COURT FILE NO.: CR-19-10776 DATE: 20230224
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – ALI FARDSHISHEH Defendant
Counsel: Kellie Hutchinson, for the Crown Fairborz Davoudi, for the Defendant
HEARD: November 16, 2022
RESTRICTION ON PUBLICATION Pursuant to s. 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcast or transmitted in any manner. This judgment complies with this restriction so that it can be published.
REASONS FOR SENTENCE
CHARNEY J.:
[1] On May 13, 2022, Mr. Fardshisheh was convicted of the following charges:
Count 3 – Procuring a person under the age of 18, namely E.G., to offer to provide sexual services for consideration contrary to s. 286.3(2) of the Criminal Code.
Count 4 – Luring – Communicating by means of telecommunication with a person, namely E.G., who was or was believed to be under the age of 18 years, for the purpose of facilitating the commission of an offence under s. 286.1, subsection (2) of the Criminal Code with respect to that person, contrary to s. 172.1, subsection (2) of the Criminal Code of Canada.
Count 5 – Obtaining for consideration the sexual services of a person under the age of 18 years, between July 1, 2018 and April 22, 2019, contrary to s. 286.1(2) of the Criminal Code.
Circumstances of the Offence
[2] The details of the offences are set out in my Reasons for Decision, R. v. Fardshisheh, 2022 ONSC 2899.
[3] Briefly, the facts giving rise to the offences are as follows.
[4] Sometime in late September 2018, the complainant, E.G., then 17 years of age, received an Instagram message from a person who identified himself as “Papasolsta”. E.G. had no idea who he was.
[5] Papasolsta is the defendant, Ali Fardshisheh.
[6] The message stated words to the effect of “Do you want to be a sugar baby and get paid $1,000 per month allowance?” There were no profile pictures of Papasolsta, but there was a picture of a black Porsche. At the time, E.G. had no idea what a sugar baby was, and she ignored the message for about a month.
[7] Mr. Fardshisheh was 46 years of age when the events in question occurred. He did not know E.G., but saw her profile on social media and messaged her because she seemed “bubbly, fun and outgoing”. There were a lot of photos of her on her profile. She was a complete stranger to him, but based on her photos he knew that she was younger than him.
[8] About two to four weeks after receiving the message, E.G. lost her part time job. She needed money, so she responded to the message, asking what she needed to do.
[9] Papasolsta introduced himself as Alex King. Alex King is the defendant, Ali Fardshisheh. For the purposes of relating the chronology of events from E.G.’s perspective, I will refer to Mr. Fardshisheh as “Alex King” because that is how the complainant knew and referred to him.
[10] Alex King messaged that he would meet up with her, and that she would “get eaten out” and be given one hundred dollars and get dropped back off. E.G. understood that the expression “get eaten out” meant that he would perform oral sex on her.
[11] E.G. could not recall the precise number of messages exchanged, but she needed the money, so she agreed over Instagram.
[12] As they exchanged messages, Alex King told her he was 37 years old, and that he had a BMW car dealership. E.G. either told Alex King that she was 17 years of age or her age might have been on her Instagram profile, but she was certain that Alex King knew her age. Mr. Fardshisheh testified that he did not know E.G.’s age until their first meeting, but acknowledged that the first time they met she told him that she was 17 years of age. Mr. Fardshisheh wanted to ensure that E.G. was over 16 years of age, which he believed to be the age of consent for sexual activity.
[13] Alex King asked for her address and picked her up. Their first meeting was sometime in October 2018. Alex King picked her up in a Honda minivan, and took her to a parking lot of a small shopping plaza near her home. He parked the minivan, and they got into the back seat. He took her pants and underwear off and performed oral sex on her. He remained fully clothed. When they were finished, E.G. testified that she got dressed, Alex King drove her back to her house, dropped her off, and gave her $100 cash. At the time she thought this was “an easy $100”.
[14] After their first meeting, they continued to communicate over Instagram and Snapchat almost every night. They next got together about a week later. In total, the two met for sexual activity (Alex King performing oral sex or using a vibrator) approximately 6 times. Alex King was always fully clothed. The meetings would be arranged through Instagram or Snapchat. Alex King would pick E.G. up outside her house, and they would drive to different locations in her neighbourhood, where he would perform oral sex on her in the back of the Honda van. E.G. would receive $100 cash each time. These acts were consensual, and Alex King never threatened her. This arrangement continued until approximately December 2018.
[15] On at least one occasion, Alex King picked E.G. up in his car and drove her to his condominium in Pickering, where he performed oral sex on her. Again, this was consensual and E.G. was paid $100.
