WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rafiq, 2015 ONCA 768

DATE: 20151112

DOCKET: C58792

Strathy C.J.O., Lauwers J.A. and Speyer J. (ad hoc)

BETWEEN

Her Majesty the Queen

Appellant

and

Yasir Rafiq

Respondent

Lisa Henderson, for the appellant

Nathan Gorham and B. Vandebeek, for the respondent

Heard: October 1, 2015

On appeal from the sentence imposed on April 17, 2014 by Justice N.L. Backhouse of the Superior Court of Justice.

Strathy C.J.O.:

A. introduction

[1] The respondent pleaded guilty to one count of child luring contrary to s. 172.1 of the Criminal Code. He received a conditional sentence of two years less a day.

[2] The Crown seeks leave to appeal the conditional sentence. If leave is granted, it asks that the appeal be allowed and a custodial term imposed.

[3] For the reasons that follow, I would grant leave, allow the appeal, and order the appellant incarcerated for the time remaining on his conditional sentence.

B. The Facts

[4] Between April and December 2009, the respondent engaged in sexually explicit Internet chats with a 12-year-old girl, E.F., who lived in the south western United States. He instructed her on sexual activities, sent her photographs of his penis, induced her to send him nude photographs of herself, and had lengthy chats with her, requesting that she masturbate at the same time as he did.

[5] The respondent met E.F. through an Internet tennis game. He used a false name and told her he was 22 years old. In fact, he was 24. She initially told him she was 18. In fact, she was 12.

[6] They began communicating by email and instant messenger. The respondent asked E.F. about her sexual experiences. From her relative ignorance of sexual matters, he suspected that she was younger than 18. He pressed her for details. She admitted she was only 12. This was in June, a month or two after they began communicating.

[7] With knowledge that E.F. was 12, the respondent continued his sexually explicit communications for another five months. He escalated from chatting, to sending photos of his erect penis, to suggesting sexual acts for her to engage in, to asking for and receiving nude photographs of her body, including close-ups of her vagina. He engaged in lengthy sexual chats with her while he masturbated, requesting that she do so at the same time. He instructed her on how to perform oral sex on a banana and she sent him photographs of herself doing so. He instructed her on inserting objects into her vagina.

[8] E.F. sent the respondent at least 38 nude photographs of herself. Some contained close-ups of her vagina, posed according to his directions. When she expressed reluctance about sending more, he told her that another girl was willing to send him photographs if she did not.

[9] The respondent clearly realized that what he was doing was wrong. At one point, he suggested E.F. could say she was 18 in their chats. She declined to do so, protesting that she was 12 years old, not 18.

[10] Eventually, E.F. stopped communicating. Her parents discovered what had been taking place. In December, they reported the offence to police, who interviewed E.F. The communications were traced to a computer in the respondent’s home in Scarborough, Ontario. Police arrested him. They found his emails and chats with E.F. on his computer. They also found a number of pornographic photographs of E.F., hidden on his computer in a folder named “E.”. They also found five child pornography videos on his computer, none of which involved E.F.

[11] For the purposes of sentencing, the respondent admitted the possession of the photographs of the victim, although he did not plead to the count of possession of child pornography. He testified that he was not aware of the child pornography videos on his computer, which he thought might have been inadvertently downloaded with other pornographic videos. The sentencing judge accepted this explanation.

C. The sentencing Judge’s Reasons

[12] The sentencing judge identified the sentencing principles set out in ss. 718, 718.1 and 718.2 of the Code and noted the specific principles applicable to cases such as this, set out by this court in R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81. There, this court stated, at para. 76, that the focus of the hearing should be on “the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it.” This court went on to say that while the effects of the sentence on the offender, and the prospects for rehabilitation warrant consideration, “the objectives of denunciation and deterrence, and the need to separate sexual predators from society for society’s well-being and the well-being of our children must take precedence.”

[13] The sentencing judge also accepted that, in the absence of “exceptional circumstances”, a conviction for Internet luring will normally require a period of significant incarceration, and that this principle should be departed from only in the “rarest of cases.”

[14] She considered the following factors aggravating: (a) the presence of an actual victim (as opposed to a police officer) and the suffering of the victim and her family; (b) the victim was 12-years old, bringing the case within the most serious luring charge; (c) the prolonged nature of the conduct, 6 to 7 months; and (d) the accused was a healthy 24-year-old manipulating a 12-year-old girl.

