Court File and Parties

Ontario Court of Justice

Date: 2013-11-12

Court File No.: Brampton 3111 998 12 16571

Between:

Her Majesty the Queen

— and —

Omer Mermer

Before: Justice W. B. Horkins

Heard on: August 29, 2013 (Sentence Hearing)

Reasons for Sentence released on: November 12, 2013

Counsel:

• Amber Lepchuk and Craig Power, for the Crown
• Sukhwant Baidwan, for the accused Omer Mermer

HORKINS W. B. J.:

Introduction

[1] This is a child luring case. The accused engaged in online "chats" and text message exchanges for several weeks with an undercover police officer believing her to be a 14-year-old girl. The chats became progressively more sexual and were clearly leading towards an intended live sexual encounter.

[2] The Crown seeks a 15-month jail sentence with certain, obvious, ancillary orders. The accused seeks a Conditional Sentence or failing that, a shorter period of imprisonment.

Facts

[3] The accused engaged in a series of chat line discussions with "Emma," whom he believed to be a 14-year-old girl. In fact Emma is a fictional or virtual girl, the creation of Police Constable Hutchinson of the Peel Regional Police Internet Child Exploitation Unit, known by the acronym ICE.

[4] The chat room discussions and text messages exchanged between the accused and Emma are recorded and transcribed, and filed as evidence on the trial. The exchanges progressed to a level where the accused was clearly grooming this virtual young girl to accept his invitation to meet for sexual activity. The discussions at times became quite sexually explicit. He was interested in knowing whether she was a virgin; he wanted to know the size of her breasts; he wanted to know if she had had oral sex with a boy; he wanted to see a picture of her. From the content of the "chats," it is crystal clear that he knew that it would be illegal to meet with this young girl to engage in sexual activity. He made it very clear that he did not care how young she was as long as she looked physically old enough, in his opinion, to engage in sexual activity. He was eventually sent a picture of a young girl posing with her pony. The model in the picture is 13 years old. He knew she looked too young to be meeting alone with an adult male, especially at a motel, and so the rendezvous that they were planning was set to take place at the accused's cousin's home when the cousin was to be out of town.

[5] In fairness to the accused, over the period of several weeks that the online dialogues continued, he did at times show signs of dropping the "relationship" and he did vacillate on the actual meeting taking place. However, having engaged in the luring of "Emma" over an extended period of time, the crime had already been committed and eventually a meeting was arranged. Instead of 14-year-old Emma, the accused was met by Officer Hutchinson and he was arrested.

The Law

[6] The Information in this matter was sworn in January of 2012. The Crown having proceeded summarily, the accused is now exposed to a maximum of 18 months imprisonment. Although there is presently a mandatory minimum 90-day sentence, at the time of the events there was no mandatory minimum in force and so this accused is eligible for consideration to serve his sentence pursuant to a Conditional Sentence Order.

[7] The appropriate range of sentence in child luring cases has recently been thoroughly assessed by my colleague Justice Perkins-McVey in the matter of R. v. Dobson at paragraphs 18 through 33. Having carefully reviewed those cases myself, I adopt her commentary completely:

Sentencing Range and Principles

18 There are recent decisions of the Ontario Court of Appeal that are of assistance in determining the appropriate sentence for an offender convicted of luring a child. The original trilogy of cases were discussed by Crown and defence counsel in the case bar, as well as the recent pronouncement of the Court in R. v. Woodward 2011 ONCA 610.

19 The first case, R. v. Folino, decided in 2005, stands for the proposition that it will only be in the "rarest of cases that a conditional sentence will be appropriate" in a case involving luring a child.

20 The second decision, R. v. Jarvis, decided in 2006, affirmed the proposition in R. v. Folino that a conditional sentence will be appropriate in the rarest of circumstances. Justice Rosenberg stated at paragraph 27 "Given the degree of planning implicit in the offence and the seriousness of the conduct contemplated, the objectives of general deterrence and denunciation will rarely be satisfied by a conditional sentence of imprisonment." In R. v. Jarvis, the Court indicated at paragraph 31 that the range of sentence for the offence of luring a child generally lies between twelve months and two years.

