Reasons for Sentence

Court File No.: 69/17 Date: 2019-02-21 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – W.G.

Counsel: Sean Bradley, for the Crown David Landesman, for W.G.

Heard: January 30, 2019

Before: Gray J.

[1] On September 20, 2018, I issued Reasons for Judgment, in which I found W.G. guilty of sexual assault, contrary to s. 271 of the Criminal Code, and sexual interference, contrary to s.151. On January 30, 2019, the parties appeared before me and I entertained submissions on the appropriate sentence.

[2] Both parties agree that count 1, sexual assault, should be stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.

[3] Section 151 of the Criminal Code provides as follows:

151 Every person who, for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of a person under the age of 16 years

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of 90 days.

[4] By Notice of Application, counsel for W.G. challenged the mandatory minimum sentence of one year, as stipulated in s.151 (a), on the ground that it contravenes s.12 of the Canadian Charter of Rights and Freedoms.

[5] Counsel for the Crown does not contest the constitutional Application. While I am not bound by a concession on a matter of law, I accept the concession in this case for reasons I will outline later.

[6] It should also be noted that the maximum term of imprisonment of 14 years under s.151 was enacted effective June 18, 2015. Prior to that date, the maximum term of imprisonment was ten years. Because the offences were alleged to have been committed between February 1, 2015 and April 30, 2015, W.G. is entitled to the benefit of the lower maximum term of imprisonment, ten years. This will have some impact on the availability of certain sentencing options, to be discussed later.

Submissions

[7] Mr. Landesman, counsel for W.G., submits that his client should be given a sentence that does not require him to serve any time in jail. He asks that I consider a conditional discharge, a conditional sentence, or the suspending of sentence and probation.

[8] Mr. Landesman points out that a conditional discharge and a conditional sentence are both available notwithstanding that a condition of their availability is that the offence cannot be one for which the maximum term of imprisonment is 14 years. As noted, at the time the offences were committed, the maximum term of imprisonment under s.151 was ten years.

[9] Mr. Landesman submits that the ordinary principles of sentencing must apply in this case. W.G. is in his mid-fifties, is a successful businessman, has no criminal record, and is married with a teenage son, albeit he is separated from his wife. He is active in the community, and he has participated in several political campaigns. Apart from the single offence for which he has been convicted, he has led an exemplary life.

[10] Mr. Landesman submits that the actual offence for which W.G. has been committed is at the very low end of blameworthiness. This is not a case where he has sought out an individual who is less than 16 years of age for sexual gratification. Rather, this is a case where the complainant actively sought to make W.G. believe that he was over the age of 16. Mr. Landesman points out that in my Reasons convicting W.G., I specifically found that W.G. honestly believed that the complainant was more than 16 years of age. The only ground for the conviction of W.G. was based on my finding that he had not taken all reasonable steps to ascertain the age of the complainant. Accordingly, the offence of which W.G. has been convicted is really one of negligence rather than one of actively seeking sexual gratification with a minor.

[11] Mr. Bradley, counsel for the Crown, submits that W.G. should serve a sentence of 12 months in custody, followed by probation for two years. The Crown also seeks certain ancillary orders.

[12] Mr. Bradley submits that it has been recognized by the Court of Appeal in many cases that sexual offences committed against minors are very serious. Penitentiary terms in the upper single digits have been upheld. Even though the basis of the offence here is the failure to take reasonable steps to ascertain the age of the complainant, nevertheless the offence is a very serious one. The mitigating factors can be taken into account by fixing a sentence at the low end of the range, in this case, one year.

[13] Mr. Bradley submits that the most relevant factors are those of denunciation and deterrence. Only a reasonably significant jail term can adequately reflect those factors.

Analysis

[14] As noted, both parties concede that the mandatory minimum sentence of one year is unconstitutional. I accept the concession for the reasons that follow.

[15] The mandatory minimum sentence of one year, contained in s.151 of the Code, has been attacked in a number of cases. As far as I am aware, the first such case was R. v. M.L., 2016 ONSC 7082, a decision of Linhares de Sousa J. As instructed in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, she determined whether the one year minimum sentence would be grossly disproportionate for the particular accused before her. She held that it would not, and then, pursuant to the direction in R. v. Nur, she examined whether the mandatory minimum sentence could be challenged on the ground that it would impose a grossly disproportionate sentence on other persons in reasonably foreseeable situations. She held that it would, and, at para. 92, she declared that: “The mandatory minimum sentences imposed by s.151 of the Code are declared of no force or effect under. s.52 of the Constitution Act.”

