined by considering all of the aggravating and mitigating factors while keeping in mind the objectives of sentencing which include
(1) general and specific deterrence;
(2) denunciation;
(3) rehabilitation;
(4) reparation to society and/or the victim;
(5) separation from society where necessary;
(6) the need to promote a sense of responsibility in offenders;
(7) an acknowledgment of the harm done to victims and the community.
[17] Under s. 718.01 of the Criminal Code, when a court imposes a sentence for an offence that involves the abuse of a person under the age of 18 years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. This is also reflected in the case law. In R. v. Byron, 2014 ONSC 990 (S.C.J.), Warkentin J. comments, at para. 36:
All cases of this nature must be taken very seriously. Young people must be protected from being trafficked, exploited and abused in this fashion. Sadly, in this era of social media and the use of the internet, the on line advertisements for sexual services continually victimize those who have been forced into prostitution against their will because it is impossible to remove those images from the internet. This is particularly tragic when the individual is a minor, as was IB.
[18] It is beyond doubt that severe harm can be caused even by the least serious cases of child trafficking. The horrors and evils of child prostitution are well documented both in the case law and in the academic literature which has been referenced by the intervenor. In R. v. Burton, 2013 ONSC 3021 (S.C.J.), Trotter J. (as he then was) stated [at para. 10]:
Secondly, as part of its submissions, the Crown emphasized the horrors and evils of prostitution, especially when young persons such as A.T. become ensnared in this dark and dangerous world. The social ills and dangers associated with prostitution, and juvenile prostitution in particular, are well-recognized and accepted by social science, and reflected in the legal literature and Canadian jurisprudence.
[Citations omitted] [page600]
[19] It is apparent, however, that actual prostitution of the minor is not an essential element of the offence. It has been removed from the first reasonable hypothetical which also states that the situation is free from coercion, the offer of drugs or threats. The accused argues that an offender should not be subject to punishment for consequences which have not occurred. During argument he also raised a further issue suggesting that an accused could be convicted of the offence even though the complainant might have a past history of prostitution which would be a further mitigating factor.
[20] While I agree that all of these factors are relevant and need to be considered, there are other factors which suggest their effect is limited in the context of the mandatory minimum for this offence. First, the most important principles which should apply to adult sexual predators who exploit innocent children are the sentencing objectives of denunciation, general and specific deterrence and the need to separate offenders from society. This is reflected in the Ontario Court of Appeal decision in R. v. D. (D.) (2002), 58 O.R. (3d) 788, 163 C.C.C. (3d) 471 (C.A.), at paras. 34 and 35, where the court states:
The overall message however, is meant to be clear. Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718 (a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society, must take precedence over the other recognized objectives of sentencing.
We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and, as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.
[21] Although the decision in R. v. D. (D.), supra, dealt with a case of indecent and sexual assault, the comments in this and other cases in my view are applicable when considering the mandatory minimum in the present circumstances. It is also significant to note the court's comments in R. v. D. (D.), supra, with respect to sentencing. At para. 44 of their decision, the Court of Appeal states:
To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of [page601] physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted.
Hypothetical #1
[22] In the first hypothetical, it is stated that an 18-year-old boyfriend procures his 17-year-old girlfriend into prostitution, apparently as part of a joint venture between the two. This scenario ignores the reality as noted in R. v. D. (D.), supra, that minors are easy prey. It also suggests the older person is taking advantage of the trusting relationship with his girlfriend for his own benefit. In an article submitted by the intervenor entitled "Consent, Coercion, and Compassion: Crafting a Common Sense Approach to Commercial Sexual Exploitation of Minors" by Megan Annitto published in the Yale Law and Policy Review, it notes that many factors can prevent a young girl from realizing that she is being exploited or from recognizing the dangers she faces. The pimp will often act as a "boyfriend" promising love and a better life and preying on young girls' previously identified vulnerabilities. The article refers to information from a trafficker and states: "One convicted trafficker recently quoted from prison described chillingly, aewith young girls, you promise them heaven, and they'll follow you to hell'".
[23] I therefore conclude that the relationship of boyfriend/girlfriend in hypothetical #1 does little to mitigate the moral culpability of the offender. Instead, it shows a callous disregard on behalf of the offender for the welfare of his girlfriend who is a minor.
[24] The fact that no sex actually occurs in hypothetical #1 can reasonably be expected to have a mitigating effect on sentence. However, in order to make a finding of guilt under the relevant portion of s. 286.3(1), the Crown need not establish that the complainant has actually been trafficked and provided sexual services for consideration. However, the Crown must prove that procurement has occurred. It therefore follows that if sexual services are not provided, it is because there has been some intervention before those sexual services are provided. In the present case, it was the police who intervened before sexual services could be provided. In other cases such as R. v. Burton, supra, the complainant told the offender that she wasn't interested. In either scenario, the moral culpability of the offender remains high and the relevant sentencing principles which focus on denunciation, general and specific deterrence and the need to separate offenders [page602] from society suggest the mitigating effect of the fact that no sex has occurred is limited.