21 The third decision, R. v. El-Jamel, decided in 2010, is of particular interest due to the dissenting opinion of Justice Watt with respect to the application of R. v. Folino. The majority upheld the decision of the trial judge to sentence the offender to a conditional sentence of 12 months plus three years probation, despite acknowledging that the circumstances of that case did not represent the rarest of cases. The majority was satisfied with the trial judge's reasoning for providing a sentence outside the usual range and found at paragraph 20 that there was "insufficient basis to interfere with the exercise of judicial discretion and, to do so, would confuse rather than assist the trial judge's task in applying Folino."

22 In Justice Watt's dissenting opinion, set out in paragraph 36, he identifies the facts of Folino which provided factors constituting the "rarest of cases." The facts listed in R. v. Folino are as follows:

• i. a negligible risk of recidivism
• ii. acceptance of responsibility
• iii. participation and progress in treatment for management of stress
• iv. a devastating impact of proceedings on the accused and his family
• v. assaults by other inmates while in custody awaiting release
• vi. uncontradicted expert evidence of a very fragile mental and physical state due to the proceedings and of the detrimental effect of reincarceration on Folino and his three young children.

23 Justice Watt disagreed with the majority in El-Jamel and took the position at paragraph 46 "the imposition of a conditional sentence reflects an error in principle, a misapplication of the decision of this court in Folino, an under emphasis on the sentencing objectives of denunciation and deterrence, and an overemphasis on rehabilitation." Justice Watt found that by providing for a conditional sentence, despite finding the circumstances did not represent the "rarest of cases"; that the trial judge in El-Jamel made an error of law in applying the Folino test, not merely a formal one. The dissenting opinion of Justice Watt has been cited with approval in R. v. Somogyi [2011] O.J. No. 253 and the decision of R. v. McCall [2011] B.C.J. No. 1197 at paragraph 28.

24 The fourth and more recent case of the Ontario Court of Appeal on this issue is the decision in R. v. Woodward, this case was decided on September 26, 2011. The decision of Justice Moldaver provides a re-examination of the principle established 5 years earlier in Jarvis that range of sentence for the offence of luring a child generally lies between twelve months and two years. The Woodward case was an appeal of a sentence of 6 1/2 years for a variety of sexual offences, including luring a child. Beginning at paragraph 53 of the decision, Justice Moldaver examines the appellant's argument that the global sentence was excessive, specifically addressing Jarvis at paragraph 58:

"Even if Jarvis did purport to set a range of 12 to 24 months for the offence of luring, that range needs to be revised given the 2007 amendment in which Parliament doubled the maximum punishment from 5 years to 10 years. Moreover, if it is shown through the introduction of properly-tendered evidence that the offence of luring has become a pervasive social problem, I believe that much stiffer sentences, in the range of three to five years, might well be warranted to deter, denounce and separate from society adult predators who would commit this insidious crime. [emphasis added]"

25 At paragraph 59, the Court in R. v. Woodward states "One need only consider the facts of this case to appreciate the dangers and disturbing features of the crime of luring and the grave consequences that may grow from it, here a face to face meeting between a 30 year old predator and a 12 year old child. The court goes on to say "But the offence of luring carries a real danger to innocent children being seduced and sexually assaulted or even worse"

26 In the 2011, Ontario Superior Court of Justice case of R. v. Somogyi, Justice Wilson thoroughly reviews the case law of the Ontario Court of Appeal, as it stood then in determining the appropriate sentence for an offender convicted of luring a child. Justice Wilson stated that clear guidance for the courts in sentencing offenders found guilty of internet luring and possession of child pornography has been provided by a trilogy of cases from the Ontario Court of Appeal: R. v. Folino, R. v. Jarvis (2006), and R. v. El-Jamel 2010 ONCA 575.

