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. 486.5(1), (2), (2.1), (3), (4), (5), (6), (7), (8) or (9) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.5 (1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.

(2) On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is satisfied that the order is in the interest of the proper administration of justice.

(2.1) The offences for the purposes of subsection (2) are

(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or

(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).

(3) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.

(4) An applicant for an order shall

(a) apply in writing to the presiding judge or justice or, if the judge or justice has not been determined, to a judge of a superior court of criminal jurisdiction in the judicial district where the proceedings will take place; and

(b) provide notice of the application to the prosecutor, the accused and any other person affected by the order that the judge or justice specifies.

(5) An applicant for an order shall set out the grounds on which the applicant relies to establish that the order is necessary for the proper administration of justice.

(6) The judge or justice may hold a hearing to determine whether an order should be made, and the hearing may be in private.

(7) In determining whether to make an order, the judge or justice shall consider

(a) the right to a fair and public hearing;

(b) whether there is a real and substantial risk that the victim, witness or justice system participant would suffer harm if their identity were disclosed;

(c) whether the victim, witness or justice system participant needs the order for their security or to protect them from intimidation or retaliation;

(d) society's interest in encouraging the reporting of offences and the participation of victims, witnesses and justice system participants in the criminal justice process;

(e) whether effective alternatives are available to protect the identity of the victim, witness or justice system participant;

(f) the salutary and deleterious effects of the proposed order;

(g) the impact of the proposed order on the freedom of expression of those affected by it; and

(h) any other factor that the judge or justice considers relevant.

(8) An order may be subject to any conditions that the judge or justice thinks fit.

(9) Unless the judge or justice refuses to make an order, no person shall publish in any document or broadcast or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information given or submissions made at a hearing under subsection (6); or

(c) any other information that could identify the person to whom the application relates as a victim, witness or justice system participant in the proceedings. 2005, c. 32, s. 15; 2015, c. 13, s. 19

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

Date: August 3, 2018

Docket: C62348

Judges: Feldman, Paciocco and Fairburn JJ.A.

Between

Her Majesty the Queen

Respondent

and

A.H.

Appellant

Counsel:

Andrew Bigioni, for the appellant

Rebecca DeFilippis, for the respondent

Heard: February 7, 2018

On appeal from: The conviction entered on June 6, 2016 by Justice Thomas A. Bielby of the Superior Court of Justice, sitting without a jury, with reasons reported at 2016 ONSC 3709, and the sentence imposed on October 13, 2016, with reasons reported at 2016 ONSC 6364.

Feldman J.A.:

Introduction

[1] The appellant was convicted of child luring under s. 172.1(1)(b) of the Criminal Code. The indictment charged that the appellant believed the complainant was under 16 years of age. The complainant was a 15 year old friend of the appellant's twin daughters.

[2] The main issue on the appeal is whether the trial judge erred in law in finding that the Crown proved beyond a reasonable doubt that the appellant subjectively believed that the complainant was under 16 years old and therefore had the mens rea to commit the offence as charged. Specifically, the appellant argues that it was unreasonable for the trial judge to have convicted him based on the finding that the accused would have known the complainant's "approximate age", and further, that there was insufficient evidence to support a finding that the appellant had the subjective belief that the complainant was under 16.

[3] The appellant also argues that: the trial judge failed to provide the appellant, a self-represented accused, sufficient assistance, and that he erred in dismissing the appellant's s. 8 Charter application. The appellant also seeks leave to appeal his sentence, on the basis that it was unfit because the sentence was influenced by a mandatory minimum provision that has since been struck down as unconstitutional.

Background Facts

[4] The appellant is the father of twin daughters who were friends of the complainant, a girl they went to school with. The complainant turned 16 on October 24, 2013. Between August 23, 2013 and October 20, 2013, when she was 15, Facebook messages were sent from the appellant's Facebook account to the complainant's account, including:

1. on August 28, 2013, a picture of a penis was sent, along with the message: "Hey, send me your email address. I want to send you some pics";

2. on August 30, 2013, a different picture of a penis was sent, with the message: "I swear by the moon and the stars in the sky. I want to suck your pussy n boobs… n I want you to suck me dick…then me take your virginity..";

3. on September 26, a message was sent that said: "u want to suck me dick…lol…I want to suck your pussy and boobs";

4. also on September 26, ten minutes later, a third picture of a penis was sent;

5. on October 20, a fourth picture of a penis was sent, together with the following message: "satisfaction guaranteed…with life time warranty what us see is what u get… take it in your mouth and suck it babes. I gon suck your sweet pussy n lovely boobs"; and

6. also on October 20, around 2 hours later, a picture of a man and a woman in a sexual position was sent with the message: "u still a virgin".

