Court of Appeal for Ontario

Date: December 11, 2019

Docket: C63899

Judges: Benotto, Miller and Trotter JJ.A.

Between

Her Majesty the Queen Respondent

and

Douglas Cowell Appellant

Counsel:

• Melanie J. Webb, for the appellant
• Jennifer A.Y. Trehearne, for the respondent

Heard: June 20, 2019

On appeal from: The conviction entered on August 12, 2016, and the sentence imposed on May 15, 2017, by Justice Ronald A. Minard of the Ontario Court of Justice.

Trotter J.A.: (for the majority on all issues except the constitutional challenge to the mandatory minimum sentence under s. 172.1(2)(a); dissenting on the mandatory minimum under s. 172.1(2)(a))

A. Introduction

[1] Douglas Cowell was convicted of child luring, contrary to s. 172.1(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, and communicating with a person he believed to be under the age of eighteen years for the purpose of obtaining sexual services for consideration, contrary to s. 212(4).[1]

[2] The appellant was one of 104 people caught in a police sting operation. He responded to an advertisement posted on Backpage.com – a website used to buy and sell sex – of a person posing as an adolescent female. In fact, the ad was posted by a male police officer who used the name "Kathy".

[3] The appellant responded to the ad by texting "can you squirt for me when eaten?" Over the next two days, further messages were exchanged, in which the poster said that "she" was 16 years old. A meeting was arranged for the purpose of exchanging money for sex, possibly including anal intercourse. When the appellant arrived at the designated meeting place – a hotel room – he was arrested.

[4] The appellant testified that he knew that he was not conversing with a 16-year-old girl. He thought he was engaged in a role-play with someone who was 25-28 years old. The appellant explained that, even though he went to the hotel room as arranged, he never intended to have sex with anyone. This was despite having $200 in his front pocket (the agreed upon price), more money in his wallet, as well as condoms which "Kathy" had just asked him to purchase.

[5] The trial judge rejected the appellant's evidence. He concluded that, while it would have been open to the Crown to rely upon the presumption in s. 172.1(3) of the Criminal Code (subsequently declared unconstitutional in R. v. Morrison, 2019 SCC 15, 375 C.C.C. (3d) 153 ("Morrison (SCC)", discussed below), it was not necessary to do so. The trial judge found that the appellant actually believed that "Kathy" was 16 years old. The appellant was convicted.

[6] The trial judge rejected the appellant's constitutional challenge under s. 12 of the Canadian Charter of Rights and Freedoms to the mandatory minimum sentences in ss. 172.1(2)(a) and 212(4) of the Criminal Code. He sentenced the appellant to the mandatory minimum sentences of 12 months' imprisonment under s. 172.1(2)(a), and 6 months under s. 212(4), to be served concurrently. He imposed probation for two years and made other collateral orders, including a $400 victim surcharge under s. 737 of the Code.

[7] The appellant challenges his convictions on two grounds. First, he submits that the trial judge erred in dismissing his application under s. 11(b) of the Charter. Second, he contends that the trial judge misapprehended parts of his evidence. He also appeals his sentence and renews his constitutional challenges under s. 12 of the Charter.

[8] The following reasons explain why I would dismiss the appeal from conviction. I would not reduce the sentence imposed by the trial judge, which was fit in the circumstances. However, I would allow the sentence appeal in part by declaring the mandatory minimum sentence in s. 172.1(2)(a) to be of no force or effect because it mandates the imposition of grossly disproportionate sentences in reasonably foreseeable circumstances. I would dismiss as moot the constitutional challenge to the mandatory minimum sentence under s. 212(4) of the Criminal Code. Finally, I would set aside the victim surcharge.

B. Factual Overview

[9] In October 2014, Detective Thai Truong of the York Regional Police posted the following advertisement on Backpage.com:

^^BACK only TONIGHT – Tight Brand New girl in richmond hill today only – waiting ^^ - 18

[10] The ad included two photos of a female clad in underpants and a bra. Her head and face were not visible. It was a police officer in her 30s. The ad included a cell number and the following email address: kathyblunt16@gmail.com. Detective Truong testified that he included the number "16" purposely to suggest the prospective age of "Kathy".

[11] In the early afternoon of October 26, 2014, the appellant texted, "Can you squirt for me when eaten". "Kathy" responded "ewww" and then "im 16 that's gross." Over the next two days, the appellant and "Kathy" exchanged messages. The appellant's messages were sexually explicit. "Kathy" presented as an inexperienced 16-year-old sex trade worker. She said that she was "fresh" and that "u better not be a cop I cud get in big trouble cause of my age". When the appellant suggested they get together in his truck, "Kathy" again wrote that "she" was 16.

[12] The appellant arranged to meet "Kathy" at a hotel in Markham. On the day they were to meet, the appellant wrote, "Little nervous here with your age and driving from brampton." They negotiated a price of $200, with an extra $50 if anal intercourse occurred. On his way to the hotel, "Kathy" asked the appellant to bring condoms, bottled water, and bubble gum. The appellant arrived at the hotel room with these items and the cash described above.

[13] At the time of trial, the appellant was 54 years old, with a family. He ran a successful trucking company and had worked in the business for over 30 years. When he was not driving, the appellant did office work, which he found to be boring. To break the tedium, he texted escorts. He said that he often led with the line "can you squirt for me when eaten." His phone records reveal that he sent this text to dozens of sex trade workers.

[14] The appellant testified that he did not believe that "Kathy" was 16. He thought the person in the photos was in her twenties. The appellant testified that, in his experience, escorts lie about their age. He apparently gathered this information through observing and conversing with prostitutes in downtown Toronto. The appellant said he went along with this role-play scenario, never intending to purchase sexual services, and certainly not from someone who was 16.

[15] The trial judge rejected the appellant's evidence, finding it to be "fraught with vagueness and inconsistencies." He gave 19 reasons for reaching this conclusion.

[16] For example, when the appellant was asked how long he had been texting escorts, he gave multiple estimates, finally settling on "I don't really know." The trial judge considered this to be "deliberately vague and evasive."

[17] In cross-examination, the Crown asked the appellant about his opening line – "Can you squirt for me when eaten." The appellant apparently used this greeting because he usually received no response. He claimed not to be sure what it meant, saying that he picked it up from his wife's friends who are lesbians. In the end, the appellant said he had "no idea" what the phrase meant. The trial judge found this to be deliberately false.

[18] With respect to some other aspects of the appellant's testimony, the trial judge said that, "[H]e was at pains to avoid giving any answer that he thought may implicate him. The result [led] to some answers that bordered on the absurd." Perhaps the height of absurdity was reached when the appellant was asked about why he stopped to pick up condoms if, as he said, he had no intention of having sex with an escort. The appellant answered: "If a prostitute was there she could use them, I wouldn't use them." He added that it was "in my nature, I guess to try and be a nice person." The trial judge found that these answers were not credible.