[16] E.G. continued to see Alex King because she needed money “desperately”, and her mother would not give it to her. She stated that she was desperate for money so she could fit in with everyone at school. She needed the money to purchase items such as designer clothes, restaurant dinners, and eyelash extensions.
[17] E.G. did not engage in sexual activity with Alex King each time they met. There were occasions when he would pick her up from her house and take her to get food or have her nails done, which would be paid for by Alex King. There was no sexual activity that day, and the food and nails were not paid for in exchange for any service from E.G.
[18] E.G. last saw Alex King on April 22, 2019 when she texted Alex King and asked him to pick her up to take her to his house in Richmond Hill (Alex King had recently moved there from his condominium in Pickering). E.G. had not seen Alex King for some months at that point, although they had kept in touch by texting and Snapchats. There was no sexual activity between them that day. While events of that day were the subject of other charges against Mr. Fardshisheh, he was found not guilty in relation to those charges and it is not necessary to recite the facts in relation to the events of that day.
Victim Impact
[19] The complainant filed a brief Victim Impact Statement, in which she states that she met Mr. Fardshisheh when she was 17 years old and in a depressive state. Since April 2019 (her last meeting with Mr. Fardshisheh), she states that she has ruined many of her relationships and her relationship with her mother has never been the same. She takes out her anger and frustration on persons close to her and is frightened to meet new people because she does not know what their intentions might be. She is also afraid to work because she is worried that she might end up seeing Mr. Fardshisheh.
Crown Position
[20] The Crown seeks a global sentence of 7 years as follows:
a. Count 3 – Procuring person under 18: 5 years.
b. Count 4 – Child luring under 18: 3 years concurrent.
c. Count 5 – Obtaining sexual services of a person under 18 for consideration: 2 years consecutive to Count 1.
[21] The Crown takes the position that convictions should be registered on all counts. Although there is a factual nexus between the counts, there is no legal nexus. Each offence addresses a different delict and targets a different public interest. As a result, the principle in R. v. Kienapple, [1975] 1 S.C.R. 729, does not apply.
[22] The Crown asserts that the mandatory minimum applies to Count 5, obtaining sexual services under 18 (six months minimum), and Count 4, luring (one year minimum).
[23] The Crown concedes that the 5 year mandatory minimum sentence for Procuring Under 18 has been declared invalid by the Ontario Court of Appeal in R. v. Safieh, 2021 ONCA 643, and I am bound by that decision.
Defence Position
[24] The Defence takes the position that the one year mandatory minimum for luring is invalid: R. v. Faroughi, 2020 ONSC 780, at para. 57; R. v. C.D.R., 2020 ONSC 645, at para. 42 [1]; R. v. Sinnappillai, 2022 ONSC 832, at paras. 27 – 29.
[25] The Defence also takes the position that the charges in Count 5 should be stayed based on the principle in Kienapple, since, he argues, it covers the same factual and legal basis as Count 3, and Count 3 is the more serious of the charges.
[26] The Defence concedes that, on the basis of the Ontario Court of Appeal’s decision in R. v. Haniffa, 2021 ONCA 326, at paras. 26 – 30. [2]
[27] Assuming that the one year mandatory minimum for luring is invalid, the Defence takes the position that the sentence should be:
a. Count 3 – Procuring: 18 months.
b. Count 4 – Luring: 6 months concurrent to Count 3.
c. Count 5 – Obtaining sexual services for consideration: stayed on the basis of Kienapple.
[28] In the alternative, if the one year mandatory minimum for luring is valid, the Defence argues that Mr. Fardshisheh should receive the minimum sentence of one year, concurrent to Count 3.
[29] Further, if Count 5 is not stayed, the Defence argues that Mr. Fardshisheh should receive 6 months concurrent to Count 3.
Constitutional Validity of the Mandatory Minimum Sentence for Luring
[30] As indicated, the Defence takes the position that the one year mandatory minimum for luring is invalid, relying on the decisions of this Court in Faroughi, C.D.R., and Sinnappillai. He argues that I should follow these decisions on the basis of the principles of horizontal stare decisis.
[31] The application of the principles of horizontal stare decisis in cases where s. 52(1) declarations have been made by courts of coordinate jurisdiction was recently considered by the Supreme Court of Canada in R. v. Sullivan, 2022 SCC 19. In that case the Supreme Court summarized the principle of horizontal stare decisis, at paras. 73 and 75:
Horizontal stare decisis applies to decisions of the same level of court. The framework that guides the application of horizontal stare decisis for superior courts at first instance is found in Spruce Mills, described by Wilson J. as follows (at p. 592):
. . . I will only go against a judgment of another Judge of this Court if:
(a) Subsequent decisions have affected the validity of the impugned judgment;
(b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered;
(c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.