[5] The complainant, S.K., testified that she met the appellant at the mosque when she was 14 and in grade 8. The appellant's twin daughters, Aa. H. and Ai. H., are one year younger than S.K., born on September 25, 1998. The appellant would often pick up the three girls at school, take them out for lunch, and drop them back at school. Occasionally, he would take them to the mall. The complainant described the appellant as "really good friends" with her uncle. She testified that the appellant knew the complainant's father as well; they attended the same mosque and, at one time, the two families lived in the same building for a period spanning three years.

[6] Both of the appellant's daughters testified. Aa. H. said that she met S.K. in grade 9 and they became close friends. She also testified that the appellant had initially met S.K. at the mosque. With respect to what the appellant knew about S.K.'s age, she gave the following testimony:

Q. Okay. And [S.K.], you said she's a little older than you?

A. Yeah.

Q. Do you know how much older?

A. One year.

Q. Did you tell your dad that she was older than you?

A. He knows. He, he was friends with her dad, so they talk.

Q. Okay. So you believe him to know her age because of her dad and him being friends?

A. Yeah.

Q. Did you ever tell him what grade she was in?

A. Yeah.

Q. And what grade were you in when you told him what grade she was in?

A. Well, when she first came to the school, he's like, "Oh, really, what grade is she is," and then I'm like, "She in grade 10," and I'm in grade 9, so, yeah.

Q. And I understand it, in grade 9, you were 14?

A. Yeah.

[7] Ai. H. said that S.K. was a year older than she was and a grade ahead of her. She confirmed that their fathers knew one another through their mosque and that the appellant sometimes took her, her sister, and S.K. all to lunch. She also testified that she told her father that she and S.K. were in two classes together.

[8] The appellant was charged with two offences: sending the messages to a person he believed was under 16, i) for the purpose of exposing his genitals for a sexual purpose to a person under 16, and ii) for a sexual purpose inviting a person under 16 to touch his body. He represented himself, except that amicus was appointed to cross-examine both of the appellant's twin daughters and the complainant, S.K. The appellant did not testify at the trial.

Findings by the Trial Judge

[9] The main issue at the trial involved two aspects of identity. As the first count charged the appellant with sending a picture of his penis to the complainant, the Crown was required to prove that the penis in the pictures was the appellant's. In the end, the trial judge was not satisfied of that fact beyond a reasonable doubt and entered an acquittal on that count.

[10] The second aspect, which related to both counts, was the identity of the sender of the Facebook messages. The witnesses testified that the appellant went by a nickname reflected in the email address under which the Facebook account that sent the messages was registered, but in submissions, the appellant denied it was him. The trial judge was satisfied beyond a reasonable doubt that the appellant had sent the messages based on his finding that the email address associated with the Facebook account that sent the messages was the appellant's.

[11] On the other elements of the offence of child luring, the trial judge found that the messages constituted an invitation to sexual touching. On the issue of the complainant's age he stated at para. 219 of his reasons:

In regards to S.K.'s age, the accused would have known her approximate age. He had met her a few years previously at the mosque where both families attended. S.K.'s father was a friend of the accused and S.K. had been in the presence of the accused when she was with his daughters.

Issues on the Appeal

[12] The appellant raises four issues on the appeal:

1. The verdict is unreasonable because the trial judge convicted the appellant by finding that he would have known the complainant's approximate age, rather than that he believed the complainant was under 16, and there was no evidence that the appellant had the subjective belief that the complainant was under 16;

2. The trial judge erred by failing to provide sufficient assistance to the appellant with his Charter challenges as a self-represented accused;

3. The trial judge erred in dismissing the appellant's Charter application to exclude the evidence found at his home, the photo of his computer screen and his cell-phone; and

4. The sentence of 15 months' incarceration was influenced by the mandatory minimum of 1 year imposed by s. 172.1(2)(a), which has since been struck down as contrary to s. 12 by this court in R. v. Morrison, 2017 ONCA 582, 136 O.R. (3d) 545, leave to appeal allowed, [2017] S.C.C.A. No. 290, decision reserved by the Supreme Court on May 24, 2018.