[15] The following factors were mitigating: (a) a guilty plea, saving the victim from testifying; (b) the absence of a criminal record; (c) a supportive family; (d) a lengthy period on bail; (e) submitting to a psychiatric assessment and counselling; (f) a low risk of re-offending; and (g) genuine remorse.

[16] E.F.’s mother filed a victim impact statement. E.F. herself did not wish to do so. The sentencing judge had no doubt about the sincerity of the mother’s belief about the effect of the crime on her daughter, and no doubt that the accused’s conduct had impacted E.F. However, without a professional assessment, she viewed the mother’s opinion “with caution”. Although E.F. was in counselling, there was no report from her counsellor. There was no evidence that her academic progress had been affected and no evidence that her social life had changed. Although her mother believed that E.F. was “depressed”, the sentencing judge was unable to determine if this was clinical and related to the abuse or “typical ‘teenage’ angst.”

[17] The sentencing judge concluded that there was some negative impact on the victim, but not of such a degree as to be “life-altering”, as described in Woodward.

[18] The respondent had very strong rehabilitative prospects. He pleaded guilty, showed sincere remorse, and spared the victim from testifying. He had no criminal record. He had a strong employment history. He had strong family support. He received counselling. An expert psychiatric report established that he was not a paedophile and was at negligible risk of committing future offences. The respondent had never attempted to meet the victim. The expert testified that someone who has already arranged a meeting is a higher risk than someone who has not. The expert testified that the respondent was a very good candidate for counselling. The respondent spent about four months under restrictive bail prior to sentencing, and four additional months on bail with a curfew.

[19] The sentencing judge accepted the expert evidence that the respondent was not a paedophile and found that while he was emotionally immature, there were good prospects for counselling. He was a naïve man who exercised poor judgment. He had shown insight into his crimes, remorse, empathy and motivation not to let it happen again.

[20] The sentencing judge considered that the most important thing was for the appellant to receive regular counselling. She found there would be less risk to the public if he could continue his counselling and his employment.

[21] The sentencing judge concluded that this was one of the “rarest of cases” in which a conditional sentence was appropriate. She therefore sentenced the respondent to a sentence of two years less a day, with 12 months of house arrest (except while travelling to or from or at his place of employment), followed by a 12-month curfew and 100 hours of community service.

D. The Standard of Review

[22] It is well-settled that absent an error in principle, failure to consider a relevant factor, or an overemphasis of appropriate factors, this court should interfere only if the sentence is demonstrably unfit: R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 90; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at para. 69.

[23] This standard of review is deferential. It recognizes the unique position and experience of the sentencing judge when balancing the competing interests at play in the sentencing process, particularly those of the victim, offender and community. This court observed in Ramage, at paras. 72-73, that the sentencing judge is in the best position to gauge the interests of the community when assessing if a conditional sentence could meet the needs of general deterrence and denunciation.

E. Discussion

[24] A conditional sentence was not appropriate in this case.

[25] Section 172.1(1) of the Code provides:

Luring a child

172.1 (1) Every person commits an offence who, by a means of telecommunication, communicates with

(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1), section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2);

(b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under section 151 or 152, subsection 160(3) or 173(2) or section 271, 272, 273 or 280 with respect to that person; or

(c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under section 281 with respect to that person.

[26] This offence now features a mandatory minimum sentence of one year, when the Crown proceeds by indictment, or six months, when prosecuted summarily: s. 172.1(2). No minimum sentence was in place during the time of the offence at issue. Had one been, the respondent would not have been entitled to a conditional sentence: s. 742.1(b).

[27] In R. v. Folino (2005), 2005 CanLII 40543 (ON CA), 77 O.R. (3d) 641, this court stated that the offence of child luring must be dealt with seriously to protect vulnerable children from predators who use the Internet to lure them into situations in which they can be exploited and abused. The sentencing objectives of denunciation and deterrence require a sentence of incarceration in most cases. A conditional sentence will only be appropriate in the “rarest of cases”.

