WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

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

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

486.6 Offence.

(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.

Court Information

Date: 2013-05-15

Court File No.: Brampton 001558

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Sameer Khan

Before: Justice J.W. Bovard

Heard on: November 5, 2012

Reasons for Sentencing released on: May 15, 2013

Counsel:

Ms. J. Prenger — counsel for the Crown

Mr. A. Baksh — for the defendant Sameer Khan

BOVARD J.:

[1] Introduction

[1] This is the sentencing of Sameer Khan on one count of invitation to sexual touching contrary to s. 152 of the Criminal Code. The Court found Mr. Khan guilty after a trial.

Facts

[2] Mr. Khan met two girls, aged 13 and 11 years, at a skating rink where he was a skate guard. He was 22 years old. The girls skated there often and they all began speaking to each other when they were there. Eventually, they exchanged contact information and began communicating by way of text messages and MSN messages.

[3] During a ten day period in December 2010, they joked around in the messages and their conversations often turned to sexual themes. Eventually, Mr. Khan sent two sexualized messages to the 13 year old, one of which I found was an invitation to sexual touching.

[4] In one message Mr. Khan asks one of the girls to send him a topless picture of herself (I found that I had a reasonable doubt whether in the circumstances in which it was sent this constituted an invitation to sexual touching). In the other, he tells her that he wants to "fuck". I found this to be an invitation to sexual touching.

[5] Mr. Khan also sent the victim a picture of his penis.

[6] The defence argued that the messages were just a joke and that he did not mean what he said. The court found otherwise.

The Defence Position

[7] The defence submits that in the circumstances before the court, imposing the minimum sentence on Mr. Khan would be unconstitutional. The defence argues that s. 152 is arbitrary and that it constitutes cruel and unusual punishment. Therefore, it breaches Mr. Khan's rights under sections 7 and 12 of the Charter.

[8] The defence asks the Court to sentence Mr. Khan to a suspended sentence, plus 12 months' probation. Should the Court decide that incarceration is appropriate, the defence asks that it be the minimum sentence of 14 days provided for by s. 152 of the Criminal Code.

[9] Section 7 of the Charter states that: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

[10] Section 12 of the Charter states: "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment."

[11] The defence filed two Charter applications: one on September 19, 2012 and an amended one filed on October 23, 2012. It is the Court's understanding that the defence wishes to proceed on the amended application dated October 23 2012.

[12] The Court found the application somewhat confusing.

[13] The "Grounds" for the application are that "the minimum sentencing provision of s. 152 (b) of the Criminal Code amounts to cruel and unusual punishment and a breach of Section 12 of the Charter because of the potential disproportionality of the mandatory sentence. It fails to factor in any consideration for the circumstances of the offence and any mitigation factors."

[14] And further that, "the minimum mandatory sentence will oblige the judge to impose a cruel and unusual punishment in violation of s. 12 of the Charter and must be reconsidered under s. 1 of the Charter."

[15] In "The Constitutional Issues To Be Raised" section the defence states that:

1. Section 152 (b) "describes a minimum mandatory sentence that will oblige the judge to impose a cruel and unusual punishment in violation of Section 12 of the Charter. The legislative provision to impose a sentence is cruel and unusual punishment in violation of s. 12 of the Charter."

2. The minimum mandatory punishment in s. 152 (b) is arbitrary and a violation of Mr. Khan's rights under s. 7 of the Charter.

3. That pursuant to Section 52 of the Constitution Act 1982, a declaration of invalidity is the proper remedy for a violation of s. 12 of the Charter.

4. The arbitrary nature of the mandatory minimum sentence in s. 152 (b) is fundamental to its designation as cruel and unusual under s. 12 of the Charter and is infringed where the sentence is so unfit having regard to the offence and the offender as to be grossly disproportionate.

5. S. 52 of the Constitution Act 1982 provides that any law which is inconsistent with the Constitution is of no force or effect to the extent of the inconsistency and the Courts are duty bound to make that pronouncement.