Issue 1: Is the Verdict Unreasonable Because There Was No Evidence That the Appellant Believed That the Complainant Was Under 16?

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

Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to

(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;

[14] The wording makes it an offence to communicate sexually explicit material to a person who is actually under 16, or to a person whom the accused believes to be under 16 years, even if the person is not. This latter form of the offence allows the police to communicate with a suspected perpetrator by pretending to be under 16 in order to confirm that perpetrator is engaged in child luring.

[15] In this case, the complainant was actually under 16 at the time the Facebook messages were sent by the appellant's device and received by the complainant's Facebook account.[1] However, the appellant was charged with communicating with a person whom he believed was under 16, and therefore, the Crown was required to prove that subjective belief.

[16] At the time of the trial, s. 172.1(3) of the Code provided that where the complainant was represented to the accused as being under 16, then in the absence of evidence to the contrary, that constituted proof of the accused's belief. That section has since been declared unconstitutional by this court in R. v. Morrison. Although Crown counsel at trial mentioned subsection (3), she did not rely on it, nor did the trial judge refer to it in his reasons.

[17] In his reasons for judgment, the trial judge set out the three essential elements of the offence as charged: 1) an intentional communication by computer or electronic device; 2) the communication was with a person the accused believed to be under 16; and 3) the purpose of the communication was for sexual touching. The Crown's submission with respect to proving the second element, which the trial judge summarized at para. 175 of his reasons, was that the appellant would have known S.K.'s age because she was a friend of his daughters who was a year older than them. He had met her at the mosque when she was 14 and the appellant's family were friends with S.K.'s family.

[18] At para. 176, the trial judge also referred to the Crown's submission with respect to s. 172.1(4). That section provides:

It is not a defence to a charge under paragraph (1)(a), (b) or (c) that the accused believed that the person referred to in that paragraph was at least 18, 16 or 14 years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

[19] Crown counsel at trial submitted that there was no evidence that the appellant took any reasonable steps to ascertain the complainant's age. Again, while that submission was made, the trial judge did not refer to it or to s. 172.1(4) in his findings regarding the appellant's belief in the age of the complainant.

[20] As the appellant did not raise the defence that he believed the complainant was 16 or over, there is an issue whether s. 172.1(4) is applicable, and whether the Crown may use the failure to make reasonable inquiries to prove an accused's belief that a complainant is under 16. That issue may also be determined by the Supreme Court in its decision in R. v. Morrison, currently under reserve in that court. As the trial judge did not use the appellant's failure to make reasonable inquiries as a basis for finding he believed the complainant was under 16, there is no need to deal with the issue of the proper interpretation and application of s. 172.1(4) in this case.

[21] The test for unreasonable verdict from R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, is whether the verdict was one that a properly instructed jury, acting judicially could reasonably have rendered. The reviewing court is entitled to re-examine and reweigh the evidence.

[22] As quoted above, in his reasons, the trial judge found that the appellant "would have known [S.K.'s] approximate age." The appellant submits that by reducing an essential element of the offence to an approximation, the trial judge reached an unreasonable verdict. I agree that had the trial judge found that the appellant believed that S.K. was "around the age of 16", that would have been an error in law. The appellant had to believe she was under 16. However, it is clear from the reasons, read as a whole, that the trial judge found that the appellant believed the complaint to be under 16.

[23] The trial judge's reference to her approximate age must be read in context. By correctly reviewing the elements of the offence, the trial judge demonstrated that he knew that in order to convict the appellant, the Crown had to prove beyond a reasonable doubt that the appellant believed the complainant was under 16 years of age. While the trial judge found that the appellant did not know the complainant's exact age – only her "approximate age" – the Crown was not required to prove that the appellant knew the complainant's exact age. Read contextually, the reasons demonstrate that the trial judge was satisfied that, although the appellant did not know the complainant's exact age, he believed that she was under the age of sixteen years. The trial judge's meaning is reinforced by the language he used in referring to the mens rea component in his subsequent reasons on sentence, where he stated at para. 5: "The Offender was aware that, at the time, the complainant was only 15 years old."

[24] In my view, based on the trial record, in particular the evidence of the complainant and of the appellant's daughters, the trial judge was entitled to find that the appellant believed that the complainant S.K. was under the age of 16. There was ample evidence to support that conclusion. The appellant was very involved with his twin daughters, who were 14 at the time of the offence. He had a lot of contact with S.K.'s family. He knew them from the mosque, from living in the same building for a number of years, and he knew her father and was a very good friend of her uncle. He also had a lot of contact with S.K. herself by picking her up and taking her for lunch with his daughters. The appellant's daughter, Aa. H., testified that her father asked her what grade S.K. was in when she came to his daughter's school, and she told him grade 10. At that time, the twins were in grade 9 and they were 14. The appellant's other daughter, Ai. H., similarly testified that she told her father that she and S.K. were in two classes together around this time.

