Court File and Parties

COURT FILE NO.: 14315/16 DATE: 20181130

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: Her Majesty the Queen - and - Deshon Tarone Boodhoo, Kemoy Clayton Chisholm and Keon Anfernee Chisholm

Counsel: Heather Cook and Samantha Herbert, for the Crown Daniel Varilone, for Deshon Boodhoo Sarah Malik and Joanne Griffiths, for Kemoy Chisholm Chris Rudnicki, for Keon Chisholm

Heard: June 21, 2018

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the victim may not be published, broadcast or transmitted in any manner. This judgment complies with this restriction so that it can be published.

Bale J.:

Overview

[1] A jury found Deshon Boodhoo, Kemoy Chisholm and Keon Chisholm guilty under Criminal Code ss. 286.2(2) (receiving material benefit from sexual services provided by a person under the age of 18 years), and 286.3(2) (procuring a person under the age of 18 years). In addition, Deshon Boodhoo and Keon Chisholm were found guilty under s. 163.1(3) (distributing child pornography), and 286.4 (advertising sexual services).

[2] The Code provides for mandatory minimum sentences of two years for a conviction under s. 286.2(2), five years for a conviction under s. 286.3(2), and one year for a conviction under s. 163.1(3). The applicants challenged the constitutionality of each of these mandatory minimums, arguing that they violate s. 12 of the Canadian Charter of Rights and Freedoms. Crown counsel argued that the minimums do not violate s. 12; however, she advised the court that if I found any of the mandatory minimums to do so, she would not argue that the sections were saved by s. 1 of the Charter.

[3] During the course of the sentence proceedings, I allowed the application and found each of the mandatory minimums to violate s. 12 of the Charter. The following are my reasons for doing so.

Background

[4] The offences took place between August and October of 2015, for a period of about six weeks. This was approximately one month following the victim’s sixteenth birthday.

[5] At the time, the victim had been kicked out of her mother’s house, because she refused to promise her mother that she would stop smoking marijuana, and stop skipping school. She had been kicked out of her boyfriend’s house, because she questioned him after finding underwear apparently belonging to another female in his bed.

[6] The victim met Keon Chisholm on a bus, on her way to her part-time work at a grocery store. After her shift, they met in a park, smoked marijuana, and discussed the problems she was having with her mother. She then returned to her boyfriend’s house for the night.

[7] The following day, after being kicked out of her boyfriend’s house, she met again with Keon Chisholm, and he offered to rent a hotel room for her. At some point, they had a discussion about escorting, and entered into an agreement pursuant to which the victim would receive 60 per cent of the profits, and Mr. Chisholm would receive 40 per cent. His part was to post advertisements, rent hotel rooms, and communicate with customers. The victim provided him with photographs of herself which he posted on the internet to advertise her sexual services. The purpose of the agreement was for the victim to earn and save money to get her own apartment. It was agreed that she could stop escorting whenever she wanted to.

[8] A few days later, Deshon Boodhoo joined Keon Chisholm and the victim. He took additional photographs of her in her underwear which were posted on the internet, and changed the wording of the advertisement.

[9] Things did not work out for the victim as planned. Her evidence was that she was compelled to continue sex work when she no longer wished to do so, and that the offenders took all the money. This went on for a period of approximately six weeks.

Section 12 Analytical Framework

[10] Section 12 of the Charter provides that “[e]veryone has the right not to be subjected to any cruel and unusual treatment or punishment.” A mandatory minimum sentence will constitute cruel and unusual punishment under s. 12 if it is grossly disproportionate to the punishment that would be appropriate, having regard to the nature of the offence and the circumstances of the offender: R. v. Nur, 2015 SCC 15. To meet the grossly disproportionate standard, the sentence must be more than merely excessive or disproportionate; it must be so excessive as to outrage standards of decency and be disproportionate to the extent that Canadians would find the punishment abhorrent or intolerable: Nur, at para. 39.

Analysis

[11] In deciding s. 12 Charter challenges, the court may consider the offender and the offence before the court, and determine whether imposing the mandatory minimum would be grossly disproportionate; or consider “reasonable hypotheticals”, and determine whether reasonably foreseeable applications of the minimum would impose grossly disproportionate sentences on others.