6. Mr. Sameer Khan in the absence of the mandatory punishment would get the benefit of a noncustodial disposition based on the circumstances of the offence.

[16] In argument, the defence clarified its position by explaining that the defence does not argue that s. 159 (b) is unconstitutional, but that its application to Mr. Khan (imposing the minimum 14 day sentence) would be unconstitutional because in the circumstances of this particular case it amounts to cruel and unusual punishment. Therefore, it breaches his rights under sections 7 and 12 of the Charter.

[17] The Court interprets this clarification as meaning that the defence is not contesting the constitutional validity of s. 152 (b), but is arguing that in the circumstances of the particular case before the Court its application to Mr. Khan would be cruel and unusual punishment, thereby contravening sections 7 and 12 of the Charter.

[18] Therefore, based on this clarification, the Court will not render a ruling with regard to the constitutionality of s. 159 (b), but simply examine whether its application to Mr. Khan would amount to cruel and unusual punishment, thereby breaching sections 7 and 12 of the Charter.

[19] I find that this clarification is at odds with the defence application cited above where he asks that I declare s.152 invalid according to the Constitution. To be on the safe side I will proceed on the basis that the defence is challenging the constitutional validity of s. 152.

[20] I am mindful of the Supreme Court of Canada's holding in R. v. Goltz, [1991] S.C.J. No. 90 at paragraphs 41, 42, regarding the s. 12 Charter analysis:

41 There are two aspects to the analysis of invalidity under s. 12. One aspect involves the assessment of the challenged penalty or sanction from the perspective of the person actually subjected to it, balancing the gravity of the offence in itself with the particular circumstances of the offence and the personal characteristics of the offender. If it is concluded that the challenged provision provides for and would actually impose on the offender a sanction so excessive or grossly disproportionate as to outrage decency in those real and particular circumstances, then it will amount to a prima facie violation of s. 12 and will be examined for justifiability under s. 1 of the Charter. There may be no need to examine hypothetical situations or imaginary offenders. This was not the case in Smith, and for that reason the Court was obliged to examine other reasonably imaginable circumstances in which the challenged law might violate s. 12.

42 If the particular facts of the case do not warrant a finding of gross disproportionality, there may remain another aspect to be examined, namely a Charter challenge or constitutional question as to the validity of a statutory provision on grounds of gross disproportionality as evidenced in reasonable hypothetical circumstances, as opposed to far-fetched or marginally imaginable cases.

[21] Therefore, if I find that in the case at bar that imposition of the mandatory minimum penalty of 14 days imprisonment "would actually impose on the offender a sanction so excessive or grossly disproportionate as to outrage decency in those real and particular circumstances" I will find that it amounts to "a prima facie violation of s. 12 and will be examined for justifiability under s. 1 of the Charter."

[22] If I find that this is not the case, then I will turn to the issue of the analysis of the constitutionality of s. 152 in reasonable hypothetical situations in which the 14 day mandatory minimum could offend s. 12 of the Charter.

Mr. Khan's Personal Circumstances

[23] Mr. Khan does not have a criminal record. He was 22 years old when he committed the offence. Now, he is 24 years old. The Court ordered a presentence report. He had a loving and caring, although strict upbringing. He lives with his parents and siblings.

[24] Mr. Khan was bullied in elementary school. It does not appear that this continued in high school. The bullying caused him to distrust others. He has many acquaintances, but not many close friends. He is not romantically involved with anyone.

[25] He attends college. He is in the Criminal Justice Studies program and has only to complete the co-op portion of the program to finish it. He is also studying Business Administration Marketing. He is unsure what he wants to do when he graduates.

[26] He has worked as a produce clerk in a grocery store since 2006. A co-worker described him as being "good with other people, very polite, calm" and said that he has never acted inappropriately with her or to the best of her knowledge with anyone else.

[27] Mr. Khan does not have any substance abuse issues. He does not have any mental health problems.