[25] From all of this evidence, the trial judge was entitled to conclude that the appellant would have known S.K.'s approximate age, and that he believed she was under 16. The verdict is not unreasonable.

[26] I would not give effect to this ground of appeal.

Issue 2: Did the Trial Judge Err by Failing to Give the Appellant Sufficient Assistance With His Charter Issues?

[27] The appellant submits that the trial judge erred by failing to raise and address a breach of s. 10(b) of the Charter, and by failing to give the appellant sufficient assistance with his s. 8 motion to exclude the evidence seized from his dwelling.

[28] The appellant was arrested at the door of his apartment. He told the officers he needed to get his shoes, turned around and went back into the apartment. The officers followed him in. One accompanied him into his bedroom while the other stayed in the kitchen where he observed the open computer and the cell phone. He took a photograph of the screen of the computer, which showed an open Facebook page, which displayed the appellant's email address and read: "Your account has been deactivated". The officer then seized both items.

[29] Once the officers and the appellant were seated in the police cruiser, one of the officers read the appellant his right to counsel. This was six minutes after the initial arrest.

[30] The appellant submits on appeal that that delay constituted a breach of his s. 10(b) right, to be informed of his right to counsel without delay, and that the trial judge erred by failing to raise and address the issue. The Crown argues that there was no air of reality to a s. 10(b) breach based on all the evidence, and that the trial judge made no error in failing to address it.

[31] I would not give effect to the appellant's argument on this ground. A trial judge's duty to assist a self-represented accused is "circumscribed by a standard of reasonableness" and this duty is not engaged "on the mere scent or intimation of a possible Charter infringement": R. v. Richards, 2017 ONCA 424, 349 C.C.C. (3d) 284, at paras. 111 and 113. Therefore, while a trial judge has a duty to assist a self-represented accused, including raising legal issues that should be addressed, a trial judge is not required to raise and knock down issues that do not have an arguable chance of success to benefit the accused.

[32] A voir dire was held to address the s. 8 Charter issue where facts relevant to the right to counsel issue were also explored in testimony. On the voir dire, Constable Durgan testified that when the appellant answered the door, the officer advised him that he was under arrest for invitation to sexual touching. The appellant turned around and walked back into the apartment. Crown counsel asked the officer when he gave the appellant the right to counsel and why he waited until they were in the police vehicle. His explanation was that he wanted to do it in a safe environment. Because the appellant walked back into the apartment, he had to keep control of him and ensure everyone's safety. Once they were in the police car, he could take out his notebook and read the rights to counsel and caution in a safer environment.

[33] The trial judge was entitled to accept this explanation for the short delay in reading the appellant his right to counsel. A delay in informing an arrestee about the right to counsel is permitted on the basis of concerns for officer or public safety: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 2 and 41, and R. v. Gonzales, 2017 ONCA 543, 385 C.R.R. (2d) 115, at para. 123; see also as an example, R. v. Dhindsa, 2013 ONCJ 32, at para. 51. Furthermore, the police did not question the appellant during the six minute time period and no statements were made. Because of all the circumstances, the facts do not raise a prima facie issue under s. 10(b), and it was reasonable for the trial judge not to consider s. 10(b).

[34] With respect to the s. 8 motion, the trial judge explained the issue to the appellant, facilitated the holding of the voir dire where all the relevant witnesses were called by the Crown, then gave the appellant the opportunity to see if he could find duty counsel over lunch to give him any assistance he needed with the argument. After the lunch break, the appellant reported that he was not able to get much assistance. He first asked for an adjournment, then withdrew that request and sought to withdraw the application. However, the trial judge directed the Crown to argue the s. 8 issue, the appellant made brief submissions that the police should have had a warrant to search, and the trial judge gave his ruling on it.

[35] The appellant's argument on the appeal is that the trial judge was obliged to provide the appellant with additional assistance to argue his Charter application. He refers to some examples from the Canadian Judicial Council's Statement of Principles on Self-Represented Litigants and Accused Persons, published September 2016, such as explaining the case law to allow the accused to make critical choices, providing information to assist in understanding rights or asserting arguments, and making referrals to agencies for education advice and assistance, or questioning witnesses.