[28] While I acknowledge the sentencing judge’s appropriate concern for the rehabilitation of a naïve and immature offender, it is my respectful view that a conditional sentence was unfit in the circumstances of this case. That sentence did not give adequate expression to denunciation and deterrence. Nor did it give adequate consideration to the impact of the offence on the victim. It also ignored aggravating factors.

[29] I will begin by identifying the aggravating factors that should have been considered. I will then address the impact of the offence on the victim, distinguish this case from others in which a conditional sentence was imposed for child luring, and, finally, explain why denunciation and deterrence call for a sentence of incarceration.

Failure to consider aggravating factors

[30] In her analysis of the appropriate sentence, the sentencing judge failed to take into account that, in the course of committing the offence of child luring, the respondent repeatedly and successfully urged the victim to make and distribute child pornography by sending naked images of herself to him, an offence under s. 163.1 of the Code.

[31] Although the respondent did not plead guilty to distribution or possession of child pornography, it was agreed that the court could consider the child pornography as part of the circumstances of the offence. The child pornography offence featured a mandatory minimum sentence. A conviction for that offence would have precluded the respondent’s conditional sentence.

[32] The trial judge made no reference to the production of child pornography in her analysis of aggravating factors. The exploitation of the victim to produce made-to-order child pornography, for his own sexual gratification, was a significant aggravating factor: see R. v. Jarvis (2006), 2006 CanLII 27300 (ON CA), 211 C.C.C. (3d) 20 (C.A.), at para. 31; R. v. R.B., 2014 ONCA 840, 327 O.A.C. 20, at para. 10.

[33] Once the victim supplied nude photographs of herself to the respondent, he was able to manipulate her to continue to supply more. I agree with the observation in R. v. Hajar, 2014 ABQB 550 at para. 18, that “[t]he potential for such images to be shared with others may, even in the absence of any extortion by the offender, make the young victim more sexually compliant in an attempt to maintain some indirect control over the images, thus encouraging what appears to be de facto consent.”

[34] It was also aggravating that the respondent groomed his child victim by cultivating her trust, steering the conversations towards sexual topics, and schooling her about sexual matters. It may have been a fortunate circumstance of geography that the appellant did not attempt to meet with the victim, precluding his interference from escalating to direct physical contact.

Inadequate consideration for impact on victim

[35] The offence has had, and likely will have, a significant impact on the victim.

[36] Early in her analysis, the sentencing judge identified the principle applicable to cases such as this, set out by this court in Woodward, to the effect that the focus of the hearing should be on the harm caused to the child.

[37] The mother’s victim impact statement stated that E.F. refused to complete the child/youth victim impact statement. Victim impact statements may be completed by family members where the victim is dead, ill or incapable of making a statement: s. 722(2)(d). In this case, the defence did not object to the introduction of the mother’s victim impact statement. Nor did the defence dispute that the harm identified in the mother’s statement was referable to the abuse by the respondent.

[38] E.F.’s mother described her daughter as having become “a very guarded, quiet, reserved stand-offish, distant and depressed young lady of 16 years” and said this had changed the entire family dynamic. E.F. no longer had a relationship with her sister. Her sister had shut her out of her life, refused to acknowledge E.F. as her sister, and found her “gross”, “stupid” and “disgusting”.

[39] The mother wrote that E.F. refused to talk to her family about anything in her life. This made it difficult to explain her conduct to relatives, without telling them the truth about why “E.F. acts like she does.”

[40] The mother’s statement continued:

Although she has told us she was relieved when we discovered what was going [on] because it immediately put a stop to the control he had over her and the manipulation he had over her, she states she feels she can’t trust us or talk to us any longer since this all took place. She has been going to counselling for the past 4 years because of this and we still feel she is not over it, it is still present in her life and seems to dictate who she has become, which is so very sad for a beautiful young lady who has so much potential. We wonder if she will ever heal, find closure, be able to accept what happened, put it behind her and move on with her life in a healthy, happy, positive way.

We believe her innocence, her childhood and her ability to love and be loved have been stripped away because of the horrific relationship she had with Rafiq.

[41] The mother’s statement makes it clear that, in her view, the victim’s self-exclusion from her family was directly attributable to the actions of the respondent, and not the result of teenage angst.