[28] During the presentence report interview he was cooperative and forthcoming. His father told the presentence report writer that his son's behaviour in committing this offence was out of character. He always obeys the rules of the home. He is quiet and very helpful and respectful.

The Crown's Position

[29] The Crown proceeded by way of summary conviction. At the time that he committed the offence, s. 152 provided for a minimum sentence of 14 days in jail. The section has been recently amended and now carries a minimum sentence of 90 days in jail for a summary conviction offence. All parties agree that the penalty that existed when he committed the offence is the one that applies to Mr. Khan.

[30] The Crown seeks a sentence of 90 days to be served intermittently, 2 years' probation with conditions of no contact with the victim, B. M. or her friend J. L., not to attend at either of their homes, schools, places of work or any place that he knows them to be, and counselling as directed. The Crown also seeks a DNA order and a SOIRA order for 10 years.

Analysis

[31] The defence argued in its Charter application that:

….Mr. Sameer Khan in the absence of the mandatory punishment would get the benefit of a noncustodial disposition based on the circumstances of the offence…

[32] Therefore, before proceeding further I will determine if whether in the absence of the mandatory punishment Mr. Khan would get the benefit of a non-custodial disposition based on the circumstances of the offence.

General Sentencing Principles

[33] Sections 718 to 718.2 of the Criminal Code contain important principles that the Court must consider when sentencing a person.

[34] Section 718 mentions:

denouncing unlawful conduct, general and individual deterrence, separating offenders from society where necessary, rehabilitation of offenders, providing reparation to victims and the community, promoting a sense of responsibility in offenders, and acknowledgement of the harm done to the victim and to the community.

[35] Section 718.01 states that:

When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[36] All sentences must be "proportionate to the gravity of the offence and the degree of responsibility of the offender" (s. 718.1).

[37] Section 718.2 lists other sentencing principles. It states that the Court shall consider as aggravating factors:

(ii.i) evidence that the offender, in committing the offence, abused a person under the age of eighteen years

(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim

[38] Section 718.2 goes on to state that:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders…

Mitigating Factors

[39] The mitigating factors in this case are the following:

1. Mr. Khan is a young man. He was 22 years old when he committed this offence. Now, he is 24 years old.

2. Mr. Khan does not have a criminal record.

3. Mr. Khan has always been employed and he is currently in school working towards a career in the fields of either criminal justice or business administration marketing. Mr. Khan did not want his employer to know about this offence so the Pre-Sentence Report writer did not contact the employer for information about him. One of his co-workers for three years, Ms. Shelby Gravielle, stated that Mr. Khan is "good with other people, very polite, calm, and social never acting inappropriately with me or anyone else to my knowledge." Perhaps she did not know of this charge either.

4. The Pre-Sentence Report is generally positive. He expressed remorse although he still denies things that are obvious. For example, he denies that he was sexually attracted to the victim and that he had any intention to have sexual relations with her, which as I indicated in my judgment, is hard to believe. The Pre-Sentence Report writer feels that Mr. Khan understands the gravity of the offence.

5. Mr. Khan does not appear to be a high risk to re-offend and he has stayed out of trouble since this offence.

6. Mr. Khan is immature (although this cuts both ways as I will explain later).

7. Mr. Khan lost his job at the skating rink. However, he has had other employment at the grocery store since 2006 and he still has that job because he hid from his employer that he was charged with this offence.

Aggravating Factors

[40] The aggravating factors are the following:

1. The offence is very serious. The victim was only 13 years old and Mr. Khan was 22 years old. He persisted in trying to entice her to have sexual relations with him. He asked for a picture of her topless and he sent a picture of his penis to her. He told her that he wanted to "fuck". He also said that he thought the victim was "a little on the wild side" and that was the reason that he pursued her. This is extremely inappropriate and harmful behaviour by a 22 year old man towards a 13 year old girl.