[36] These examples of additional assistance are always recommended in the context and circumstances of each case and each accused. In this case, the trial judge lived up to his obligation. The appellant was articulate and capable before the court. The trial judge explained procedures and choices to be made as the trial progressed. He held a voir dire to hear the evidence regarding the arrest and search. The witnesses were all cross-examined by the appellant. The trial judge gave the appellant an opportunity to seek any assistance he wanted at the lunch break and was prepared to give an adjournment, although he was clearly reluctant to do so at that stage with the trial proceeding hopefully within the allotted timeframe.

[37] Finally, the legal issues were clear and familiar to the judge. He had to deal with a warrantless search of a home upon arrest. He received submissions from both sides, then made his ruling. This was not a situation where the unrepresented accused did not understand the language or the proceedings. Because he was not legally trained, the trial judge assisted him procedurally along the way, gave him the opportunity to get assistance, did not acquiesce in the appellant's request to withdraw his motion, but heard it fully and gave his reasons based on the law. In my view, there is no basis to suggest that the trial judge failed to provide sufficient guidance to the appellant, such that he did not receive a fair trial as a self-represented accused.

Issue 3: Did the Trial Judge Err in Dismissing the s. 8 Charter Application and Admitting the Seized Evidence?

[38] In oral reasons delivered following the argument, the trial judge concluded that the Crown had met its burden of proof on a balance of probabilities that the seizure was reasonable in the circumstances. He found that once Constable Durgun had placed the appellant under arrest, he was in his care and custody. As a result, the two officers were required to follow him into the apartment and were lawfully there. They were legally entitled to seize the computer and the cell phone on three bases: 1) a search incident to arrest and seizure of items that appeared to be related to the crimes charged; 2) the items were in plain view on the kitchen counter as they walked through the kitchen to the bedroom with the appellant; and 3) s. 489(2)(b) of the Criminal Code, which allows officers to seize without a warrant anything they believe on reasonable grounds was used in the commission of an offence.

[39] The appellant submits on this appeal that the trial judge erred by finding that the officers were lawfully in the dwelling. He argues that each of the justifications for the seizures depends on the lawfulness of the officers' presence in the dwelling. The appellant relies on cases such as R. v. Feeney, [1997] 2 S.C.R. 13 at para. 43, R. v. Silveira, [1995] 2 S.C.R. 297, at para. 140, and R. v. Golub (1997), 117 C.C.C. (3d) 193 (Ont. C.A.) for the proposition that the officers breached the appellant's right to privacy in his home by entering without permission.

[40] However, in those cases, the police entered the home either before they had made an arrest, or in Golub, in order to search following the arrest. In this case, the officers arrested the appellant at the door, and only entered his apartment when he turned away and entered it following his arrest. First, they needed to accompany him in order to maintain control over him for officer safety and second, to prevent him from destroying evidence. The police had been dispatched to arrest the appellant when the investigating officer, who was interviewing the complainant and the appellant's daughters, observed the appellant at the police station leaving in a hurry. The investigating officer was concerned about the destruction of evidence and therefore authorized the appellant's immediate arrest. In the circumstances that occurred, the officers' entrance into the apartment was lawful.

[41] The officers did not proceed to conduct a search without a warrant. They would not have been entitled to do so in the circumstances. However, they observed the computer partly open and the cell phone in plain view. They were entitled to seize items they believed constituted evidence of the offence in accordance with s. 489(1)(b) of the Code. Therefore, the trial judge did not err in concluding that the appellant's right under s. 8 of the Charter was not breached.

[42] As there was no Charter breach, there is no need to consider s. 24(2).

Issue 4: Sentence Appeal

[43] The trial judge sentenced the appellant to 15 months' imprisonment together with one year probation. That sentence was imposed before the mandatory minimum of 12 months' imprisonment for the offense of child luring provided by s. 172.1(2)(a) was struck down by this court in R. v. Morrison as contrary to s. 12 of the Charter.

[44] In his reasons for sentence, the trial judge noted that the appellant continued to deny that he had committed the offence and expressed no remorse. He also declined to provide the author of the pre-sentence report with the names of any people to contact or with authority to contact the Children's Aid Society, which had been involved with the family. The complainant declined to provide a victim impact statement. The trial judge accepted that she wished to put the ordeal behind her. During her testimony at the trial, she was at times brought to tears. The trial judge also stated, referring to this court's decision in R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 58, that child luring over the internet has become "a pervasive social problem" in the community.