[19] The trial judge found that because "Kathy" repeatedly represented "herself" to be 16, the presumption in s. 172.1(3) could apply. Under this subsection, evidence that the young person was represented to the accused as being under 18 – absent evidence to the contrary – is proof that the accused believed the person was under 18.

[20] However, the trial judge held that the Crown did not need to rely on s. 172.1(3) because he found that the appellant "believed he was communicating with a person under 18 for the purpose of engaging in sex with that person for money to the exclusion of a reasonable doubt without reference to the presumption."

C. The Appeal Against Conviction

[21] The appellant challenges the trial judge's ruling under s. 11(b) of the Charter. He also submits that the trial judge erred in the manner in which he dealt with certain portions of the appellant's evidence. At the hearing of the appeal, the Crown was not invited to make submissions on these two grounds. They may be disposed of quite briefly.

(1) Unreasonable Delay

[22] It took just over 14 months to get to the first trial date in the Ontario Court of Justice. When the appellant applied for a stay of proceedings for a breach of s. 11(b), it was governed by the framework in R. v. Morin, [1992] 1 S.C.R. 771. Before the proceedings were completed, the Supreme Court released its decision in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631. Although the case did not finish within the estimated time period and had to be adjourned a number of times, the appellant did not attempt to revisit the issue.

[23] On appeal, the appellant's written arguments focus largely on the trial judge's application of the principles in Morin. During the hearing of the appeal, and relying on Jordan, the appellant also submitted that s. 11(b) was infringed because his trial did not finish until more than seven months after the trial judge delivered his s. 11(b) ruling. I would dismiss each of these arguments.

[24] In terms of the applicable framework, although Morin considerations are still important in transitional cases, this issue is governed by Jordan. For the sake of completeness, I set forth both tests before concluding that neither was violated.

[25] Under Morin, courts were required to balance four factors: "1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused's interests in liberty, security of the person, and a fair trial": Jordan, at para. 30, citing Morin. For provincial courts, Morin suggested the appropriate guideline for institutional delay was between 8 and 10 months: Morin, at para. 50.

[26] In Jordan the Supreme Court rejected the Morin approach and established a new framework for s. 11(b) applications. Under Jordan a court must first calculate "the total delay from the charge to the actual or anticipated end of trial", and then subtract any delay attributable to the defence: Jordan, at para. 60. If the net delay falls below the applicable presumptive ceiling – in this case, 18 months – "the onus is on the defence to show that the delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have": Jordan, at para. 48 [emphasis in original].

[27] In this case, the delay litigated at trial was within the Morin guidelines, and was well below the presumptive ceiling in Jordan.

[28] The appellant was charged on October 29, 2014. His application to stay proceedings under s. 11(b) was dismissed on January 5, 2016. The trial judge found that the institutional delay was 6 months and 23 days. This was within the 8 to 10-month Morin guideline for institutional delay in provincial courts.

[29] The trial then commenced, and the trial judge delivered his judgment on August 12, 2016. In the meantime, the Supreme Court released its reasons in Jordan on July 8, 2016.

[30] The appellant submits that the trial judge incorrectly characterized a three-month period (January 30, 2015 to April 15, 2015) as neutral or intake time, and that he further erred in classifying another month (December 3, 2015 to January 5, 2016) as defence delay. I disagree.

[31] The trial judge did not err in concluding that the intake period ought to run until April 16, 2015. It was not until that date that defence counsel realized that important items of disclosure were missing. The trial judge said that, "It appears to have been something that was just missed by both [the] Crown and defence counsel. It was first mentioned specifically on April 16th." During this time, the parties had carried on with normal intake activities, including a judicial pre-trial conference. No delay was occasioned by the late disclosure. Consequently, there was no error in characterizing the time as neutral.

[32] Similarly, the trial judge did not err in characterizing the second period as defence delay. The trial judge found that earlier trial dates were offered, but defence counsel was unavailable. The period identified by the trial judge as defence delay (December 3, 2015 to January 5, 2016) accounted for these circumstances. The trial judge recognized that defence counsel was not "required to drop all her activities or parts of them necessarily to give this matter some sort of superordinate priority". This was clearly a reference to R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, in which Cromwell J. wrote, at para. 23, that for s. 11(b) purposes, defence counsel are not required to "hold themselves in a state of perpetual availability." In this case, the trial judge would have been justified in attributing more time to defence delay, based on the dates that were offered: R. v. Albinowski, 2018 ONCA 1084, 371 C.C.C. (3d) 190, at paras. 30-34. In my view, he made no error in fixing this period at one month.

[33] At trial, the appellant asserted prejudice in terms of the economic loss he suffered because of the delay in getting to trial. As noted above, the appellant owns a small trucking firm. He is involved in all aspects of the business, including driving the trucks. The appellant claimed that, due to restrictive bail conditions, he was unable to properly attend to his business. Further, during the winter of 2014/2015, he was unable to travel to his cottage to remove snow from the roof, resulting in costly property damage. In total, the appellant said he suffered financial losses of approximately $187,000. Following cross-examination, the trial judge found that his loss appeared closer to $20,000. He further found that the appellant "ha[d] not acted with a reasonable degree of diligence in taking steps to mitigate that loss" (i.e., hiring replacement drivers).

[34] The appellant's counsel was able to negotiate with the Crown to relax some of his bail conditions, but she was not entirely successful. I agree with the trial judge that the appellant could have brought a contested bail review application under s. 520 of the Code to achieve greater flexibility to travel and attend to his business. His failure to do so undermines his prejudice claim.

[35] The trial judge acknowledged the emotional toll that the proceedings had taken on the appellant, including the need for anti-depressant medication. However, while accepting that part of it was due to delay, the trial judge said that "the very nature of the charges is also a factor." The trial judge dismissed the application. He concluded that while the appellant demonstrated some prejudice, it was "very significantly tempered", and did not establish a breach of his rights under s. 11(b). I see no error in the trial judge's analysis under the Morin framework.

[36] The appellant's argument concerning the delay between the trial judge's s. 11(b) ruling (January 5, 2016) and his Reasons for Judgment (August 12, 2016) must also fail. The case did not finish within the two days originally set for trial (January 5 and 6, 2016). A series of adjournments occurred for various reasons, including the appointment to the bench of the appellant's trial counsel. Newly retained counsel did not renew the application under s. 11(b). This, in my view, is fatal on appeal.

[37] I would dismiss this ground of appeal. The litigated period of delay was tolerable under both the Morin and Jordan frameworks.

(2) Misapprehension of the Appellant's Evidence

[38] The trial judge provided thorough written reasons for judgment. It is not disputed that he correctly articulated the applicable legal framework. He instructed himself on the principles in R. v. W.(D.), [1991] 1 S.C.R. 742.