The principle of judicial comity — that judges treat fellow judges’ decisions with courtesy and consideration — as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteria are met. Correctly stated and applied, the Spruce Mills criteria strike the appropriate balance between the competing demands of certainty, correctness and the even-handed development of the law. Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances:
The rationale of an earlier decision has been undermined by subsequent appellate decisions;
The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or
The earlier decision was not fully considered, e.g. taken in exigent circumstances.
[32] The Court, at para. 74, expressly rejected the “plainly wrong” test that was frequently applied by courts. The Supreme Court held that “plainly wrong” is “a subjective term and suggests that a judge may depart from binding precedent if they disagree with it — mere personal disagreement between two judges is not a sufficient basis to depart from binding precedent.”
[33] The Crown argues that the rationale of the decisions in Faroughi and C.D.R. has been undermined by the subsequent decision of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, which called for an increase in sentences for sexual crimes against children. The Court in Friesen stated, at para. 5:
[W]e send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large. [Emphasis added.]
[34] The Crown argues that any pre-Friesen analysis of the constitutional validity of minimum sentences for sexual offences against children – particularly the issue of “gross disproportionality” – must be reassessed in light of the Supreme Court’s subsequent direction that there should be an upward shift in sentences for such offences. Regardless of whether a Charter challenge to such a mandatory minimum was based on the specific facts of the case, or a reasonable hypothetical, any analysis by the court prior to Friesen regarding the “appropriate” sentence will be too low and in conflict with Friesen.
[35] In particular, Faroughi and C.D.R were both “Project Raphael” [3] cases, and the sentences were heavily influenced by the fact that there was no specific victim. In Friesen, the Supreme Court noted, at paras. 93 – 94:
Although the absence of a specific victim is relevant, it should not be overemphasized in arriving at a fit sentence. The accused can take no credit for this factor…
…To be clear, child luring should never be viewed as a victimless crime.
[36] I note that Sinnappillai was decided after Friesen, and Boswell J. specifically considered Friesen at paras. 57 – 58 of his Reasons. Boswell J., at para. 29, determined that he was bound by the decisions in Faroughi and C.D.R., without the benefit of the restatement of the principles of horizontal stare decisis set out by the Supreme Court in Sullivan, applying the “plainly wrong” test that was later rejected in Sullivan. He proceeded on the basis that there was no mandatory minimum, but still imposed a sentence of 16 months imprisonment based, in part, on the application of the Supreme Court’s analysis in Friesen.
[37] I also note the recent decisions of the Supreme Court of Canada in R. v. Hills, 2023 SCC 2 and R. v. Hilbach, 2023 SCC 3, where the Supreme Court clarified the two-stage inquiry employed to assess the constitutional validity of a mandatory minimum sentence by establishing a three-part test for gross disproportionality: Hills, at paras. 122, 147.
[38] The same argument regarding the impact of the Supreme Court’s decision in Friesen was advanced by a different Crown in R. v. Mootoo, 2022 ONSC 384, and was rejected by Davies J. Like Sinnappillai, Mootoo was decided before the Supreme Court of Canada released its decision in Sullivan. Davies J. therefore relied on the “plainly wrong” test, holding, at para. 24, that, notwithstanding the Supreme Court’s decisions in Friesen, “as a matter of judicial comity, I should follow earlier declarations of unconstitutionality unless I have a cogent reason to believe they are plainly wrong.”
[39] Davies J. stated, at para. 27:
Even if a “substantial sentence” will be required in most cases of sexual violence against children, that does not mean a sentence of one-year or more will be proportionate in every case. It also does not mean that the trial judges who concluded the mandatory minimum sentences are unconstitutional failed to appreciate the inherent wrongfulness and harmfulness of sexual offences against children. Even after Friesen, there can be cases in which a one-year sentence will be grossly disproportionate. Importantly the Ontario Court of Appeal struck down the mandatory minimum sentence for procuring a child to engage in prostitution after the Supreme Court’s decision in Friesen. The Quebec Court of Appeal also struck down the mandatory minimum sentences for luring a child after Friesen. This supports my conclusion that the Supreme Court’s direction that sentences for sexual offences against children should generally increase does not mean the mandatory minimum sentence for those offences will be proportionate in all circumstances.
[40] She concluded at para. 28:
I am not satisfied that any of the trial level decisions are plainly wrong and will, therefore, sentence Mr. Mootoo on the basis that the mandatory minimum sentences are all unconstitutional and inapplicable.