27 In R. v. Somogyi, the Court states commencing at paragraph 21, that the decisions of R. v. Folino, R. v. Jarvis (2006), and R. v. El-Jamel 2010 ONCA 575 confirm that when considering these offences, generally the principles of deterrence and denunciation predominate, and that conditional sentences served in the community are appropriate only in the rarest of cases when they fulfil the objectives of rehabilitation, reparation and promotion of responsibility.

28 The following is taken from R. v. Folino at paragraph 25:

"Having come to this conclusion, I wish to first make it clear that I fully agree with the sentencing judge that the offence of child luring must be dealt with seriously by the courts. The social policy underlying the enactment of this offence is clear. Many Canadian families have home computers with Internet access. Children are frequent users of the Internet. Children, as vulnerable members of our society, must be safeguarded against predators who abuse the Internet to lure children into situations where they can be sexually exploited and abused. In most circumstances involving the offence of child luring, the sentencing goals of denunciation and deterrence will require a sentence of institutional incarceration. Indeed, it will only be in the rarest of cases that a conditional sentence will be appropriate in a case involving this offence ... [emphasis added]"

29 In R. v. Jarvis, the court confirmed at paragraphs 27 and 31 that generally conditional sentences are inappropriate for these charges, and that the general range of these sentences is dependent upon the facts but will be a period of incarceration from 12 months to two years. At paragraph 27 of the decision, the Court states:

"I will deal first with the appellant's appeal. In my view, a conditional sentence will generally be inappropriate for an offence of the nature committed by the appellant in this case. Given the degree of planning implicit in the offence and the seriousness of the conduct contemplated, the objectives of general deterrence and denunciation will rarely be satisfied by a conditional sentence of imprisonment ..."

Also at paragraph 31, the Court states:

"As to the Crown appeal, while I consider the sentence imposed by the trial judge to be a lenient one, I cannot say that the sentence is manifestly inadequate or that the trial judge erred in principle. The decisions of trial courts that were placed before us suggest that the range of sentence for this offence generally lies between twelve months and two years. Circumstances such as possession of child pornography or a record for other child sexual offences will require a sentence at the upper end of this range. Obviously, if the offender has previously committed the same offence, an even longer sentence may be required. The trial judge recognized that he was imposing a sentence below the usual range, but he had in mind a number of mitigating factors and the absence of any serious aggravating circumstances ... [Emphasis added]"

30 I agree with the principles and presumptions that apply in sentencing in child luring outlined by Watt J.A. in his dissent in R. v. El-Jamel at paragraphs 33 to 37:

33 "The legislative objective that undergirds the offence of child luring equally informs the principles that predominate in sentencing the convicted child lurer -- deterrence and denunciation: R. v. Folino, R. v. Jarvis (2006); and R. v. Alicandro (2009), 2009 ONCA 133.

34 Specific deterrence attempts to convince the person receiving sentence not to do it again. General deterrence tries to induce others who may be tempted to commit a similar offence not to do so. Denunciation targets a wider audience, the public. The role of denunciation is to convince the public that child luring is a true crime, a serious offence, not something obsolete, technical or minor: R. v. Innes (2008), 2008 ABCA 129.

35 The predominance of the sentencing objectives of deterrence and denunciation yields a general rule that the sentence imposed on convicted child lurers will be one of institutional or actual incarceration for a term of 12 months to 2 years: Folino at para. 25; Jarvis at para. 31; Alicandro at para. 49. The general rule is not without exception: the term of imprisonment may be served conditionally rather than institutionally. But the teachings of Folino are that conditional sentences of imprisonment are only appropriate "in the rarest of cases": Folino at para. 25.

36 The decision in Folino exemplifies what the court considered one of "the rarest of cases" in which a conditional sentence of imprisonment was appropriate. A negligible risk of recidivism. Acceptance of responsibility. Participation and progress in treatment for management of stress. A devastating impact of proceedings on Folino and his family. Assaults by other inmates while in custody awaiting release. And uncontradicted evidence of a very fragile mental and physical state due to the proceedings and of the detrimental effect of reincarceration on Folino and his three young children.