[39] As noted above, the trial judge rejected the appellant's evidence. He variously described it as "deliberately vague and evasive", "deliberately false", "vague, argumentative and incredible", bordering "on the absurd", "incredulous", and "simply not credible." As the trial judge said before itemizing his specific concerns:

I found the accused's evidence to be fraught with vagueness and inconsistencies. I propose to set out a summary of these concerns so that the accused has a solid understanding of why I reached this conclusion. This summary should not be considered as necessarily exhaustive. Some of the factors raised herein obviously have more impact than others. They are in no particular order of importance but they do tend to follow matters raised sequentially in the evidence.

[40] The appellant takes issue with the manner in which the trial judge handled some of the items of evidence, characterizing them as misapprehensions. He also asserts that the trial judge failed to address arguments made in support of the appellant's version of events. I would reject this ground of appeal.

[41] Ultimately, the appellant's submission boils down to a complaint that he was not believed. A high level of deference must be shown to a trial judge's credibility findings: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 23; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 26. Even if it could be shown that the trial judge misapprehended some aspects of the appellant's evidence, it would not detract from the overwhelming host of reasons for rejecting his evidence and the trial judge's well-supported finding that the appellant believed that "Kathy" was 16 years old.

[42] I would dismiss this ground of appeal, and the appeal against conviction.

D. The Appeal Against Sentence

(1) Introduction

[43] The appellant challenged the constitutionality of the mandatory minimum sentence of 12 months' imprisonment under s. 172.1(2)(a), as well as the 6-month mandatory minimum sentence under s. 212(4). He argued that they both constituted cruel and unusual punishment, contrary to s. 12 of the Charter.

[44] The trial judge rejected both challenges and imposed the respective minimum sentences, ordering that they be served concurrently. The trial judge gave his ruling before this court held in Morrison that s. 172.1(2)(a) violated s. 12 and was of no force and effect: see R. v. Morrison, 2017 ONCA 582, 350 C.C.C. (3d) 161 ("Morrison (ONCA)"), rev'd 2019 SCC 15, 375 C.C.C. (3d) 153 ("Morrison (SCC)").

[45] As discussed below, an appeal to the Supreme Court was allowed in part. The Court ordered a new trial. A majority of the Court declined to pronounce on the constitutional validity of s. 172.1(2)(a), but offered helpful observations on how the issue might be approached in the future. Karakatsanis J. (with whom Abella J. concurred on this issue) would have declared the provision of no force or effect.

[46] This sequence of events makes this appeal somewhat unique. At the time the appellant filed his notice of appeal in this court, Morrison (ONCA) had determined that s. 172.1(2)(a) violates s. 12 of the Charter. However, given the manner in which the Supreme Court ultimately disposed of the case, Morrison (ONCA) no longer has precedential value. Moreover, and as I explain in greater detail below, in this court Pardu J.A. relied on her characterization of the fault requirement in s. 172.1 as largely objective to find that the mandatory minimum sentence in s. 172.1(2)(a) infringed s. 12. Morrison (SCC) clarified s. 172.1 such that the mens rea is now understood to be subjective in nature. Thus, a critical plank in the reasoning of Pardu J.A. has been removed.

[47] Notwithstanding the refined mens rea requirement for offences committed under s. 172.1, I am of the view that the mandatory minimum sentence in s. 172.1(2)(a) violates s. 12 of the Charter. In reaching this conclusion I rely heavily on the reasons of Karakatsanis J., and on some of the observations made by the majority. As I explain below, a sentence of 12 months' imprisonment is not grossly disproportionate as applied to the appellant. However, the broad range of conduct covered by s. 172.1 permits its application in reasonably foreseeable circumstances where the imposition of the mandatory minimum sentence would be grossly disproportionate. Moreover, the discrepancy between the minimum sentences for offences under s. 172.1 that are prosecuted by indictment and those that are prosecuted summarily also illustrates that, in some circumstances, the imposition of the mandatory minimum sentence in the former situation is grossly disproportionate.

[48] I reach a different conclusion in relation to the minimum sentence in s. 212(4). As I explain below, the trial judge did not conduct a separate constitutional analysis of this provision. In these circumstances, I would decline to decide the issue on this record: see R. v. Plange, 2019 ONCA 646, at para. 30. Further, given the manner in which I would ultimately decide the sentence appeal – upholding the sentence imposed by the trial judge – this issue is effectively moot.

[49] I begin my analysis by setting out the reasons of the trial judge on each sentencing issue. I then review the Morrison litigation, emphasizing the critical considerations that informed the analysis of Pardu J.A. on the one hand, and Karakatsanis J. on the other. I then apply this framework to the facts of this case.

(2) The Sentencing Proceedings and the Trial Judge's Reasons

[50] At the sentencing hearing, counsel for the appellant acknowledged that a custodial sentence was warranted, and submitted that three to six months would suffice. Crown counsel submitted that a sentence of 15 to 18 months would be fit.

[51] The trial judge identified as primary the sentencing objectives of "denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the protection of the children". He found that, while the appellant had engaged in sexually predatory conduct, he was not "in any way, shape or form what could be considered a 'seasoned, sexual predator', if I can use that phrase."

[52] The trial judge further observed that the appellant was in his mid-fifties with no previous criminal record. He had been a law-abiding and hard-working citizen. He took into account the two-year period in which the charges had been outstanding and how difficult it must have been for the appellant to navigate the court process as a first offender. The trial judge also took into account that the appellant enjoyed a "highly supportive family network".

[53] The trial judge then turned to the offence itself. He noted that the appellant did not send any photographs or pornographic material to "Kathy" – an aggravating factor present in other cases.

[54] In terms of mitigating offence features, the trial judge acknowledged that the appellant was communicating with a police officer, not a 16-year-old girl. However, he tempered the weight assigned to this mitigating factor because of the intrusiveness of the sexual acts negotiated by the appellant, including digital penetration, fellatio, vaginal intercourse, and anal intercourse.

[55] The trial judge identified aggravating features, including the fact that the appellant went to the hotel room as planned. Given that he had $200 in cash in his front pocket, as well as the other items requested by "Kathy", the appellant "clearly went there expecting a 16-year-old girl and ready to commit the sexual acts with her that had been negotiated."

[56] Turning to the appellant's Charter challenge, the trial judge discussed the approach to s. 12 claims set forth in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 46. Under Nur, a court must first determine what constitutes a proportionate sentence in view of the objectives and principles of sentencing in the Criminal Code. Second, the court must ask whether the mandatory minimum sentence requires the judge to impose a sentence that is grossly disproportionate to the fit and appropriate sentence. The second stage may also require consideration of whether the mandatory minimum sentence would be grossly disproportionate in reasonably foreseeable circumstances.

[57] Defence counsel drew the trial judge's attention to a press release from the York Regional Police which announced that 104 people were charged in the same sting operation as the appellant. Of these 104 men, 32 of them pleaded guilty and received sentences of imprisonment in the range of three to seven months. All of the men were first-time offenders with stable jobs and families. Significantly, like the appellant, all of these men attended at a designated meeting point, prepared to pay money for sex with children.