[41] Davies J.’s use of the “plainly wrong” test is problematic given the Supreme Court’s subsequent rejection of that test at para. 74 of Sullivan. Although she relied on that now rejected wording, the thrust of her analysis was that the Supreme Court’s decision in Friesen was not really the game changer argued by the Crown.
[42] In the case before me, counsel agreed that I should hear their submissions on sentencing before considering the constitutional validity of the mandatory minimum, and that if I concluded that the appropriate sentence for luring in this case was at least one year irrespective of the mandatory minimum, I should not consider the constitutional question.
[43] The recent decision of the Supreme Court of Canada in R. v. Sharma, 2022 SCC 39, upheld the constitutional validity of s. 742.1(c) of the Criminal Code, which makes conditional sentences unavailable for offences with a maximum term of imprisonment of 14 years or life. The maximum term of imprisonment for child luring is 14 years (s. 172.1(2)(a)). Thus, when counsel made their sentencing submissions on November 16, 2022, even if the minimum sentence for child luring were invalid, a conditional sentence was not available in this case.
[44] As a result, when counsel made their sentencing submissions on November 16, 2022, an inquiry into the constitutional validity of the mandatory minimum sentence for luring was an academic exercise unless I concluded that a sentence of less than one year for that offence might be appropriate in this case.
[45] I agreed to proceed on that basis.
[46] After hearing the submissions of counsel, and taking into account the facts of this case, and comparing those facts to the facts in cases such as Faroughi, C.D.R., and Sinnappillai, and taking into account the direction set by the Supreme Court of Canada in Friesen, and Code J.’s analysis of the appropriate range for child luring cases in R. v. Moolla, 2021 ONSC 3702, at para. 21, I advised counsel that, even if the mandatory minimum in s. 172.1(2)(a) was unconstitutional, the appropriate sentence in this case would still be greater than one year. I will explain my reasons for this conclusion later in this decision, but counsel agreed that, in light of this conclusion, the constitutional issue raised was academic, and I did not have to hear their arguments on the constitutional issue or make any decision with regard to it.
Amendment of s. 742.1(c) of the Code
[47] That (the above) all made sense on November 16, 2022, when sentencing submissions were made.
[48] On November 17, 2022, Bill C-5 received Royal Assent. Bill C-5 amended s. 742.1(c) of the Code. Prior to this amendment, ss. 742.1(b) – (c) provided:
742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
(b) the offence is not an offence punishable by a minimum term of imprisonment;
(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life;
[49] While s. 742.1(b) remains unchanged, s. 742.1(c) was amended and now reads:
(c) the offence is not an offence under any of the following provisions:
(i) section 239, for which a sentence is imposed under paragraph 239(1)(b) (attempt to commit murder),
(ii) section 269.1 (torture), or
(iii) section 318 (advocating genocide); and
[50] Thus, while, prior to November 17, 2022, a conditional sentence was not available for child luring by virtue of both subsections 742.1(b) and (c), after November 17, 2022, a conditional sentence is not available for child luring only as a result of the minimum term of imprisonment found in s. 172.1(2)(a) of the Code. As such, the constitutional validity of the minimum sentence again became a live issue in this case; if the minimum term of imprisonment is invalid, then, arguably, s. 742.1(b) does not apply, and a conditional sentence might be available.
[51] This would be in keeping with s. 11(i) of the Charter, which guarantees that a person found guilty of an offence will gain the benefit of the lesser punishment if the punishment for the offence has been varied between the time of the commission of the offence and the time of sentencing.
[52] Accordingly, I gave counsel an opportunity to make submissions on the effect of Bill C-5 on the sentence in this case.
[53] Counsel reattended. The primary issue canvassed was whether, given the amendment to s. 742.1(c) of the Code, it was now necessary to consider the constitutional validity of the one year mandatory minimum for luring.
[54] The same issue recently arose in R. v. Kavanagh, 2023 ONSC 283, where Stribopoulos J. held, at paras. 59, 101 – 102:
i) that he was bound by the declarations in C.D.R. and Faroughi, and, accordingly, the offence of luring no longer has a mandatory minimum term of imprisonment, and
ii) that the declaration invalidating the mandatory minimum for child luring, combined with the amendment to s. 742.1(c) of the Code, meant that a conditional sentence was now available in child luring cases.
[55] It is important to note that in Kavanagh, unlike the case before me, Stribopoulos J. noted, at para. 59, that the Crown did not argue that the court should decline to follow C.D.R. and Faroughi.
[56] In Kavanagh (also a police sting operation), Stribopoulos J. declined to grant a conditional sentence, and imposed a 16-month term of imprisonment (the same term imposed by Boswell J. in Sinnappillai).