Procuring a person under the age of 18 years – s. 286.3(2)

[12] In R. v. Safieh, 2018 ONSC 4468, McKelvey J. held that the five-year mandatory minimum sentence under s. 286.3(2) of the Code is inconsistent with s. 12 of the Charter, and declared it to be of no force or effect. He did so on the basis of a hypothetical fact situation in which the offender is an eighteen-year-old sexually abused sex worker who assists her pimp in recruiting a sixteen-year-old girl to be an escort. At the time of the offence, the offender is still being abused. The facts of the hypothetical were similar to the facts in R. v. Robitaille, 2017 ONCJ 768. McKelvey J. reasoned as follows:

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 Justice Moldaver 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.

[13] A judge is not bound by a decision of another judge, of the same court, on the same issue. However, such a judgment should be followed, unless the subsequent judge is satisfied that it was plainly wrong: R. v. Sarmales, 2017 ONSC 1869, at para. 12. In the present case, I agree with McKelvey J.’s conclusion that s. 286.3(2) of the Code violates s. 12 of the Charter.

[14] When a declaration has been made by a judge with inherent jurisdiction that a law contravenes the Charter, the offending section ceases to exist, and is no longer in force. Such a ruling is binding on the Crown, and can only be altered on appeal: Sarmales, at para. 20.

[15] For these reasons, the sentence hearing proceeded on the basis that the five-year mandatory minimum in s. 286(2) of the Code was no longer in force.

Material benefit from sexual services provided by person under 18 years – s. 286.2(2)

[16] In Robitaille, Greene J. held that the two-year mandatory minimum sentence under s. 286.2(2) of the Code is inconsistent with s. 12 of the Charter. Although provincial court judges do not have jurisdiction to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, they do have the authority to determine the validity of a mandatory minimum sentence when the issue arises in a case they are hearing.

[17] Based upon the actual facts of the case, Greene J. held that an eight-month sentence would be appropriate, and that a sentence of two years would be grossly disproportionate. In doing so, she correctly stated and applied the law to the facts of the case.

[18] In addition to her determination based upon the actual facts of the case, Greene J. considered “out of an abundance of caution” two hypothetical situations. The facts of one of the hypotheticals are as follows:

This modified hypothetical involves an offender whom just turned 18 in the days preceding the offence. According to the hypothetical, the offender is a sex trade worker herself, suffering from addictions and a history of sexual abuse. The offender’s pimp takes 50% of the money she earns and also deducts the costs of living from her income. The victim, a runaway and two months shy of her 18 th birthday starts to work for the offender’s pimp in order to make some money. The offender’s pimp instructs her to teach the victim the rules of the trade and to help purchase the victim clothing. In return, the offender is given 10% of all of the victim’s earnings. Two days later, the victim’s family locates victim, the police are called and the offender and her pimp are arrested. The victim advises that she serviced three clients over the two days all of which were hand jobs. As promised, the offender received 10% of the victim’s earnings.

[19] In finding that a sentence of two years would be grossly disproportionate on the facts of the hypothetical, Greene J. reasoned as follows:

In my view, this is a reasonable fact scenario. In some ways it bears a strong resemblance to the case at bar except that it includes some additional mitigating factors and has fewer aggravating factors. In my view, the limited role the offender is playing in the victim’s prostitution, the limited financial benefit she is receiving and the closeness in age between the victim and the offender all serve to diminish the culpability of the offender. Moreover, her dual status as a victim offender is more relevant here given her very limited involvement in the exploitation of her victim. In my view a two-year sentence for this offence would be grossly disproportionate.

[20] I agree with Greene J.’s reasoning and her conclusion, and adopt her hypothetical for the purpose of deciding the present case. In my view, the facts of the hypothetical are reasonable, especially in view of their similarity to the actual facts in Robitaille. A two-year sentence is a very substantial interference with individual liberty. Applied to the facts of the hypothetical, the mandatory minimum would be grossly disproportionate – most members of the community would consider a two-year penitentiary sentence to be intolerable, especially given the offender’s limited role in the offence, the limited time-frame, the limited financial benefit she received, her personal circumstances and their connection to the commission of the offence, including her addictions and history of sexual abuse.