37 Imposition of a conditional sentence of imprisonment rather than a term of institutional imprisonment on conviction of child luring must also be consistent with the principles that govern conditional sentences. The conditional sentence must be consistent with the fundamental purpose and principles of sentencing described in ss. 718 - 718.2 of the Criminal Code. Although a conditional sentence of imprisonment can provide significant denunciation and deterrence, some circumstances evoke a need for denunciation and deterrence that is so pressing that incarceration will be the only suitable way in which to express society's condemnation of an offender's conduct or to deter similar conduct in the future. In those cases, incarceration is the preferable sanction: R. v. Proulx, 2000 SCC 5."

31 The facts in all the cases cited above are not identical to the case at bar; there are differences between the aggravating and mitigating factors in each case. In general however, the courts have considered: compliance with bail terms, participation in assessment and rehabilitation programs, diagnosis and risk assessment as well as family support, the facts of each case and the background of the offender.

32 Another case to be noted is R. v. Dehesh [2010] O.J. No. 2817. This is a 2010 decision of the Ontario Superior Court of Justice. This case is an appeal by the crown of a conditional sentence imposed for an offence of luring a child. While ultimately holding that it would be inappropriate to overturn the imposition of a conditional sentence due to the time that had passed, the court found that the circumstances did not represent the "rarest of cases" permitting the imposition of a conditional sentence. The court rejected the analysis performed by the sentencing judge at paragraph 6 of the decision, stating:

"This conclusion runs directly contrary to the principle in Jarvis, Folino and Jepson, [2004] O.J. No. 5521. There was nothing exceptional about this case that would take it outside that principle. The evidence at trial disclosed graphic and explicit invitations to sexual touching and invitations to full sexual intercourse. These were advanced by the accused almost immediately upon contacting a person who held herself out repeatedly to be 13 years old, through the medium of an internet chat room. The accused followed up these invitations, again almost immediately and repeatedly, with invitations and arrangements to meet and with a photograph of a penis. Eventually a meeting was arranged and the accused attended, although he left after waiting for a period of time. These were all aggravating factors. There were also mitigating features to the case, none of which made it "rare" or "exceptional": the accused has prior criminal record; he is married and has the support of his spouse; he is likely not a pedophile; he was bored and under stress due to the loss of a job and the offence appeared to be isolated an situational, given that the police found no other related activity after searching his computer."

33 Lastly, I turn to R. v. Dragos, (O.C.A) 2012 ONCA 538, the sentence appeal commences at para. 68. The Court of Appeal upheld the principles as set out in R. v. Woodward. The Court of Appeal upheld the 18 month sentence and at paragraph 88 quotes with approval paragraph 76 of R. v. Woodward, which states as follows:

"In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence."

[8] From the beginning of this line of cases, in both Folino and in Jarvis, the Court of Appeal made it clear that it would only be in the rarest of cases that a Conditional Sentence would be appropriate. A range of 12 to 24 months was suggested. Even in El-Jamal, where considerable deference was accorded to the trial court in upholding the granting of a Conditional Sentence, there was a strong dissent by Justice Watt. Shortly after El-Jamal, in Woodward, the Court re-examined the 12 to 24-month range and Justice Moldaver suggested a move to a range of 3 to 5 years in appropriate cases.

[9] The present law statutorily prohibits a Conditional Sentence in a child luring case but the Charter, as well as common law principles of fundamental justice, dictates that those subsequently enacted provisions increasing the accused's jeopardy do not operate retrospectively to bind the Court in considering an appropriate sentence for an offence which pre-dates the enactment of those provisions.

[10] Having said that, I have taken into account the message from both Parliament and our Court of Appeal that a Conditional Sentence will rarely, if ever, adequately reflect the gravity of the offence of child luring and I reject that sentencing option in the case at hand.