[57] In the case before me, counsel for the Crown and the defence reconfirmed their previous position, and confirmed that if I did not consider a conditional sentence to be appropriate, it was not necessary for me to consider the constitutional validity of the mandatory minimum sentence for child luring.
[58] As to the potential availability of a conditional sentence in this case, Crown counsel relies on the Ontario Court of Appeal’s decision in R. v. M.M., 2022 ONCA 441. In that case, the appellant was convicted of possessing and making child pornography and sentenced to a 15-month conditional sentence. The Court of Appeal held that the trial judge erred and that a conditional sentence should not have been imposed.
[59] Relying of the Supreme Court’s decision in Friesen, the Court of Appeal held, at paras. 15 – 16:
The Supreme Court’s instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 3. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.
Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.
[60] The Crown argues, and the defence acknowledges, that there are no “exceptional circumstances” that would merit a conditional sentence in this case.
[61] Based on the Court of Appeal’s decision in M.M., I advised counsel that, even if the mandatory minimum in s. 172.1(2)(a) was unconstitutional, a conditional sentence was not available on the facts of this case. As such, both counsel confirmed their position that it was not necessary for me to consider the constitutional validity of the mandatory minimum sentence in this case.
[62] To be clear, I am not convinced that I am bound by the declarations in C.D.R. and Faroughi. I agree with the Crown position that, based on the principles of horizontal stare decisis pronounced by the Supreme Court in Sullivan, together with the Supreme Court’s decisions in Friesen and Hills, the decisions in C.D.R. and Faroughi are open to reconsideration. The rationale of those earlier decisions has been undermined by these subsequent cases.
[63] That said, even if I am bound by the decisions of my colleagues in C.D.R. and Faroughi, the invalidity of the mandatory minimum sentence would be irrelevant to the assessment of the appropriate sentence in this case.
Analysis – Appropriate Sentence
[64] The Supreme Court of Canada has repeatedly recognized the special vulnerability of children to sexual exploitation, and that the internet and social media allows for greater opportunities for sexual predators to exploit children: R. v. Mills, 2019 SCC 22, at para. 23, Friesen, at para. 94 and cases cited therein.
[65] This case represents a prime example of child luring over social media. Mr. Fardshisheh contacted the complainant over Instagram. She was a complete stranger to him. He offered her money in exchange for sexual services. She agreed because she wanted the money to fit in with everyone at school and to purchase items such as designer clothes, restaurant dinners and eyelash extensions. While a 17 year old is old enough to consent to sex, they may still lack maturity and judgment and do not have the capacity to consent to the commodification of sex. They remain vulnerable to exploitation by adults: Sinnappillai, at para. 53.
[66] As the Ontario Court of Appeal stated in R. v. Ramelson, 2021 ONCA 328, at para. 102, aff’d 2022 SCC 44, “Obtaining the sexual services of a juvenile for consideration is an extremely grave crime.”
[67] As a result, appellate courts have signalled an increase in the range of sentences appropriate for these offences.
[68] In R. v. Woodward, 2011 ONCA 610, at para. 58, the Court of Appeal stated:
[I]f it is shown through the introduction of properly tendered evidence that the offence of luring has become a pervasive social problem, I believe that much stiffer sentences, in the range of three to five years, might well be warranted to deter, denounce and separate from society adult predators who would commit this insidious crime.
[69] In Friesen, the Supreme Court stated, at paras. 95, 100:
Parliament has recognized the profound harm that sexual offences against children cause and has determined that sentences for such offences should increase to match Parliament’s view of their gravity. Parliament has expressed its will by increasing maximum sentences and by prioritizing denunciation and deterrence in sentencing for sexual offences against children.
To respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. As Kasirer J.A. recognized in Rayo in the context of the offence of child luring, Parliament’s view of the increased gravity of the offence as reflected in the increase in maximum sentences should be reflected in [translation] “toughened sanctions” (para. 175; see also Woodward, at para. 58). Sentencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences.
[70] These principles were summarized by Code J. in Moolla, at paras. 20 – 21:
It is now settled law, as a result of Woodward and Friesen and s. 718.01, that denunciation, deterrence, and protection of the public are the predominant sentencing objectives in this case as it involves an offence relating to the sexual abuse of children…
I agree with Ms. Rogozinski’s analysis, on behalf of the Crown, concerning the effect of Woodward and Friesen on the appropriate range of sentence for internet child sex luring. In Woodward, the Court of Appeal held that a range of three to five years would be appropriate if the offence of luring became “a pervasive social problem” and in light of Parliament having increased the maximum sentence from five years to 10 years in the 2007 amendments. In 2015, four years after Woodward, Parliament again increased the maximum sentence, from 10 years to 14 years. In 2020, the Supreme Court decided Friesen and held that “child-luring incidents more than doubled between 2010 and 2017”, that repeated increases in the maximum sentence mean that “courts need to give effect to Parliament’s clear and repeated signals to increase sentences”, and that the new range suggested in Woodward was to be “commended.” In all these circumstances, I am satisfied that three to five years is now the appropriate range. See: Woodward, supra at para. 58; Friesen, supra at paras. 46, 99-100, and 113-114.