[16] In the subsequent decision of R. v. Sarmales, 2017 ONSC 1869, Smith J. held that the ruling of Linhares de Sousa J., being a declaration made by a judge of inherent jurisdiction, is binding on all other courts unless and until it is overturned on appeal. At para. 20, he stated:

I agree with the submission by the defence that, once a declaration is made by a judge with inherent jurisdiction, that the law contravenes the constitution, the offending section ceases to exist and is of no force and effect. This ruling is binding on the Crown and can only be altered on appeal. As a result, there is no constitutional issue that remains ‘in question’ once such a declaration has been made under s.52(1) of the Constitution Act by a judge with inherent jurisdiction.”

[17] The same reasoning was applied by Spies J. in R. v. McCaw, 2018 ONSC 3464, 48 C.R. (7th) 359, in which she determined that s.33.1 of the Criminal Code is of no force and effect.

[18] Spies J. considered in some depth the decision of the Supreme Court of Canada in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96. In that case, the court disapproved of the concept of providing a constitutional exemption for an individual when the circumstances render the applicability of a mandatory minimum sentence to be grossly disproportionate for that individual. Rather, the court held that in such circumstances the mandatory minimum sentence must be struck down in its entirety. At para. 65, McLachlin C.J.C. stated as follows:

The presence of s.52(1) with its mandatory wording suggest an intention of the framers of the Charter that unconstitutional laws are deprived of effect to the extent of their inconsistency, not left on the books subject to discretionary case-by-case remedies: see Osborne, per Wilson J. In case where the requirements for severance or reading in are met, it may be possible to remedy the inconsistency judicially instead of striking down the impugned legislation as a whole: Vriend; Sharpe. Where this is not possible – as in the case of an unconstitutional mandatory minimum sentence – the unconstitutional provision must be struck down. The ball is thrown back into Parliament’s court, to revise the law, should it choose to do so, so that it no longer produces unconstitutional effects. In either case, the remedy is a s.52 remedy that renders the unconstitutional provision of no force or effect to the extent of its inconsistency. To the extent that the law is unconstitutional, it is not merely inapplicable for the purpose of the case at hand. It is null and void, and is effectively removed from the statute books.

[Emphasis added]

[19] In McCaw, Spies J. stated at para. 76:

If a judge of this court finds that a provision of a statute is unconstitutional, by virtue of s.52 of the Constitution Act and Ferguson, that provision is invalid for all future cases – it is ‘off the books’.” Coming to this conclusion does not require a consideration of judicial comity. In my view, the question of judicial comity has no relevance to the issue before me.

[20] At para. 77, she stated:

Accordingly, it follows that if a judge of this court has already declared s.33.1 of the Criminal Code as unconstitutional then s.33.1 has effectively been removed from the Criminal Code and I am bound by that decision.

[21] I agree with Smith J. and Spies J., that if a provision has been formally declared to be of no force or effect, pursuant to s.52 of the Constitution Act, that formal declaration is binding on all other courts unless and until it is overturned on appeal. What this means is that if the Crown chooses to not appeal the declaration, it is then foreclosed from arguing the point in another case.

[22] I recognize that there are some conceptual difficulties with this position where a declaration has been made by a Superior Court judge in another province. In such a case, is the Crown in Ontario bound by the declaration when it had no opportunity to appeal the decision?

[23] I need not wrestle with that difficulty, because in this case the declaration in R. v. M.L., was made by a judge of the Superior Court in Ontario.

[24] Because the offence was committed at a time when the maximum term of imprisonment under s.151 of the Code was ten years, there are no restrictions on the sentence I may impose.