[25] In both hypotheticals, the complainant is 17 years old, reflecting that both the accused and the victim are close to the age of majority. Parliament has chosen for purposes of these provisions to recognize that persons under the age of 18 years have a special need for protection. While it must be recognized that youth may mature at different ages, it was reasonable for Parliament, in my view, to determine that persons under the age of 18 years merit special protection, especially in the context of sexual exploitation. Similarly, it was reasonable for Parliament to hold an individual accountable for his or her actions once they have reached the age of 18. At the same time, I recognize that an offender of age 18 will likely derive some benefit from his or her age as a mitigating factor.
[26] The case law with respect to sentences for child procurement into prostitution suggest that lengthy terms of imprisonment are associated with convictions for this offence.
[27] In R. v. Burton, supra, the court dealt with an offender who tried to recruit a 16-year-old minor. The complainant told the offender that she was not interested. The accused told her to think about it and it was left at that. The court found that the commission of the offence did not involve the use or attempted use of violence nor did it amount to conduct endangering or likely to endanger safety or life. There was no evidence to suggest that the accused's behaviour had a severe psychological impact on the complainant. The accused did, however, have a lengthy criminal record including 23 crimes of violence, two sexual assaults as well as numerous prostitution related offences. In light of the accused's persistent behaviour and the real fear of repetition, Trotter J. stated that he was tempted to impose a sentence in the five-to six-year range with the view to finally bringing home to Mr. Burton the seriousness of his crimes and to deter others. However, he opted for a longer period of control over his life and after crediting him with 23 months of pretrial custody, he imposed an additional sentence of two years for a total of 47 months.
[28] In R. v. Finestone, 2017 ONCJ 22, Greene J. commented that courts have held that a sentence of four to five years is usually appropriate where the offender has coerced adult victims into becoming or remaining a prostitute and has exercised a significant control over her activities. He further states that when one takes into account the additional aggravating factor of the victim's young age, a sentence in the area of five years or more would normally be appropriate. In that case, [page603] Greene J. concluded that in light of the accused's personal circumstances and keeping in mind the need to focus on deterrence and denunciation a sentence of four years was imposed.
[29] The Crown has also referred to the decisions in R. v. Swaby, 2016 ONCJ 844 and R. v. Webster, 2016 ONCJ 845. Both of these cases involved procuring allegations of minors and a joint sentencing submission of four years from both Crown and defence. In the Swaby case, it is noted that the accused was not the person at a shopping centre who initially met the girls, nor was he the person who was in charge of the prostitution scheme overall. He was, however, a full and active participant in the joint prostitution scheme and received oral sex from an underage girl. In the Webster case, the accused received oral sex from an underage girl, took photos of the girls to post on the Internet ads and was present when the girls were installed at a motel and instructed how to receive clients. Justice Kenkel found [at para. 17] that a "global 4 year sentence is the minimum sentence that would meet the purpose and principles of sentencing in this case".
[30] It is apparent in reviewing the relevant case law that sentences generally for sexual exploitation of minors have increased over the years as the harms associated with these offences have become better known. Having considered the mitigating factors involved in hypothetical #1, I have concluded that the sentencing range for the hypothetical would be somewhere in the area of four years.
[31] I turn now to a consideration of whether the five-year mandatory minimum represents a grossly disproportionate sentence in connection with hypothetical #1. In this regard, the accused raises a further issue which needs to be addressed. Specially, the accused suggests that if the accused were a minor, the maximum sentence under the Youth Criminal Justice Act, S.C. 2002, c. 1 would be two years. However, if tried as an adult, the offender would be subject to a mandatory minimum of five years. The accused drew an analogy where the prosecution had the discretion to proceed either by way of summary conviction or indictment. However, there is a significant difference in the hypothetical situation posed by the accused. Unlike prosecutorial discretion which a court has no control over, it is presumed that a judge will follow the law. It is reasonable to assume that a judge would only sentence a young person to an adult sentence if it were appropriate to do so. If an error is made in this regard, it is reasonable to conclude that that error will be corrected by the appellate court. [page604]
[32] Further, if the accused's submissions on this issue were accepted, it would follow that every mandatory minimum in the Criminal Code would be unconstitutional because there is a "risk" that a jurist could inappropriately impose a mandatory minimum sentence on a minor. This is not consistent with the case law which has developed. These circumstances in my view fall under the category of remote or far-fetched. They should therefore be excluded from consideration.
