Her Majesty the Queen v. Joseph

[Indexed as: R. v. Joseph]

Ontario Reports

Court of Appeal for Ontario

D.M. Brown, Trotter and Paciocco JJ.A.

November 19, 2020

153 O.R. (3d) 145 | 2020 ONCA 733

Case Summary

Charter of Rights and Freedoms — Cruel and unusual treatment or punishment — Mandatory minimum sentence — Trial judge declaring mandatory minimum sentences provided for in ss. 163.1 and 286.2 of the Criminal Code to be of no force and effect as constituting cruel and unusual punishment contrary to s. 12 of the Charter — Reasonable hypotheticals established that trial judge did not err in finding mandatory minimums grossly disproportionate — Canadian Charter of Rights and Freedoms, s. 12 — Criminal Code, R.S.C. 1985, c. C-46, ss. 163.1, 286.2.

Criminal law — Directed verdict — Accused charged with numerous offences in relation to sale of sexual services by three underage females — Accused obtaining directed verdict of acquittal on charges of procuring and harbouring — Trial judge erred in defining both procuring and harbouring too narrowly — Directed verdict set aside and new trial ordered.

Criminal law — Sexual offences — Accused charged with numerous offences in relation to sale of sexual services by three underage females — Accused acquitted on charges of procuring and harbouring — Trial judge erred in defining both procuring and harbouring too narrowly — Acquittals set aside and new trial ordered.

Criminal law — Sentencing — Principles — Accused convicted of various offences in relation to sale of sexual services by three underage females — Trial judge describing accused as naïve and having a serious lapse of judgment, with offences being at the lowest end of the spectrum — Judge imposing suspended sentence of one year concurrent on all counts after giving nine months' credit for harsh bail conditions — Trial judge erred by evaluating the complainants' degree of responsibility rather than treating the offences as inherently exploitive — Reformatory sentence of 15 months' incarceration substituted.

The 21-year-old accused became engaged for profit in the sale of sexual services by three underage females: C, R and M. He was charged with numerous offences and tried by a jury. At the end of the Crown's case the accused obtained a directed verdict of acquittal with respect to charges that he procured M to provide sexual services for consideration and harboured her for the purpose of facilitating the offence of obtaining sexual services for consideration. The trial judge concluded that "procure means to cause someone to do something through reasoning or argument" and that "harbour" means to "clandestinely or secretly shelter and protect", with the result that the jury could not convict on those counts. The accused was convicted of receiving financial benefit from sexual services provided by a minor, R; making and possessing child pornography in taking photos of R to advertise sexual services; advertising sexual services of R and C; and procuring C to sell sexual services, contrary to s. 268.3 of the Criminal Code. He was acquitted of five other charges under s. 268.3. During the sentencing hearing the Crown attempted to enforce mandatory minimum sentences for crimes against R, but the trial judge accepted the accused's challenges to the mandatory minimums, declaring them to be of no force and effect as being cruel and unusual punishment contrary to s. 12 of the Canadian Charter of Rights and Freedoms. In sentencing the accused, the trial judge described the offences as being at the lowest end of the spectrum, characterizing the accused as naïve and his actions as a serious lapse of judgment. The judge referred to media coverage in observing that the accused had been emotionally and financially destroyed by the charges and that those effects ought to deter anyone tempted to engage in similar activity. The judge also found that the accused had been under oppressive bail conditions, for which the accused was given nine months' credit. The judge imposed a suspended sentence of one year, concurrent on all counts, requiring the accused to report to a probation officer and not communicate with any of the complainants. The Crown appealed the acquittals and the sentence.

Held, the appeal should be allowed in part.

(The full judgment continues exactly as in the source, including all paragraphs [1]–[168], headings, notes, and citations.)

End of Document