[71] Moolla, involved a police sting. The offender had placed an ad on Craigslist seeking a sexual relationship with a girl between the ages of 16 and 19. An undercover police officer responded, posing as a 14-year-old girl. Two days of communications led to an arranged meeting for the purpose of sexual relations. Mr. Moolla was arrested when he showed up for the meeting.
[72] Justice Code imposed a sentence of three-and-a-half years for internet child luring.
[73] Since Moolla, the three to five-year sentencing range it identified for these offences has been adopted by Davies J. in Mootoo, at paras. 33, 67. The range has also been adopted by the Ontario Court of Justice in R. v. MacDonald, 2022 ONCJ 1260, at para. 26.
[74] Other cases have declined to follow Code J.’s ruling in Moolla, finding that there is an “insufficient body of caselaw to properly evaluate where the new range for luring should fall”: R. v. Collier, 2021 ONSC 6827, at para. 36; Sinnappillai, at para. 64; Kavanagh, at para. 77. These cases all involved sting operations with undercover police officers posing as children.
[75] In Kavanagh, Stribopoulos J. noted at para. 79:
[T]hat since Friesen, most Ontario courts have imposed reformatory rather than penitentiary sentences in child luring and make available cases involving police undercover sting operations: see R. v. Aguilar, 2022 ONCA 353; R. v. Battieste, 2022 ONCJ 573; Collier; Sinnappillai; R. v. Razon, 2021 ONCJ 616; R. v. Saberi, 2021 ONCJ 345; R. v. Patel, 2022 ONCJ 3800; but see Moolla and MacDonald.
[76] The sentences in the undercover sting operation cases appear to be heavily influenced by the fact that there is no actual child involved. While the Supreme Court in Friesen, at paras. 93 – 94, emphasized that this is not a mitigating factor, and that child luring is never a victimless crime, the Court still found that it is a relevant (but not to be overemphasized) consideration because it bears upon the gravity of the offence. This must be correct, otherwise there would be no point to a court considering a victim impact statement. Involvement of a real child is an especially aggravating factor: Kavanagh, at para. 93.
[77] In my view, the clear message of Friesen is that a reformatory sentence will not be appropriate in cases, like the present one, where a real child is involved.
Aggravating and Mitigating Factors
[78] The key mitigating factors in this case is that Mr. Fardshisheh is a self-employed businessman with no criminal record.
[79] In addition, Mr. Fardshisheh has been on bail for over three years without incident.
[80] While the age of consent in Canada is generally 16 years of age (see s. 151 of the Criminal Code), a person under the age of 18 cannot consent to the commodification of sexual activity. It is clear from the evidence that Mr. Fardshisheh knew that the age of consent for sexual activity was 16 years of age, and the evidence indicates that Mr. Fardshisheh was careful to ensure that E.G. was over 16 years of age. Mr. Fardshisheh was looking for females who he mistakenly thought were of legal age to consent to sex. I find that he honestly, but mistakenly, believed that if E.G. was over the age of 16, his conduct was legal. While mistake of law is no defence, it is a factor that I may consider in sentencing. See R. v. Suter, 2018 SCC 34, at paras. 64 – 65:
A mistake of law is a legal concept with rigorous requirements. In my view, it occurs only where a person has an honest but mistaken belief in the legality of his or her actions. Although it is not a defence to a criminal charge (s. 19 of the Criminal Code; R. v. Forster, [1992] 1 S.C.R. 339, at p. 346), mistake of law can nevertheless be used as a mitigating factor in sentencing (see R. v. Pontes, [1995] 3 S.C.R. 44, at para. 87; R. v. MacDonald, 2014 SCC 3, [2014] 1 S.C.R. 37, at para. 61; Kenny’s Outlines of Criminal Law (19th ed. 1966), by J. W. Cecil Turner, at pp. 61-62). This is because offenders who honestly but mistakenly believe in the lawfulness of their actions are less morally blameworthy than offenders who — in committing the same offence — are unsure about the lawfulness of their actions, or know that their actions are unlawful.