[21] For these reasons, I find that the mandatory minimum sentence in s. 286.2(3) of the Criminal Code violates s. 12 of the Charter, and must be struck down.

Distribution of child pornography – s. 163.1(3)

[22] The harm that may be caused by child pornography is described in R. v. Sharpe, 2001 SCC 2, at paras. 86 to 94, and includes the following:

• exposure to child pornography may reduce paedophiles’ defences and inhibitions against sexual abuse of children, and make the abnormal seem normal, and the immoral seem acceptable;
• child pornography fuels fantasies and may incite offences in the case of certain individuals;
• child pornography poses a danger to children because it is used by pedophiles in the seduction process; and
• children may be used and degraded in the production of child pornography.

[23] The applicants argue that a one-year mandatory minimum is grossly disproportionate in relation to both the actual facts of the present case, and in relation to a number of hypothetical situations which they pose. They argue that the situation of assisting a nearly adult sex worker to advertise her work is different from the situation of posting photographs of a small child which are then distributed around the world for further exploitation.

[24] While I, of course, acknowledge the difference, in my view, the posting on internet sites of pornographic photographs of a sixteen year-old, with accompanying words advocating sexual activity with her, is a serious offence. In the present case, although the photographs posted by the offenders were originally selfies provided by the victim, the offenders took their own photographs of her, and continued to post them, beyond the period of her consent. Similarly, the hypothetical situation relied upon by the applicants involves taking a pornographic photograph, and posting it online for the purpose of advertising sexual services.

[25] In my view, a one-year sentence on either the actual facts of the present case, or the hypothetical posed by the applicants, would not be grossly disproportionate.

[26] However, I find the mandatory minimum sentence to be grossly disproportionate based upon the following hypothetical situation:

An 18 year-old forwards a “sext” from his 17 year-old girlfriend to a friend of his, without her knowledge. The friend does not forward the “sext” to anyone else. [^1]

[27] This hypothetical illustrates a number of difficulties with the mandatory minimum. The minimum sentence does not take into account the number of images distributed, the number of persons given access to the images, the age of the person depicted, the age of the offender, the explicit nature of the images, or whether any offence was committed in acquiring the images. I also note that none of the harms of child pornography referred to above from Sharpe appear to be engaged.

[28] In John, Pardu J.A. said the following in relation to the necessity for a mandatory minimum sentence for possession of child pornography:

The mandatory minimum is entirely unnecessary. This court has recently emphasized the importance of denunciation and deterrence for any offence involving abuse of a child, and that those principles are the primary principles of sentencing applicable for such offences involving child pornography: R. v. Inksetter, 2018 ONCA 474, at para. 16. In another recent decision, R. v. J.S., 2018 ONCA 675, this court upheld a sentence of 18 years for sexual abuse of young children, making child pornography depicting that abuse, and distribution of that material.

In my view, this comment also applies to the mandatory minimum in s. 163.1(3).

[29] For these reasons, I find that the application of a one-year mandatory minimum sentence in the circumstances of this hypothetical would be grossly disproportionate. It violates s. 12 of the Charter, and must therefore be struck down.

Disposition

[30] In the end result, I have concluded that the mandatory minimum sentences contained in ss. 163.1(3) and 286.2(2) of the Criminal Code are inconsistent with s. 12 of the Charter, and they are therefore declared to be of no force or effect, under s. 52 of the Constitution Act, 1982. Section 286.3(2) of the Code, also in issue on this application, was declared to be unconstitutional in Safieh, following the argument of this application.

“Bale J.”

Released: November 30, 2018

Footnotes

[^1]: This is a variation of the third hypothetical in R. v. John, 2018 ONCA 702. In that case, the court held that the mandatory minimum sentence of six months for possession of child pornography (which had been increased to one year following the date of the offence) was grossly disproportionate and violated s. 12 of the Charter.