[58] The trial judge considered the apparent disparity between the sentences received by these similarly situated offenders and the sentence sought by the Crown in the appellant's case. He realized that access to the lower range required an election to proceed summarily under s. 172.1.[2] The Crown argued that, in those other cases, a plea of guilty was a key factor in the decision to proceed summarily. Also, the trial judge noted that there were "detailed psychological assessments provided, some of which, if not all included phallometric testing, and that is absent in this case." The trial judge accepted that such testing may be beyond the financial means of certain accused people and expressed concern about the disparity. He said that "to me, this whole situation with this media release is the most significant factor that the [appellant] has going for [him] … However, it is not the end of the case."

[59] The trial judge reviewed authorities from this court and concluded that, when the Crown prosecutes cases under s. 172.1 by indictment, the sentencing range is 12 to 24 months: see R. v. El-Jamel, 2010 ONCA 575, 261 C.C.C. (3d) 293; R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81. Based on this range, the trial judge concluded that "even bearing in mind the media release and the issue of discretion on the [part of the] Crown, it would be illogical for me to conclude that the sentence violates … s. 12 of the Charter." Nevertheless, returning to the press release the trial judge said:

I can have some real sympathy for the accused, given the negotiated pleas in the other cases but, as I have said, those were guilty pleas. Crown proceeding summarily. Psychiatric or psychological assessments were filed. And, in this case I feel I am simply bound by the Ontario Court of Appeal decisions and I must find that the statutory minimum does not breach the Section 12 cruel and unusual punishment provision.

[60] In discussing the high standard that must be met to succeed on a s. 12 claim, the trial judge commented that the punishment must "outrage standards of societal decency" and "amount to cruelty": see R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 24. He cautioned that "we have to be careful as courts to avoid interpreting sentencing provisions that we may not like in a manner that, in the end tends to trivialize very substantial and rather harsh language contained in the Charter."

[61] The trial judge then considered whether the mandatory minimum sentence in s. 172.1 was grossly disproportionate when compared with other jurisdictions in the "Western world". He said, "I do not think it would be. I [would] say in many jurisdictions it probably would be much more severe." Accordingly, the Charter challenge to s. 172.1(2)(a) was dismissed.

[62] The trial judge did not conduct a separate constitutional analysis of s. 212(4). He simply said: "The statutory minimum is six months. I think most of the observations I have made so far apply with equal force to that. We are all talking about concurrent time so, in my view it is largely a moot point in any event".

(3) Constitutional Validity of s. 172.1(2)(a)

(a) The Morrison Litigation

The Facts

[63] The facts in Morrison bear certain similarities to the facts in this case, as well differences which serve as useful points of contrast for sentencing purposes.

[64] Morrison posted an advertisement on the website "Craigslist". The ad was titled: "Daddy looking for his little girl – m4w – 45 (Brampton)." A person calling herself "Mia" responded, claiming to be 14 years old. Over the course of more than two months, correspondence of a sexual nature transpired. Morrison invited "Mia" to touch herself and proposed a meeting to engage in sexual activity. "Mia" represented her age as 14 several times during this correspondence. In reality, "Mia" was an undercover police officer. Like the appellant in this case, Morrison testified that he thought he was involved in a role-play with an adult female, explaining that minors were not permitted to post ads on Craigslist. No meeting was ever arranged before Morrison was arrested. Morrison was charged under s. 172.1 of the Criminal Code, the designated offence being invitation to sexual touching, contrary to s. 152.

The Trial

[65] At trial, Morrison challenged the constitutionality of ss. 172.1(3) and (4) of the Criminal Code. These sections provide:

Presumption re age

(3) Evidence that the person referred to in paragraph (1)(a), (b) or (c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age.

No defence

(4) 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 eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person.

[66] The trial judge found that the reasonable steps requirement in s. 172.1(4) was constitutional, but held that s. 172.1(3) infringed the presumption of innocence under s. 11(d) of the Charter. Despite striking down s. 172.1(3), the trial judge was satisfied that the Crown had proved the offence without the benefit of the presumption because Morrison failed to take reasonable steps to ascertain the age of "Mia". He found that the Crown had not proved subjective belief on the part of Morrison that "Mia" was underage and that his state of mind was closer to mere negligence. Nevertheless, because of Morrison's failure to take reasonable steps, he was found guilty: see R. v. Morrison, 2014 ONCJ 673, at paras. 25-27.

[67] The trial judge further found that the mandatory minimum sentence in s. 172.1(2)(a) was grossly disproportionate, contrary to s. 12 of the Charter. Refusing to apply it, the trial judge sentenced Morrison to 75 days' imprisonment, to be served intermittently.

Morrison (ONCA)

[68] Morrison appealed his conviction to this court. He appealed the trial judge's refusal to strike down s. 172.1(4), whereas the Crown appealed the trial judge's decisions to strike down ss. 172.1(3) and s. 172.1(2)(a). Both appeals were dismissed.

[69] Writing for the court, Pardu J.A. found that s. 172.1(3) of the Criminal Code violated s. 11(d) of the Charter. She found that "[e]ven if the presumption of belief is triggered and there is no evidence to the contrary, the trier of fact could still be left with a reasonable doubt that the accused believes that the interlocutor is underage": at para. 59. The provision was not saved under s. 1: at paras. 63-77.

[70] Turning to s. 172.1(4), the court concluded that, while the reasonable steps requirement did not infringe s. 7 of the Charter, it rendered the fault requirement in s. 172.1 partly objective in nature. Pardu J.A. examined the Supreme Court's early decisions on the constitutionality of fault requirements in R. v. Vaillancourt, [1987] 2 S.C.R. 636, R. v. Martineau, [1990] 2 S.C.R. 633, and R. v. Logan, [1990] 2 S.C.R. 731. This line of cases emphasized the need for a correspondence between the fault required for a particular offence and the degree of stigma, punishment, and moral blameworthiness for that offence. On the one hand, the offences of murder (Martineau and Vaillancourt) and attempted murder (Logan) carry such a high level of stigma and moral blameworthiness that, for constitutional purposes, nothing less than subjective fault requirements will suffice. In contrast, the Court held that manslaughter is less morally blameworthy and stigmatizing, thereby permitting an objective standard of liability: see R. v. Creighton, [1993] 3 S.C.R. 3; see also R. v. Finlay, [1993] 3 S.C.R. 103.

[71] Applying this jurisprudence, Pardu J.A. acknowledged that a conviction for child luring "carries a high degree of stigma and moral blameworthiness", at para. 92, but "[t]he stigma of child luring … cannot be said to be as high as the stigma of murder": at para. 94. She found that, although the reasonable steps requirement adds an objective dimension to the fault standard for child luring, this was not fatal. Pardu J.A. said: "The fault element of child luring established by subsection (4) is not purely subjective, even if it is not purely objective. However, I am not persuaded that the stigma of being convicted of child luring constitutionally mandates a purely subjective standard of fault, akin to the stigma of murder": at para. 101. Morrison's conviction appeal was dismissed on this basis.