Confusion or uncertainty as to the lawfulness of one’s actions does not, in my view, meet the legal requirements for mistake of law. However, such confusion may still be relevant to the sentencing analysis depending on the facts of the particular case. Its mitigating effect, if any, will necessarily be less than in a situation where there is a true mistake of law.
[81] This factor is relevant to Mr. Fardshisheh’s prospects for rehabilitation. There was only one victim in this case, and Mr. Fardshisheh has no criminal record. Once he has served his sentence, it is most unlikely that he will ever again communicate with girls under 18 for sexual services.
[82] In assessing aggravating and mitigating factors, I must be careful not to confuse the absence of an aggravating factor with the presence of a mitigating factor: Friesen, at para. 150.
[83] The complainant’s age is not a mitigating factor. The intentional sexual exploitation of any child is highly morally blameworthy because children are vulnerable: Friesen, at para. 90. While the age of the victim is a significant aggravating factor and, generally speaking, the younger the age of the victim the greater should be the sentence (Friesen, at para. 134) the Court must not impose a disproportionately low sentence when the victim is an adolescent. As the Court stated in Friesen, at para. 136:
At the same time, courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent. Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, even though adolescents may be an age group that is disproportionately victimized by sexual violence (Benedet, at pp. 302, 304 and 314; L. (D.O.), at pp. 464-65, per L’Heureux-Dubé J.). In particular, sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy (I. Grant and J. Benedet, “Confronting the Sexual Assault of Teenage Girls: The Mistake of Age Defence in Canadian Sexual Assault Law” (2019), 97 Can. Bar Rev. 1, at p. 5; “The ‘Statutory Rape’ Myth”, at p. 269; R. v. Hess, [1990] 2 S.C.R. 906, at pp. 948-49, per McLachlin J.).
[84] There are several aggravating factors that courts have identified in other cases that are not present here, which is relevant to my assessment of the seriousness of Mr. Fardshisheh’s offences and his moral blameworthiness, and where he might fit in the range of sentencing.
[85] The fact that the complainant willingly engaged with Mr. Fardshisheh on social media, and willingly exchanged sexual services for consideration, is not a mitigating factor. That said, Mr. Fardshisheh was acquitted of sexual assault and assault. The absence of physical violence does not detract from the inherent seriousness of Mr. Fardshisheh’s offences: Friesen, at para. 82. But Mr. Fardshisheh’s case would have been more serious had he also been convicted of offences involving physical assaults: Friesen, at paras. 138 – 145.
[86] Mr. Fardshisheh was not in a position of trust. Indeed, he was a stranger to the complainant when he first contacted her. There was no “grooming” in the sense of cultivating trust over a period of time and then abusing the trust to obtain sex. Mr. Fardshisheh’s intentions were clear from the outset. These are not mitigating factors, but the absence of aggravating factors.
[87] While Mr. Fardshisheh was found guilty of procuring, this is not a case in which Mr. Fardshisheh was acting as a pimp to financially profit from the complainant’s commodification of sex. He was procuring the complainant for his own sexual gratification, but not for financial gain. Again, not a mitigating factor, but the absence of an aggravating factor that would place a case toward the higher end of the sentencing range.
[88] An aggravating factor in this case is Mr. Fardshisheh’s age. He was 46 years old when he committed this offence (although he told the complainant that he was 37), approximately 30 years older than the complainant.
[89] Another aggravating factor is that the offence involved several incidents of sexual exploitation. This was not an isolated incident. The Supreme Court has been clear that sexual offences against children that are committed on multiple occasions and for longer periods of time should attract higher sentences than isolated incidents: Friesen, at para. 133.
[90] The text messages from Mr. Fardshisheh to the complainant were overtly sexual and included explicit detail about things he wanted to do to her.
[91] Mr. Fardshisheh’s offences have also caused harm to the complainant, as set out in her Victim Impact Statement.
[92] These offences involved the sexual exploitation of a person under the age of 18. I am therefore obliged pursuant to s. 718.1 of the Code to emphasize denunciation and deterrence in sentencing Mr. Fardshisheh: R. v. Joseph, 2020 ONCA 733, at paras. 106, 134, Friesen, at paras. 101 – 102.
[93] Section 718.01 provides:
718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
[94] Weighing all of these factors, it is my view that Mr. Fardshisheh’s sentence should be at the lower end of the range.
Kienapple Application
[95] The Kienapple principle bars multiple convictions for two or more offences arising out of the same criminal act or transaction in circumstances where the essential elements of the offences are meant to cover the same wrong.
[96] As indicated above, Defence takes the position that the charges in Count 5 (Obtaining for consideration the sexual services of a person under the age of 18) should be stayed based on the principle in Kienapple, since, he argues, it covers the same factual and legal basis as Count 3 (Procuring a person under the age of 18), and Count 3 is the more serious of the charges. Both charges arise out of Mr. Fardshisheh’s sexual commodification of E.G.