[33] Based on my conclusion that four years is an appropriate sentencing range for hypothetical #1, I must now consider whether the mandatory minimum of five years constitutes cruel and unusual punishment under s. 12 of the Charter. I have concluded that the mandatory minimum is not grossly disproportionate under that factual scenario, such that Canadians would find the punishment abhorrent or intolerable or excessive to the point where it would outrage our society's sense of decency. While a sentence of four years is below the mandatory minimum set by Parliament, the difference between the sentencing range for this hypothetical and the mandatory minimum is not substantial. Parliament's imposition of the mandatory minimum reflects society's ever-increasing intolerance for the sexual abuse of children and reflects a growing recognition of the harm associated with these types of offences. I therefore conclude that hypothetical #1 does not support a conclusion that a five-year minimum sentence for the offence constitutes cruel and unusual punishment under s. 12 of the Charter.
Hypothetical #2
[34] Hypothetical #2 focuses on the circumstances of a potential offender. It contemplates a young offender who is herself a prostitute who assisted in the procurement of an underage minor for prostitution. It is assumed that the offender has herself been the subject of exploitation and manipulation while she was a minor. This factual scenario is neither remote nor far-fetched. It bears a striking similarity to the facts in R. v. Robitaille, 2017 ONCJ 768. The court provided a copy of this decision to counsel after their initial submissions and solicited further input from the parties. Ms. Robitaille was found guilty of receiving a material benefit from the sexual services of two minors, pursuant to s. 286.2(2) of the Criminal Code. At the time of the offences, Ms. Robitaille was a sex trade worker. She was charged jointly with another defendant who was her pimp. Ms. Robitaille believed herself to be in love with her pimp. She assisted her pimp, who forced a minor to work as a prostitute. Ms. Robitaille provided instructions to the minor about how to [page605] act with customers, what type of services to perform and other relevant information about how to engage in prostitution. She also shared with her pimp some of the proceeds of this prostitution. With respect to the to the other count, Ms. Robitaille contacted a minor who was 16 years old at the time and spoke about her work as an escort. She facilitated the recruitment of this individual and instructed her on how to dress and what to do. After the minor left the hotel where she had been placed, Ms. Robitaille telephoned and sent text messages to her demanding that the victim return to the hotel. At the time of these offences, Ms. Robitaille was 18 years old.
[35] The decision also describes Ms. Robitaille's background. When she was approximately 16 years old she started to work in the sex trade. She suffered numerous acts of sexual violence in her childhood. According to an expert psychologist who assessed Ms. Robitaille prior to the sentencing hearing, Ms. Robitaille was unable to empathize with her victims. She was only able to see them as her competition. According to the expert, Ms. Robitaille's prior history of sexual abuse and victimization in the sex trade interfered with Ms. Robitaille's judgment. The trial judge in this case found that at the time the offences occurred, while Ms. Robitaille was an adult, she was still being sexually exploited.
[36] The mandatory minimum sentence for the offences in the Robitaille case was two years. The trial judge concluded that the mandatory minimum sentence for Ms. Robitaille was grossly disproportionate to the facts of the offence and sentenced Ms. Robitaille to eight months in custody concurrent on both counts.
[37] The Crown's position is that the Robitaille decision related to offences which are far less serious than the procuring offence, which is the offence under consideration in the case before me. The Crown argues that as the seriousness of the offence increases, the circumstances of the offender become significantly less relevant, especially where the main focus for the sentence should be denunciation and general deterrence. The Crown also suggested that the eight months sentence given in Robitaille was far too low.
[38] Both the Crown and the intervenor also argued that the offender in hypothetical #2 could be expected to have first-hand knowledge of at least some of the risks of harm that exist in the sex trade. It was therefore suggested that the moral culpability of such an offender is not significantly reduced by her prior history of involvement in the sex trade. On the contrary, an offender in this scenario would know better than most of the harm that was likely to ensue from her actions. [page606]
[39] I agree that there is some basis to question the correctness of the sentence of eight months which was arrived at in the Robitaille decision. While the offences which were the subject of the sentence were limited to receiving a financial benefit, the factual circumstances went far beyond that offence and appear to be close to the essential elements of procurement which is the offence being considered in this case.
[40] In the recent Court of Appeal decision in R. v. Inksetter (2018), 141 O.R. (3d) 161, 2018 ONCA 474, the court reinforced the importance of denunciation and general deterrence in cases involving the sexual abuse of a child. In overturning a trial judge's decision on sentence, the court noted that the trial judge gave primary effect to the objective of rehabilitation, rather than the objectives of denunciation and general deterrence. The court states, at para. 16:
By enacting s. 718.01 of the Criminal Code, Parliament made clear that denunciation and general deterrence must be primary considerations for any offence involving the abuse of a child. Further, this Court has repeatedly stated that denunciation and general deterrence are the primary principles of sentencing for offences involving child pornography.