[42] The mother’s evidence aside, in R. v. D.D. (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), at paras. 37-38, this court noted that the tragic consequences of the exploitation of young children by adult sexual predators include the following: immediate physical and psychological harm, the inability to form a loving caring relationship as an adult, and a proclivity to themselves becoming abusers as adults.

[43] In D.D., this court referred to the decision of the Court of Appeal of Alberta in R. v. S. (W.B.) and R. v. P. (M.) (1992), 1992 CanLII 2761 (AB CA), 73 C.C.C. (3d) 530, at p. 535, in which that court observed:

One consequence of being abused sexually may be that the child will never be able, as an adult, to form a loving caring relationship with another [adult] being always fearful, even unconsciously, that such a partner will use sexual acts to hurt him or her rather than as an intimate expression of caring and affection. There is no empirical way of proving that a particular child victim’s emotional trauma will or will not make it more difficult or impossible for him or her to love another, without fear of abuse. We have only the recorded experiences of men and women who attribute their difficulties as adults in forming mature and fulfilling relationships to their having been abused sexually when they were children.

[44] While these observations were made in the context of direct physical sexual abuse, the Internet has made it possible for abusers to get into the victim’s head and abuse remotely. The abuser can tell the victim what to do and how to do it, and record it – in text, video, or photograph – all for the abuser’s gratification. Thus, through manipulation and control over time by an adult abuser, the child victim becomes a participant in her own sexual abuse.

[45] I see no reason to believe that the psychological consequences of such abuse are likely to be significantly less serious than the consequences of direct physical sexual abuse. The extent to which they will occur in any particular victim is impossible to predict. In this case, however, the mother had the advantage of observing her daughter over a four-year period. She spoke poignantly about her isolation from her sister and her family, and the impact of the events on her “ability to love and be loved.”

[46] In my view, it was an error to discount the impact of the offence on the victim.

Conditional sentences for child luring

[47] The prolonged abuse of an actual, very young girl distinguishes this case from others in which this court has imposed conditional sentences: see e.g. R. v. Folino; R. v. El-Jamel, 2010 ONCA 575, 261 C.C.C. (3d) 293.

[48] In Folino, the “victim” was an undercover police officer posing as a 13-year-old girl. The offence took place over a 19-day period, and involved six Internet chats and eight emails. In El-Jamel, the appellant had sexually explicit chats with a police officer, believing she was 12 years old. The offence took place over a three-day period.

[49] In contrast, this case involved a real victim – someone the respondent knew to be a naïve 12 year-old girl. He induced her to make and transmit pornographic pictures, insert items in her vagina, masturbate and participate in sexually explicit chats – all for his sexual gratification. He did this repeatedly, over a span of six months. In my view, his conduct was far more harmful than arranging a sexual encounter with an adult police officer believing she was a child.

Denunciation and deterrence

[50] I agree with the Crown’s submission that the objectives of denunciation and deterrence require a custodial sentence.

[51] I appreciate that following a guilty plea, and in the absence of the victim, the sentencing hearing understandably focussed on the offender.

[52] But a conditional sentence was not an appropriate outcome. I say this despite the respondent’s youth, remorse, prospects for rehabilitation and absence of threat to society. A custodial sentence is required to denounce his conduct and to make it clear to those who would use the Internet to abuse young children that such conduct has serious punitive consequences.

[53] Unlike many of the child luring cases that come before the court, the respondent’s conduct was not simply preparatory to a crime, but amounted to distinct serious offences repeatedly committed on a 12 year-old child over a prolonged period of time.

[54] Arguably, the most recent amendment to this offence imposing a mandatory minimum sentence for luring should require the appropriate range of sentences to be revised upward even further: see e.g. Woodward, at para. 58.

F. Disposition

[55] For these reasons, I would grant leave to appeal sentence, allow the appeal, and impose a sentence of two years less a day. The appellant shall forthwith surrender into custody and the sentence begins when the respondent is taken into custody. The respondent is entitled to the general one-to-one credit for time served on his conditional sentence to the date of release of these reasons: R. v. G.C.F. (2004), 2004 CanLII 4771 (ON CA), 71 O.R. (3d) 771 (C.A.). If necessary, a warrant may be issued for the respondent’s arrest.

“G.R. Strathy C.J.O.”

“I agree P. Lauwers J.A.”

“I agree Speyer J. (ad hoc)

Released: November 12, 2015