[97] Indeed, in my Reasons for Decision, at paras. 181 – 207, I dealt with Counts 3 and 5 together, noting, at para. 183, that these charges include many of the same elements.
[98] However, the fact the two charges share common elements is not a basis to stay one of them. The Court must also consider whether there is an element of one offence which is distinct or additional from the other. Where there are distinct or additional elements, a judicial stay should not be imposed: R. v. Prince, [1986] 2 S.C.R. 480, at p. 498 – 499.
[99] For ease of reference the relevant sections of the Criminal Code are set out below.
[100] Section 286.1(2) of the Code provides:
Obtaining sexual services for consideration from person under 18 years
(2) Everyone who, in any place, obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person under the age of 18 years is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of
(a) for a first offence, six months; and
(b) for each subsequent offence, one year
[101] Section 286.3(2) of the Criminal Code provides:
Procuring — person under 18 years
(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 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.
[102] While there is some overlap between the two provisions, the two counts do have different elements and different statutory purposes. Procuring is the precursor to obtaining. The offence of procuring is made out when the person under 18 years of age is persuaded, encouraged, or influenced to offer to provide sexual services for consideration: R. v. Gallone, 2019 ONCA 663, at paras. 59 – 61. The offence of obtaining in this case was made out when Mr. Fardshisheh obtained these sexual services for consideration.
[103] There may be cases where the actus reus of s. 286.1(2) falls short of actually obtaining sexual services, and is limited to communicating “with anyone for the purpose of obtaining for consideration, the sexual services”, and I express no opinion on whether Kienapple might apply to those facts.
[104] Given the differences in the elements of the offence and the different purpose of each section, the Kienapple principle does not apply.
Conclusion
[105] In deciding on the appropriate sentence, I have to carefully consider: the purpose, principles, and objectives of sentencing; the aggravating and mitigating factors; and the collateral consequences. In the end, I must impose a sentence proportionate to the gravity of these crimes and Mr. Fardshisheh’s degree of responsibility in their commission.
[106] Based on these considerations, I find the fit and appropriate sentence in this case as follows.
[107] Count 3 – Procuring a person under the age of 18 to offer to provide sexual services: 3 years in custody.
[108] Count 4 – Luring a person under the age of 18: 3 years in custody to be served concurrently.
[109] Count 5 – Obtaining for consideration the sexual services of a person under the age of 18: 3 years in custody to be served concurrently.
[110] As indicated, it is my view the sentences should be served concurrently. The offences “are so closely linked to each other as to constitute a single criminal adventure”: Friesen, at para. 155. I am also of the view that, given the specific circumstances of this offender and offence, a global sentence of 36 months is the appropriate sentence for a first-time offender with no criminal record.
[111] While the Crown asked for only 2 years for Count 5, this 2-year sentence was based on the Crown’s position that the two year sentence should be served consecutively to the 5 year sentence for procuring, for a global sentence of 7 years. Given my view that all sentences should be served concurrently, there is no basis for reducing the sentence for Count 5 to two years in this case.
[112] Mr. Fardshisheh is required to comply with the Sex Offender Information Registry Act, S.C. 2004, c. 10, for 20 years as required by s. 490.013(2)(b) of the Criminal Code, which remains in force in accordance with the suspended declaration granted by the Supreme Court of Canada in R. v. Ndhlovu, 2022 SCC 38, at paras. 138 – 142.
[113] The Court also makes a DNA order because each offence is a primary designated offence: see Criminal Code, ss. 487.04, 487.051(1).
[114] Mr. Fardshisheh is prohibited from communicating directly or indirectly by any means with E.G. while he is serving his sentence: Criminal Code, s. 743.21.
Justice R.E. Charney
Released: February 24, 2023
Footnotes:
[1] R. v. C.D.R. eventually went to the Supreme Court of Canada (sub nom. R. v. Ramelson, 2022 SCC 44), although the validity of the one year mandatory minimum sentence for luring was not at issue in that appeal. The subject at issue was the trial judge’s ruling (2020 ONSC 5030) to stay the charges on the basis of entrapment. The Court of Appeal (2021 ONCA 328) reversed the trial judge’s ruling, concluding that Mr. Ramelson had not been entrapped. The Supreme Court of Canada affirmed the Court of Appeal’s conclusion.
[2] The Supreme Court of Canada dismissed the appeal in R. v. Haniffa, 2022 SCC 46, although the Kienapple issue was not raised or considered in that appeal.