[72] Turning to the claim under s. 12 of the Charter, Pardu J.A. concluded that the mandatory minimum sentence faltered as applied to Morrison's situation, making it unnecessary to consider reasonably foreseeable applications of the law.

[73] Key to Pardu J.A.'s analysis was Morrison's degree of moral blameworthiness. The Crown argued that the trial judge erred in finding that it was diminished in the circumstances. Pardu J.A. disagreed, holding, at para. 121:

The Crown failed to prove that the accused believed he was communicating with an underage person. It did prove he failed to take reasonable steps to ascertain the age of the other person. This degree of fault, negligence, taking into account what was known to Morrison, is significantly less blameworthy than the conduct of someone who, for example, deliberately sets about to lure a child. It is axiomatic that a person who commits an offence by negligence is less morally blameworthy than someone who intentionally commits a criminal offence.

[74] Pardu J.A. also rejected the Crown's submission (based on R. v. Jarvis (2006), 211 C.C.C. (3d) 20 and Woodward) that the 75-day sentence imposed on Morrison was unfit. At para. 122, Pardu J.A. acknowledged that in Woodward, this court recognized that the 12 to 24-month sentencing range previously established in Jarvis "needs to be revised" and that "much stiffer sentences, in the range of three to five years" might be warranted to meet the relevant objectives of sentencing. In Woodward, this court affirmed a global sentence of six and one-half years. However, as Pardu J.A. pointed out, at para. 126, the facts in Woodward were far more serious and involved, among other things, a meeting in which the accused had sex with a 12-year-old girl: see also R. v. D.M., 2012 ONCA 520, 111 O.R. (3d) 721.

[75] Pardu J.A. also referred to R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, in which a 90-day intermittent sentence for child luring was upheld. Like Morrison, "Alicandro involved a sting operation where the accused was communicating with an undercover officer": at para. 125.

[76] After considering this line of cases, Pardu J.A. concluded, at para. 128: "What emerges from this brief review of the case law on the range is that the parameters established in Jarvis are flexible and dependent on the particular facts of the case. The range of seriousness of offences committed under s. 172.1 is evidently wide." In this vein, Pardu J.A. was alluding to the Supreme Court's admonition in Lloyd, at para. 35, that mandatory minimum sentences which "apply to offences that can be committed in various ways, under a broad array of circumstances and by a wide range of people are vulnerable to constitutional challenge."

[77] The court concluded that the mandatory minimum sentence in s. 172.1(2)(a) infringed s. 12 of the Charter as applied to Morrison's circumstances. There was no need to consider reasonably foreseeable applications of the law: at para. 135. No s. 1 justification was offered by the Crown. The Crown's appeal from sentence was dismissed.

Morrison (SCC)

[78] The Supreme Court unanimously upheld the lower courts' finding that s. 172.1(3) violated s. 11(d) of the Charter. A majority of the Court decided that the reasonable steps provision in s. 172.1(4) was constitutionally sound. Dissenting in part, Abella J. would have declared s. 172.1(4) invalid. A majority of the court declined to rule on the constitutionality of the mandatory minimum sentence in s. 172.1(2)(a). Abella and Karakatsanis JJ. would have struck down the provision for violating s. 12 of the Charter.

[79] Before turning to the impact of Morrison (SCC) on the validity of s. 172.1(2)(a), it is necessary to consider the Court's reasoning as it relates to the fault requirement for the offence.

[80] Writing for the Court on this issue, Moldaver J. held that s. 172.1(3) violated s. 11(d) because proof of the basic fact (i.e., a representation as to the age of the person) does not inexorably lead to proof of the presumed fact or essential element (i.e., actual belief in the age of the person). In other words, there was no inexorable connection between the two: at paras. 56-57, 62. The violation could not be justified under s. 1 of the Charter, as the provision faltered on the minimal impairment test and the proportionality requirement: at paras. 67-72.

[81] Turning to the reasonable steps requirement in s. 172.1(4), Moldaver J. held that the provision did not infringe s. 7 of the Charter. Referring to the Court's previous decisions in Vaillancourt, Martineau, Logan, and Creighton, Moldaver J. said that, while child luring carries a high degree of stigma and potentially severe sentences, he was "very doubtful" that these features rise to a level that requires subjective mens rea: at para. 79. However, it was not necessary to decide the issue in view of how the Court interpreted the role of s. 172.1(4).

[82] Moldaver J. held that s. 172.1(4) does not create a second pathway to conviction; instead, it merely limits access to a defence: at paras. 80, 82. As he explained, at para. 83:

Consequently, if the Crown proves beyond a reasonable doubt that the accused did not take reasonable steps, then the trier of fact is precluded from considering the defence that the accused believed the other person to be of legal age. But that does not relieve the Crown of its ultimate burden of proving beyond a reasonable doubt that the accused believed the other person was underage. Thus, to illustrate, if the trier of fact can only conclude from the evidence that the accused was negligent or reckless with regard to the other person's age, the Crown would not have met its burden, and the accused would be entitled to an acquittal. This is because negligence and recklessness are states of mind that do not entail any concrete belief about the other person's age. In short, there is but one pathway to conviction: proof beyond a reasonable doubt that the accused believed the other person was underage. Nothing less will suffice. [Italics in original; underlining added.]

[83] The essential nature of s. 172.1 in requiring subjective mens rea was emphasized in other parts of the majority reasons, with the Court stressing that only subjective belief or wilful blindness will suffice, not recklessness: see paras. 92-93, 96-101. As Moldaver J. summarized, at para. 102: "[T]o establish the second element outlined above in the context of a police sting where there is no underage person, the Crown must prove beyond a reasonable doubt that the accused (1) believed the other person was underage or (2) was wilfully blind as to whether the other person was underage."

[84] Given this clarification on the operation of s. 172.1, the majority concluded that both the trial judge and this court had proceeded on an incorrect assumption about the requirement for subjective fault. A new trial was ordered.

[85] The majority declined to adjudicate on the constitutional validity of s. 172.1(2)(a). Moldaver J. said, at para. 145, it would be "unwise" to rule on the matter given that the courts below proceeded on a misunderstanding of the fault requirement and the parties did not have the opportunity to make submissions with the benefit of the Court's clarification.

[86] Nevertheless, Moldaver J. made some observations about the mandatory minimum sentence in s. 172.1(2)(a). He identified several features of the provision which suggest that the mandatory minimum "is, at the very least, constitutionally suspect": at para. 146.