[25] Even in cases where the offender has not been convicted on the basis of the “all reasonable steps” requirement, sentences for sexual interference have varied widely. For example:

a) R. v. Kai-wah Lee, 1992 CarswellOnt. 4061 (O.C.J.) – suspended sentence, two years’ probation; b) R. v. Hunter (2004), 182 C.C.C. (3d) 121 (Ont. C.A.) – conditional sentence; c) R. v. Real, 2009 ONCA 912 – 90 days intermittent; d) R. v. C.L., 2013 ONSC 277 – 90 days intermittent; e) R. v. J.D., 2015 ONSC 5857 – 15 months incarceration plus two years’ probation; f) R. v. M.L., 2016 ONSC 7082 – 9 months imprisonment; g) R. v. J.G., 2017 ONCJ 881 – suspended sentence plus probation for twelve months; h) R. v. Hussein, 2017 ONSC 4202 – 15 months imprisonment, plus two years’ probation; i) R. v. K.S., 2018 ONSC 5678 – 15 months imprisonment, plus two years’ probation; j) R. v. Scofield, 2019 BCCA 3 – conditional sentence.

[26] I note that some of these cases involved convictions on the basis of the “all reasonable steps” requirement, and some did not.

[27] In addition to these cases, I would note R. v. Morrison (2017), 2017 ONCA 582, 350 C.C.C. (3d) 161 (Ont. C.A.) which, as I noted in my original Reasons for Judgment, is on appeal to the Supreme Court of Canada. Mr. Morrison was convicted of the offence of child luring, on the basis that he had not taken reasonable steps to ascertain the age of his interlocutor. The Court of Appeal upheld a sentence of four months, and Pardu J.A. stated, at para. 131, “Morrison’s blameworthiness is diminished in that it cannot be said that he believed his interlocutor was underage when engaging in sexualized conversations. He is culpable only for having acted unreasonably in failing to take steps to ensure that the other person was not underage.”

[28] In order to determine the appropriate sentence, one must now have regard for the general principles of sentencing. The following provisions of the Criminal Code are relevant:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

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

(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,

(ii) evidence that the offender, in committing the offence, abused the offender’s spouse or common-law partner,

(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,

(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,

(v) evidence that the offence was a terrorism offence, or

(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act

shall be deemed to be aggravating circumstances;

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[29] Also relevant are s.730 (Conditional and Absolute Discharge); s.731 (Suspended Sentence and Probation); s.732 (Intermittent Sentence); and s.742.1 (Conditional Sentence).

[30] It is clear from the caselaw that any and all options reflected in these provisions have been imposed by different courts, depending on the circumstances.

[31] In this case, I agree with counsel for W.G. that it is not necessary that W.G. serve a term of imprisonment in custody. As noted earlier, W.G.’s offence is akin to one of negligence, rather than a deliberate attempt to engage in sexual activity with an underage person. Nonetheless, the offence is a serious one. Parliament’s objective in enacting s.150.1(4) is to ensure, to the degree possible, that persons under 16 years of age will not engage in sexual activity prematurely. However, as noted in Morrison, the blameworthiness of the offender is less than it would otherwise be if the offender knowingly engages in sexual activity with a minor.

[32] In this case, the personal circumstances of W.G. are compelling. He has no criminal record. Apart from this offence, he is an upstanding member of society. He operates a successful business. He is active in the community, and has participated in several political campaigns. He has a positive relationship with his ex-spouse and his son. He has the support of a broad spectrum of society, as reflected in the letters of support that were filed with the court.

[33] In the final analysis, I think an appropriate balancing of the relevant factors requires the imposition of a conditional sentence, as prescribed by s.742.1 of the Code. I am satisfied that service of a sentence in the community would not endanger the safety of the community and it would be consistent with the fundamental purpose and principles of sentencing set out in s.718 – 718.2 of the Code. None of the exclusions prescribed by clauses 742.1(b) to (f) apply.

[34] The sentence I impose will be that W.G. serve a sentence of one year in prison, to be served in the community as follows:

a) W.G. will remain in his residence each and every day from 6:00 p.m. to 6:00 a.m. except in the case of a medical emergency, or as otherwise approved by his supervisor;

b) W.G. shall abide by the conditions set out in s.742.3(1);

c) W.G. shall report to a supervisor within two working days after the making of this order;

d) W.G. shall have no contact of any kind with the complainant, L.S.;

e) W.G. shall perform 100 hours of community service, as prescribed by the supervisor, over the period of one year.

[35] As requested by the Crown, an order will issue pursuant to s.487.051 of the Code. An order will issue pursuant to s.490.012 of the Code, to end after 20 years as required by s.490.013(2)(b) of the Code.

Gray J. Released: February 21, 2019