2. In addition, his efforts to seduce her only stopped when she reported the incidents and he was suspended from work. He did not stop on his own. Although he said that he thought that it had gone too far and that he wanted to back out of the situation, he did not take any genuine, unequivocal initiative to do this.

3. Moreover, his actions involved an 11 year old girl who was the friend of the victim. Although he was not charged with inappropriate behaviour regarding her, in his testimony he admitted that he told her that he liked her more than the victim. She told him that she could not "do this" because the victim liked him a lot.

4. These are the actions of a 22 year old man preying on two young girls.

5. The offence involved the abuse of a person under the age of eighteen years.

6. Mr. Khan was a skate guard at the skating rink where the girls skated. This put him in a position of trust towards them. He was there to assist them and keep them from harm. He used his position to get to know the victim and then tried to seduce her.

7. Offences against young children by adults are common in our society.

[41] Counsel did not provide the Court with any sentencing case law with regard to invitation to sexual touching offences under s. 152 of the Criminal Code. The defence provided one page of excerpts from a few cases from what looks like a sentencing digest. The cases refer to the principle that in cases of youthful offenders a Court should use incarceration only after having explored other appropriate alternatives.

[42] The Court of Appeal for Ontario held in R. v. Stein (1974), 15 C.C.C. (2d) 376 (Ont. C.A.) at paragraph 4 that:

…before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate.

See also: R. v Priest, [1996] O.J. No. 3369.

Summation

[43] Mr. Khan, a 22 year old man who committed a very serious offence by attempting to seduce a 13 year old girl. He also involved her 11 year old friend in his efforts by interacting with her during the time that he was communicating with the victim. At one point he told the 11 year old that he liked her better than the victim.

[44] He breached a trust relationship that he had with the victim because he was a skating guard at the skating rink where the girls skated. He used his position to get close to them.

[45] Mr. Khan was preying on these young girls. He may be immature, but this does not mitigate the offence to a great degree if it was his immaturity that caused him to commit it.

[46] Mr. Khan is still in denial about some aspects of what he did. He denies that he wanted to do anything sexual with the victim or that he was even attracted to her. This does not bode well for his rehabilitation.

[47] Mr. Khan's remorse is strained and leaves me doubting its sincerity. The only time that he stated that he was sorry for what he did to the victim was in the Pre-Sentence Report. At page 4 of the Report the writer states "The subject acknowledged that the conversations as well as the friendship he started with the victim were inappropriate from the onset stating 'I still feel remorseful. If I had not done this in the beginning I would not be going through all this with court dates, a criminal record, having to register with the Sex Offender Registry. Had I realized this would affect me long term with my life I would have thought twice. I have hurt (the victim) and her family emotionally, I feel badly because of this."

[48] In his earlier statements of remorse it is clear that he was sorry that he got caught and that it was going to have a detrimental effect on him. There was no mention of the victim.

[49] For example, exhibit 5 is an email that he sent to his boss at the skating rink the day after he was suspended. He states that he "betrayed" everyone at work. He talks about the consequences that he will have to face, like losing his job. He pleads with him not to call the police because he is still young and does not want the incident to "jeopardize my entire life". He offers that if he can keep his job he will work twice as hard to regain their trust in him and that he will never do this type of thing again.

[50] Exhibit 6 is a letter that he brought to a meeting with his bosses in January 2011 to discuss his future at the skating rink. The letter states that all Mr. Khan can think of is "the people who I've betrayed and the people who I've hurt because of this." There is no mention of the victim specifically though and considering that in exhibit 5 he spoke of betraying everyone at work, I surmise that this is who he was referring to in exhibit 6. This assumption is supported by the fact that in the letter he states that the victim came on to him and that both girls asked him to get drunk with them on New Year's Eve.

[51] He states that "with all honesty i ( sic ) never was the person who I became at that time." This is double talk and I find that it is meaningless. He states further that he never "wanted to do anything with these girls in the first place."

[52] He lost his job over this, but he retained his primary employment at the grocery store because he did not divulge the offence to his employer.