[87] First, s. 172.1 potentially encompasses conduct ranging from "a single text message sent by a 21-year-old young adult to a 15-year-old adolescent, to those involving numerous conversations taking place over weeks or months between a middle-aged mature adult and a 13-year-old child": at para. 146. Moreover, the section criminalizes communications sent to facilitate a wide array of secondary offences, varying in gravity and accompanied by mandatory minimum sentences that are much shorter than the one year of imprisonment required by s. 172.1(2)(a). Indeed, some secondary offences have no mandatory sentences at all: at para. 147. As Moldaver J. said, at para. 148, despite the wide reach of s. 172.1, Parliament has not included a "safety valve" that would permit judges to "exempt outlier cases where a significantly lower sentence might be appropriate, making the mandatory minimum provision vulnerable to constitutional challenge."

[88] Moldaver J. also identified the hybrid nature of the offence as a factor pointing toward invalidity: see paras. 149-52. He observed that, in determining whether a mandatory minimum sentence is grossly disproportionate, a court may not take into account the prosecutor's discretion to proceed summarily to avoid the imposition of overly harsh sentences in appropriate cases: at para. 150; see Nur, at paras. 85-86. Consequently, the hybrid nature of s. 172.1 may give rise to reasonably foreseeable cases in which the longer mandatory minimum sentence would be disproportionate or too severe. As I discuss in the following section, the appellant's case provides a good illustration of this problem.

[89] However, Moldaver J. cautioned that the Court in Nur did not hold that every two-tier mandatory minimum sentence will necessarily lead to a conclusion that the sentence that must be imposed on indictment will be grossly disproportionate: at para. 154; see e.g., R. v. EJB, 2018 ABCA 239, 72 Alta. L.R. (6th) 29; but see R. v. Hood, 2018 NSCA 18, 45 C.R. (7th) 269.

[90] Moldaver J. also listed considerations that make it "at least arguable that the mandatory minimum … is not grossly disproportionate in reasonably foreseeable applications": at para. 153. He stressed the serious nature of the offence, which targets children, one of the most vulnerable groups in society. And while the offence may be committed in a wide array of circumstances, the heightened mens rea requirement means that a conviction will not stand absent a high level of moral blameworthiness: at para. 153. Given the requirement of actual belief or wilful blindness, a one-year mandatory sentence may not be grossly disproportionate.

[91] In concurring reasons, Karakatsanis J. echoed the majority's admonition that child luring is a very serious offence. Section 172.1 "protects potential child victims by allowing the criminal law to intervene before the harm caused by the commission of the secondary offences actually occurs": at para. 176. Pointing to the decisions of this court (discussed in para. 59, above), she agreed that "[i]n most cases proceeding by indictment, the appropriate range will be from 12 to 24 months": at para. 177. However, ultimately Karakatsanis J. would have found s. 172.1(2)(a) invalid.

[92] Because the Supreme Court ordered a new trial, Karakatsanis J. said that it was "not prudent" to consider whether the mandatory minimum was grossly disproportionate as applied to Morrison: at para. 174. Accordingly, her reasons focused exclusively on reasonably foreseeable applications of the provision.

[93] Chief among Karakatsanis J.'s concerns was the broad and divergent range of conduct constituting child luring under s. 172.1. Discussing the provision's expansive reach, Karakatsanis J. said: "This alone makes [it] vulnerable to constitutional challenge because such laws almost inevitably capture cases where the mandatory minimum sentence will be grossly disproportionate": at para. 179; see also Lloyd, at para. 35; Nur, at para. 82. Karakatsanis J. offered several juxtapositions to illustrate this point: (1) offences may be committed by those intent on physically exploiting children, as well as those who have no intention of meeting their victims; (2) some cases involve extended dialogues in which the victim is groomed, whereas others involve a few exchanges over a short period of time; (3) some instances involve communications between people close in age, while other cases involve a mature adult and a young child; and (4) the offence may be committed through actual communication with an underage child, or with a police officer posing as a child: at para. 182; see R. v. Rafiq, 2015 ONCA 768, 342 O.A.C. 193, at para. 49. As Karakatsanis J. said, at para. 182: "These factors may impact the level of harm caused by the offence, thereby informing what constitutes a fit and proportionate sentence (see s. 718 of the Criminal Code)."

[94] Similarly, the personal circumstances of accused persons may differ vastly, sometimes in ways which diminish the moral blameworthiness associated with the offence, or otherwise operate in mitigation: at para. 183.

[95] This wide array of offence/offender features demonstrates that a proportionate sentence may be "significantly less" than mandated by s. 172.1(2)(a): at para. 184. Karakatsanis J. referenced other cases, some from this court, in which intermittent, conditional, or suspended sentences were found to be appropriate: see e.g., Alicandro; R. v. Folino (2005), 77 O.R. (3d) 641; and Hood.

[96] The hybrid nature of s. 172.1(2) – highlighted in Moldaver J.'s reasons – also featured prominently in Karakatsanis J.'s analysis. At the time Morrison was sentenced, if prosecuted summarily, the mandatory minimum sentence was 90 days' imprisonment. This was also true for the appellant in this case. Pointing to the disparity between cases prosecuted by indictment and by summary conviction, Karakatsanis J. said, at para. 155, that it "clearly demonstrates that Parliament understood that, in certain circumstances, a sentence far below that required by the one-year mandatory minimum would be appropriate." She found that this "strongly supports" the assertion that s. 172.1(2)(a) is grossly disproportionate: at para. 186.

[97] For these reasons, Karakatsanis J. would have found that s. 172.1(2)(a) violated s. 12 of the Charter. No s. 1 justification was advanced. However, the Crown argued that instead of striking down the section, the Court should read into the indictable offence the mandatory minimum associated with procedure by way of summary conviction. Karakatsanis J. would have declined to do so, concluding that this remedy would involve an unwarranted judicial incursion into the legislative role: at paras. 189-91; see also R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 49-57.

(b) Application to This Case

(i) Not grossly disproportionate in relation to the appellant

[98] Adhering to the analytical framework in Nur, it must first be determined whether the 12-month mandatory minimum sentence mandated by s. 172.1(2)(a) is grossly disproportionate as applied to the appellant. Counsel for the appellant argued that, given the appellant's personal situation and the nature of his offending, a 12-month sentence would be grossly disproportionate. She submitted that a proportionate sentence would be 90 days' imprisonment. I disagree.

[99] Although I respectfully disagree with the trial judge's conclusion on the constitutional validity of s. 172.1(2)(a), I agree with his analysis of the relevant aggravating and mitigating circumstances of this case: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089. I accept the importance of the appellant's status as a first-time offender. He is a hard-working and contributing member of society. He continues to enjoy the support of his family. It is also true that the appellant communicated with an adult, and no child was directly at risk: see Rafiq, at para. 49.

[100] Nevertheless, the appellant engaged in highly culpable conduct. He attended at a hotel room, armed with condoms, expecting to purchase sex from a 16-year-old girl.