[45] At the sentencing hearing, the Crown submitted that deterrence and denunciation were the principal sentencing objectives, and that given the lack of remorse, rehabilitation should not be given much consideration. The appellant suggested a shorter sentence with probation and community service. He also raised the concern of his continuing medical issues arising from a serious car accident in 1997, which left him unable to work, and the difficulties that would pose for him in prison.

[46] Regarding the appropriate range for the offence of child luring, the trial judge referred again to the case of Woodward, as well as the cases of R. v. Jarvis (2006), 211 C.C.C. (3d) 20 and R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481 from this court. In Jarvis, which pre-dated the enactment of the mandatory minimum on August 9, 2012, the court upheld a 6 month sentence following a guilty plea, but called it lenient, and referred to an established range from trial decisions of 12 months to 2 years. In Woodward, which also pre-dated enactment of the mandatory minimum, Moldaver J.A. noted that Parliament had doubled the maximum sentence from 5 years to 10 years since Jarvis, and suggested at para. 58 that, if evidence were properly tendered showing "that the offence of luring has become a pervasive social problem", then a range of 3 to 5 years could "well be warranted" in order to "deter, denounce and separate from society adult predators who commit this serious crime." In both Woodward and Dragos, the complainant was actually lured to a sexual encounter with the accused. The trial judge accepted that the range in Jarvis had been modified by Woodward.

[47] The trial judge then noted that the only mitigating factor was that the appellant had no criminal record. He specifically rejected the Crown's submission to treat the lack of remorse as an aggravating factor. He referred to the principles of sentencing, including proportionality. He also accepted that the appellant's conduct had had a significant impact on the complainant.

[48] Ultimately, the trial judge accepted the Crown's submission that a sentence of 15 months' incarceration followed by 1 year of probation was appropriate. He concluded that although 15 months was below the start of the range suggested in Woodward, it was not manifestly unjust, given that the luring in this case was not successful, was over a relatively short period of time, and took into account the mitigating factors of the lack of a criminal record and that the appellant did not violate his bail conditions.

[49] The Crown on the appeal acknowledges that because the mandatory minimum sentence was struck down in Morrison after the sentence was imposed in this case, a fit sentence should be determined by this court. However, the Crown's submission is that regardless of the former minimum, 15 months is a fit sentence for this offender and should be upheld. The appellant's position is that the mandatory minimum created an "inflationary floor" that had the effect of increasing the sentence that would otherwise have been imposed, and that a fit sentence is 6 months' imprisonment.

[50] The appellant submits that because the complainant did not see the messages until several months after they were sent and after the appellant had stopped sending them, and did not reply, plus the appellant did not attempt to arrange an encounter or groom her for a sexual encounter, that a lower sentence is warranted.

[51] I would not give effect to this submission. The fact that the appellant's approach was direct and unsubtle, and that he gave up when he got no response, are not mitigating factors for which the appellant is entitled to any credit. The appellant knew the complainant and had direct contact with her in his role as the father of her friends. While this may not constitute a direct fiduciary relationship, it is akin to one. The complainant was actually under 16. The messages that were sent were abhorrent, and if the complainant had been lured to respond, could have led to serious sexual offences.

[52] This court has repeated many times that where adult sexual predators exploit innocent children, deterrence and denunciation and the need to separate the perpetrators from society are the predominant objectives of sentencing: Woodward, at para. 76. In Jarvis, this court commented that 6 months is a lenient sentence. In R. v. Gucciardi, 2017 ONCJ 770, a case that was decided after Morrison, the accused was sentenced to 12 months' incarceration in order to give effect to the objectives of deterrence and denunciation, where there were a number of mitigating factors not present in this case, including the fact that the accused pleaded guilty, expressed remorse, had a supportive family, and had taken positive steps toward his rehabilitation.

[53] In my view, the sentence of 15 months imposed by the trial judge is a fit sentence for the appellant in all the circumstances of this case.

Result

[54] I would dismiss the appeal against conviction, and grant leave to appeal the sentence, but dismiss the sentence appeal.

Released: August 3, 2018

"K. Feldman J.A."

"I agree. David M. Paciocco J.A."

"I agree. Fairburn J.A."

[1] The evidence was that the complainant did not actually look at the messages on her Facebook account until several months later, after she had turned 16.