[11] As Justice Perkins-McVey did in Dobson, I acknowledge that, in the context of the range articulated by the Court of Appeal, each accused and each case has to be considered on its own merits according to all of the various circumstances of the particular offence and the particular offender.

Aggravating Factors

[12] The aggravating aspects of this case include the following:

• The virtual victim was only 14 years old.
• There was systematic "grooming" focused on building a level of trust in the intended victim.
• Some of the "chats" contained disturbingly graphic exchanges.
• The luring of the victim continued over an extended period of time.
• The accused, expressly, did not care that his victim was too young.
• There is no reliable expert assessment of risk going forward.
• The Pre-Sentence Report shows only limited insight into the gravity of the conduct engaged in.

Mitigating Factors

[13] The mitigating aspects of the offence and the offender include the following factors:

• The accused has no prior record.
• The accused conducted himself appropriately while on a lengthy and comprehensive bail.
• The accused has the support of a constructive and stable extended family.
• The accused never sought to deny the facts of these events but, rather, conducted his defence as a focused legal challenge on particular issues arising from the investigation.
• It is clear from the recorded "chats" that he, at certain points, vacillated in his intent to carry through with an actual physical meeting with the victim.
• The degree of explicit content was limited and somewhat isolated.
• He has taken some steps to seek rehabilitative counseling and did so prior to conviction.
• The Pre-Sentence Report was expanded upon at the sentencing hearing resulting in some tempering of the somewhat negative tone of the Report.

Conclusion

[14] In R. v. Snow, my colleague Justice Blouin referenced all of the principles canvassed in the line of authorities referenced above and sentenced the accused to a term of 15 months in prison (less pre-trial custody credit). As a summary prosecution that sentence was described as being "just below the maximum". The aggravating factors in that case were more severe than in the case before me. The accused in that case demonstrated no remorse, took no responsibility for his conduct; he projected blame onto the victim; and of course in that case, there was a real child who actually suffered real damage by the accused's conduct. On the other hand, Snow had an apparently reliable expert assessment predicting that he posed only "a low to moderate risk" of future criminal behavior.

[15] Mr. Mermer is a 35-year-old first offender. He was born and raised in Turkey. He left school at age 13 and did factory work for a few years prior to completing his 18 months of mandatory military service. He moved to Canada in 2001 and since that time he and his brothers have worked in construction trades.

[16] Mr. Mermer is married and has a child. He leads a simple life. He likes chatting online as a social activity. He has been "chatting" with women online for some time. Trolling for women online seems to be an ingrained habit and he seems likely to continue this in the future. In his Pre-Sentence Report he acknowledges that prior to his marriage he found women online and met with them for sex. His expressed plan for the future is simply to check ages more carefully. He seems to have limited insight into the nature and gravity of his conduct.

[17] Section 718 of the Criminal Code provides a convenient framework for consideration of the general purposes and principles of sentence. The mandate of section 718 is to impose just sanctions for criminal conduct. The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A proper sentence will adequately denounce unlawful conduct, specifically deter the offender before the Court and generally deter other like-minded individuals.

[18] In sentencing an individual the Court always hopes to foster rehabilitation where there is potential. However, just sanctions may also require the removal of the offender from society for a period of time, both to protect society and to send a message that serious misconduct precipitates serious consequences.

[19] The circumstances of this offender and the facts of this offence position the case at the mid to lower end of the range of sentencing for a crime that by its nature requires a denunciatory sentence. A balancing of all of the appropriate considerations brings me to the conclusion that a sentence of 12 months imprisonment is the appropriate disposition in this case. The accused was in custody for 5 days at the time of his initial arrest. Giving credit for pre-trial custody at 1:1.5 the effective term going forward will be 11 months and 22 days.

[20] The term of imprisonment will be followed by a period of probation for a period of two years on terms and conditions to be determined.

[21] In addition, there will be a DNA Data-Banking Order, a SOIRA Order and a prohibition Order per s. 161 for a period of 5 years.

Released: November 12, 2013

Justice William B. Horkins