[101] The appellant relies on the more lenient sentences received by those individuals caught in the same sting operation but whose cases proceeded summarily. These individuals received sentences in the three to seven-month range. However, as the Crown at trial submitted, all of these cases involved guilty pleas, with supporting psychological reports that addressed risk factors.

[102] A guilty plea "typically mitigates a sentence": R. v. Wong, 2018 SCC 25, [2018] 1 S.C.R. 696, at para. 26; however, the circumstances of the guilty plea, including its timing, may influence the degree to which it can be recognized as a sincere indication of remorse: see Lacasse, at para. 81; R. v. Faulds (1994), 20 O.R. (3d) 13, at p. 17; R. v. F.H.L., 2018 ONCA 83, 360 C.C.C. (3d) 189, at paras. 22-24. This factor is missing in the appellant's case. The lack of a guilty plea is not aggravating, but the appellant has deprived himself of any potentially mitigating value that accompanies this manner of dealing with his charges.

[103] Ultimately, a sentence of 12 months' imprisonment is within the range identified by this court, which was acknowledged by Karakatsanis J. in Morrison (SCC). Given the high degree of moral blameworthiness reflected in the appellant's conduct, it cannot be said that a sentence of 12 months' imprisonment is grossly disproportionate, even for a first offender in the appellant's circumstances. His conduct must be denounced. Moreover, it is hoped that this sentence will deter others who consider using the internet as a means of sexually exploiting children: see Criminal Code, s. 718.01; R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 16; R. v. J.S., 2018 ONCA 675, 142 O.R. (3d) 81, at paras. 55, 93-94.

(ii) Grossly disproportionate in reasonably foreseeable circumstances

[104] However, I agree with Karakatsanis J. that the mandatory minimum sentence in 172.1(2)(a) must be declared unconstitutional based on its application in reasonably foreseeable circumstances. I acknowledge that, as Moldaver J. clarified in Morrison (SCC), convictions under s. 172.1 will always be accompanied by a high level of moral blameworthiness. However, the wide range of conduct embraced by s. 172.1(2)(a), including the varied nature of the designated secondary offences, gives rise to situations in which the imposition of the one-year mandatory minimum sentence would be grossly disproportionate. Although these "outlier" cases are not likely to occur or to be prosecuted with great frequency, they are nevertheless reasonably foreseeable and demonstrate that in some cases, the mandatory minimum sentence in s. 172.1(2)(a) is grossly disproportionate.

[105] This point is illustrated in a different way in R. v. Chang, 2019 ONCA 924, a recent decision of this court. Sentenced after s. 172.1(2)(a) was struck down in Morrison (ONCA), but before Morrison (SCC), Chang received a sentence of eight months' imprisonment. On appeal, this court reduced the sentence to six months less a day based on adverse immigration consequences faced by Chang under the Immigration and Refugee Protection Act, S.C. 2001, c. 27: Chang, at para. 15; see R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739. This court said, at para. 14, that this reduction, "will not render the sentence demonstrably unfit, having regard to all the circumstances of the offence and this youthful first offender."[3]

[106] I also adopt the reasons of Karakatsanis J. in relation to the hybrid nature of the offence. As discussed, although the sentences imposed for those who pleaded guilty do not persuade me that the appellant's sentence was too severe, the two-tiered mandatory minimum that was in place at the time the appellant was sentenced (one year vs. 90 days) demonstrates the comparative harshness of the upper tier. In combination with the expansive reach of s. 172.1, this renders s. 172.1(2)(a) grossly disproportionate in reasonably foreseeable circumstances, thereby infringing s. 12 of the Charter.

(iii) Remedy

[107] As in the Morrison litigation, the Crown has offered no s. 1 justification. Consequently, I would declare s. 172.1(2)(a) of no force or effect: Constitution Act, s. 52(1).

[108] In reaching this conclusion, I reject the Crown's submission that to prevent a legislative void, this court should order that all prosecutions under s. 172.1 are subject to the mandatory minimum applicable upon summary procedure: see s. 172.1(2)(b). Such an order would constitute an improper incursion into the legislative realm: see Morrison (SCC), at paras. 189-91, per Karakatsanis J.

[109] A similar argument was advanced in R. v. B.J.T., 2019 ONCA 694, in which this court found that the one-year mandatory minimum sentence for sexual interference in s. 153(a) violated s. 12 of the Charter. In rejecting the submission that the mandatory minimum sentence of six months' imprisonment in s. 153(b) (when proceeding summarily) should apply to all sexual interference prosecutions, Feldman J.A. wrote, at para. 78: "[P]roceeding in [this] way would require a second Nur analysis and a finding regarding the mandatory minimum sentence for the summary offence when that issue is not directly raised by this appeal." I would adopt the same reasoning.[4]

(c) Should the remainder of the sentence be stayed?

[110] The appellant has served roughly 53 days of his one-year sentence. He has received bail throughout these proceedings. The appellant submits that given his age, the passage of time since he was charged, and his perfect compliance with bail conditions, this court should stay the execution of the remainder of his sentence.

[111] I am not persuaded that the appellant's circumstances ought to prevent him from serving the rest of his sentence. The appellant has served only a small fraction of his sentence imposed for serious offences designed to prevent the exploitation of children. It is simply not in the interests of justice to remit any portion of the fit and appropriate sentence that was imposed by the trial judge: see R. v. E.C., 2019 ONCA 688, at paras. 18-20; R. v. Davatgar-Jafarpour, 2019 ONCA 353, 146 O.R. (3d) 206, at para. 50.

(d) Conclusion

[112] Consequently, I would strike down s. 172.1(2)(a) of the Criminal Code. With the consent of the Crown, I would set aside the victim surcharge: R. v. Boudreault, 2018 SCC 58, 369 C.C.C. (3d) 358. However, I would not alter any other part of the sentence imposed by the trial judge.

E. Disposition

[113] I would dismiss the appeal from conviction. I would allow the appeal from sentence in part.

"Gary Trotter J.A."

Benotto J.A.: (for the majority on the challenge to mandatory minimum sentence under s. 172.1(2)(a))

[114] I agree with my colleague's disposition of the appeal in all ways but one. I would not strike down s. 172.1(2)(a) of the Criminal Code, R.S.C. 1985, c. C-46.

[115] My colleague concludes that the mandatory minimum sentence (although not grossly disproportionate for the appellant) is grossly disproportionate based on its application in reasonably foreseeable circumstances. He reasons that the wide range of conduct embraced by s. 172.1(2)(a) gives rise to numerous examples where the imposition of the minimum sentence would be grossly disproportionate.

[116] This is where we part company.

[117] There are several reasons for my conclusion: (i) by clarifying the mens rea for the offence, R. v. Morrison, 2019 SCC 15 has narrowed the range of conduct embraced by the section; (ii) the one-year minimum does not meet the standard of gross disproportionality, particularly in light of the purpose of the legislation; (iii) the reasonable hypotheticals have not been fully argued; and, (iv) the hybrid nature of the offence does not automatically render the mandatory minimum on indictment grossly disproportionate.