[Citations omitted]
[41] The decision goes on to note that courts have very few options other than imprisonment to achieve the objectives of denunciation and general deterrence.
[42] Having said that, however, even where the primary focus for a sentence involving sexual abuse of a child will be on denunciation and general deterrence, it must be recognized that there are cases which not only justify, but require a sentence which is below the accepted range, even in a situation where denunciation and general deterrence are the principle factors for purposes of sentencing.
[43] In the decision of R. v. Lacasse, [2015] 3 S.C.R. 1089, 2015 SCC 64, [2015] S.C.J. No. 64, the Supreme Court deals with some general principles with respect to sentencing. It comments that the severity of a sentence will depend not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. It also notes that there will always be situations that call for a sentence outside a particular range.
[44] As noted previously, in R. v. D. (D.), supra, Moldaver J. (as he then was), in commenting on adult sexual predators in the context of the sexual abuse of children, comments that there may be "exceptional circumstances" which need to be considered and which would justify a sentence below the accepted range.
[45] I agree with the Crown that in general, the personal circumstances of the offender in a case involving child sexual abuse [page607] are of limited benefit to the offender. In R. v. Forcillo, 2016 ONSC 4896 (S.C.J.), Then J. comments that the gravity of an offence and the concern for public safety, which underlie the principles of deterrence and denunciation may [at para. 125] "ultimately trump even very sympathetic personal characteristics in assessing whether a sentence is grossly disproportionate". This decision was recently affirmed on appeal by the Court of Appeal at 2018 ONCA 402. However, what remains to be considered is whether the factual circumstances in hypothetical #2 as amplified by a consideration of the Robitaille decision, represent special circumstances which justify a significant reduction from the usual sentencing range.
[46] I do not accept the suggestion that a youthful prostitute who has first-hand knowledge of the risks and harms that exist in the sex trade has a similar level of moral culpability because of her own first-hand knowledge of the risks of harm in the sex trade. I conclude that the level of moral culpability can be substantially lower as reflected in the Robitaille decision. The offender in Robitaille was a victim herself. There was no meaningful gap in time between her exploitation and the commission of her offences. The court recognized that she continued to be a victim of abuse even at the time the offences were committed Further, her victimization as a child abuse victim interfered with her judgment and caused an inability to empathize with her victims. In other words, there was a clear link between the sexual abuse she suffered as a child and the offence she committed. While the court must still recognize that the principle factors to consider on sentencing are denunciation and general deterrence, the circumstances in a case like Robitaille would in my view constitute exceptional circumstances as contemplated by Moldaver J. in R. v. D. (D.), supra, and would serve to reduce the appropriate sentence to well below the normal range. The failure to take these special circumstances into account would serve only to re-victimize the offender and punish her based on her prior sexual abuse as a child. I conclude this is not consistent with the underlying objective of the mandatory minimum which is related to the protection of the children in our society. It is also not consistent with general sentencing principles as outlined by the Supreme Court in sentencing on R. v. Lacasse, supra.
[47] I therefore conclude that in the context of hypothetical #2, the appropriate sentence would be well below the normal range and could reasonably be assessed in the range of two to two-and-a-half years. I find that a sentence in this range which is half or less than half of the mandatory minimum would be [page608] grossly disproportionate. It would represent a result that is abhorrent or intolerable to society by harshly punishing those whose conduct has at least in part been affected by society's failure to protect them in their childhood. For these reasons, I find that the factual scenario in hypothetical #2 justifies a conclusion that the five-year minimum provided for under s. 286.3(2) of the Criminal Code does violate s. 12 of the Charter.
Analysis Under S. 1 of the Charter
[48] Given my conclusion above, I still am required to consider whether the Crown can justify the infringement of the accused's s. 12 rights under s. 1 of the Charter. As noted in the Nur decision, the Crown must show that the law has a pressing and substantial objective and that the means chosen are proportional to that objective. A law is proportionate if (1) the means adopted are rationally connected to that objective; (2) it is minimally impairing of the right in question; and (3) there is proportionality between the deleterious and salutary effects of the law.
[49] For the reasons set out in the Nur decision, I accept that the first requirement under the above noted test has been met. However, the minimal impairment test has not been satisfied as Parliament could have achieved its objective by drafting an offence with a close correspondence between conduct attracting significant moral blameworthiness and the mandatory minimum, rather than a sweeping law that includes in its ambit conduct which attracts far less blameworthiness for which the mandatory minimum sentence would be grossly disproportionate. I conclude, therefore that the Crown has not discharged its burden on the minimal impairment test. Neither has the Crown satisfied the proportionality test for the same reason.
Conclusion
[50] I have therefore concluded that the mandatory minimum sentence imposed by s. 286.3(2) is inconsistent with s. 12 of the Charter and is therefore declared of no force or effect under s. 52 of the Constitution Act, 1982.
Application allowed.
End of Document