[53] In the case at bar, denunciation and general deterrence are the primary sentencing principles to which the Court must pay heed. I think that Mr. Khan has been deterred by having to go through his prosecution and trial. He understands the serious nature of what he did and that it has significant consequences. I doubt that he will commit this type of offence again.

[54] However, the analysis does not end there. The Court must be mindful that sexual offences against children are common in our society. In order to protect society's children from harm the Court must denounce this behaviour in the strongest terms. The Court must do all that it can to deter others from committing these types of offences. An invitation by a 22 year old man to corrupt a 13 year old girl in relation to whom he is in a position of trust cannot be treated lightly.

[55] Consequently, considering all of the circumstances of this case, the law and counsel's submissions, I cannot accede to the argument that a minimum 14 day jail sentence is "so excessive or grossly disproportionate as to outrage decency in [these] real and particular circumstances" thereby constituting cruel and unusual punishment.

[56] This is not a case like the ones to which the defence referred me that dealt with minimum sentences under the Criminal Code:

1. R. v. Smith, [1987] 1 S.C.R. 1045 – minimum 7 years incarceration for importing illegal drugs

2. R. v. Ferguson 2008 SCC 6, [2008] 1 S.C.R. 96 – minimum 4 years incarceration for manslaughter with a firearm

3. R. v. Smickle 2012 ONSC 602 – minimum 3 years incarceration for possession of a loaded firearm

4. R. v. McDonald - minimum 4 years incarceration for robbery with a firearm

5. R. v Morrisey [2002] 2 S.C.R. 90 – minimum 4 years incarceration for criminal negligence causing death with a firearm

6. R. v. Lewis 2012 ONCJ 413 – minimum 3 years incarceration for firearms trafficking

[57] I find that these cases are sufficiently factually different from the case at bar that they are not helpful in determining the issues that I have to decide. Mr. Khan's jeopardy of 14 days in jail does not compare to the jeopardy of the accused in these cases. I find that puts a different light on the matter. As explained above, in the circumstances of this case Mr. Khan's jeopardy of a minimum of 14 days incarceration does not push s. 152 into constitutionally troubled waters that necessitate scrutiny.

[58] With regard to hypothetical cases in which the 14 day minimum would result in cruel and unusual punishment, none was put forward by the defence and I cannot think of one.

Disposition

[59] I find that in the circumstances of this case, the minimum sentence of 14 days incarceration is the appropriate sentence. For the reasons stated above, I find that based on the facts of this case, this sentence is not cruel and unusual. It is not grossly disproportionate to what Mr. Khan merits.

[60] Mr. Khan is sentenced to a period of incarceration of 14 days.

[61] In addition, when he is released from jail Mr. Khan will be subject to a probation order of 12 months. The conditions are:

1. Report to a probation officer as soon as possible and afterwards as directed.

2. Do not contact the victim or J, her friend. The Crown shall give the names to the clerk of the court so that they may be included in the probation order.

3. Do not be within 100 meters of the residence, school, work place or any place that you know the victim or her friend, J, to be.

4. Do not be within 500 meters of the Jim Archdekin skating rink.

5. Take counselling with regard to age appropriate romantic/sexual relationships.

6. Take a sexological and phallometric evaluation at the direction of your probation officer. Take any counselling that these evaluations indicate would be appropriate.

7. Sign all releases of information required by your probation officer so that he or she can monitor your compliance with this probation order.

[62] Mr. Khan is ordered under s. 487.04 of the Criminal Code to give a sample of his DNA. Section 152 is a primary designated offence.

[63] A SOIRA order is made for 10 years pursuant to ss. 490.011 (1) (a) (iii) [designated offence], 490.012 (1) and 490.013 (1) (2) (a) of the Criminal Code.

[64] Mr. Khan is ordered to pay the Victim Fine Surcharge within 60 days.

Released: May 15, 2013

Signed: "Justice J.W. Bovard"