(1) Morrison has narrowed the range

[118] Morrison has clarified the mens rea for the child luring offence under s. 172.1. Consequently, the range of potential conduct has been significantly narrowed. The Crown must prove beyond a reasonable doubt that the accused intentionally communicated with a person who is or is believed to be underage. The accused must also have the specific intent to facilitate one of the listed offences. The "wide net" of the offence has been greatly narrowed to catch only these offenders: Morrison, at para. 153.

(2) Grossly disproportionate is a high bar

[119] A mandatory minimum sentence violates s. 12 of the Charter if it is grossly disproportionate: Morrison, at para. 164. Section 12 of the Charter prohibits any "cruel and unusual treatment or punishment." The "gross disproportionality" test that has developed under s. 12 presents a high bar: Morrison, at para. 165. The punishment must be "so excessive as to outrage standards of decency" (citations omitted): R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1072; see also Miller v. The Queen, [1977] 2 S.C.R. 680, at p. 688. Moreover, the threshold for gross disproportionality captures conduct that Canadians would find "abhorrent or intolerable": R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 26.

[120] In determining whether a provision contravenes s. 12 of the Charter, the purpose of the legislation must be considered. The social reality is that "access to the Internet among Canadian children is now almost universal" and "predators lurking in cyberspace, cloaked with anonymity" are able to meet, groom, and sexually exploit vulnerable children through telecommunication: Morrison, at para. 2. Children are defenceless to the sexual exploitation of adult predators, who are only one click away: R. v. Woodward, 2011 ONCA 610, at para. 72. The harm caused by this offence is often life-altering for innocent children: Morrison, at paras. 3, 153; Woodward, at para. 76. These considerations factor into the determination of a s. 12 Charter breach.

[121] Parliament enacted Criminal Code provisions to ensure that predators who lure children through telecommunication receive "a punishment that reflects the gravity and seriousness of the offence": Morrison, at paras. 2-3. Luring attracts a high degree of moral blameworthiness, especially since its victims are "one of the most vulnerable groups within Canadian society – our children": Morrison, at para. 153. I do not agree that a one-year minimum sentence would outrage the moral standards of Canadians.

[122] In my view, the one-year minimum sentence does not meet the standard of gross disproportionality.

(3) Reasonable hypotheticals

[123] Nor do I agree that in the present appeal this court can confidently rely on scenarios that were not argued in the court below, or properly raised in submissions before this court. Morrison left open the possibility that s. 172.1(2)(a) is constitutional. As Moldaver J. said, "it is at least arguable that a mandatory minimum sentence of one year's imprisonment is not grossly disproportionate in its reasonably foreseeable applications": Morrison, at para. 153. Consequently, this court should have the benefit of full submissions before deciding the constitutionality of s. 172.1(2)(a). To properly consider the constitutionality of the mandatory minimum under s. 172.1(2)(a), the court must have the benefit of reasonable hypotheticals fully argued. In the absence of this record, it is inappropriate for this court to decide the constitutionality of s. 172.1(2)(a) on this appeal: Morrison, at para. 155.

[124] My colleague, referring to this court's decision in R. v. Plange, declines to make a determination on the constitutionality of the mandatory minimum under s. 212(4) because the trial judge did not conduct a separate constitutional analysis of the issue: 2019 ONCA 646. I adopt his reasons concerning s. 212(4) in this regard. In my view, those reasons also pertain to the constitutionality of s. 172.1(2)(a).

[125] In Plange, the trial judge examined three reasonable hypotheticals, all of which this court rejected. As a result, the majority in Plange determined, among other matters, that the parties should have an opportunity to make submissions with respect to other hypotheticals. While it was open to this court to consider reasonable hypotheticals, the majority declined to do so without the benefit of full submissions and a proper vetting of the facts underlying the hypothetical proposed in oral argument: Plange, at para. 35. The majority explained it could not determine the constitutionality of the impugned provision because the court below had not considered the reasonable hypothetical constructed in oral argument, nor had the parties fully argued its reasonableness. In concluding thus, the majority remarked, at para. 36:

The issue here is not whether the court can consider reasonable hypotheticals; clearly it can. The issue is whether, on the facts of this case, this court should construct a hypothetical not considered by the court below, and not fully argued, in order to declare a legislative provision unconstitutional.

[126] I would apply the same reasoning to s. 172.1(2)(a). Although here, the sentencing judge considered the constitutionality of the mandatory minimum, he did not consider reasonable hypotheticals or reasonably foreseeable scenarios. I recognize that this omission does not prevent this court from determining the validity of the impugned section. However, in my view, the wiser course is to allow the parties to fully argue all relevant facts in the court below to ensure it assesses the constitutionality of the mandatory minimum with the benefit of a complete record.

(4) The hybrid nature of the offence

[127] My colleague adopts the concurring reasons of Karakatsanis J. in Morrison and strikes down the mandatory minimum sentence on the basis of its application in reasonably foreseeable circumstances and the hybrid nature of the offence. I note that in R. v. Nur the court considered the constitutionality of the mandatory minimum sentence for a hybrid offence, but did not go so far as to say that every mandatory minimum on indictment would be grossly disproportionate and contrary to s. 12 of the Charter: 2015 SCC 15, [2015] 1 S.C.R. 773; Morrison, at para. 154.

[128] Likewise, I would not go so far as to say that the mandatory minimum on indictment is grossly disproportionate because of the hybrid nature of the offence. Recall its purpose: the gravity of the offence, the harm child luring causes, and the need to send a clear message to offenders that if they "prey upon innocent children … [they] will pay a heavy price" (citations omitted): Woodward, at para. 73.

[129] For these reasons, I would dismiss the appeal in its entirety.

Released: December 11, 2019

"MLB"

"M.L. Benotto J.A."

I agree B.W. Miller J.A."

Footnotes

[1] In December 2014, ss. 13 and 20 of the Protection of Communities and Exploited Persons Act, S.C. 2014, c. 25, repealed s. 212(4) and replaced it with a similarly worded offence in s. 286.1(2) of the Criminal Code.

[2] At the time, s. 172.1(2) provided for a one-year mandatory sentence upon prosecution by indictment, and a mandatory minimum sentence of 90 days when prosecuted summarily. In July of 2015, the mandatory minimum sentence applicable to summary conviction proceedings was increased to six months. As discussed below, the timeline in this case mirrors that in R. v. Morrison, 2017 ONCA 582, 350 C.C.C. (3d) 161. Section 172.1(2)(b) imposed a 90-day minimum when Morrison was sentenced, but a six-month minimum by the time this court decided his appeal.

[3] I note that the constitutionality of s. 172.1(2)(a) was not an issue before this court in Chang.

[4] I note that, in R. v. King, 2019 ONCJ 366, Block J. struck down the six-month mandatory minimum sentence in s. 172.1(2)(b).