Ontario Court of Justice
Date: November 20, 2018 Central East Region
Between:
HER MAJESTY THE QUEEN
— AND —
MICHAEL DUPLESSIS
Before: Justice F. Javed
Heard on: June 7, October 29, 2018
Reasons for Sentence released on: November 20, 2018
Counsel:
- M. Newell, counsel for the Crown
- D. Guido, counsel for the defendant
A. Introduction
[1] Michael Duplessis ("the defendant"), was convicted after trial of the criminal offence of agreeing with a person or making an arrangement with a person by means of telecommunication, to commit the offence of sexual interference with a person who was or believed to be under the age of 16, contrary to s.172.2(2) of the Criminal Code.
[2] The Crown proceeded by summary conviction.
[3] The trial proceeded with an agreed statement of facts under s.655 of the Criminal Code. This included the communications between the defendant and Detective Constable Jeff Lockwood of the Durham Regional Police Service, posing as "Sara Kristoff". The defendant posted an advertisement in the Casual Encounters section of Craigslist. "Sara" responded to the advertisement and told the defendant she had a three-year old daughter, "Deanna".
[4] Over the course of one week, the defendant and Sara communicated over email and text message. Sara told the defendant she was not into role-playing. Undeterred, the defendant sexualized the conversation and made an arrangement to commit various sexual acts involving Sara and Deanna.
[5] At trial, I rejected the defendant's evidence that he didn't think Deanna was real as he was role-playing. Nor did the evidence as a whole raise a reasonable doubt about his guilt. My reasons for conviction were released on February 5, 2018.
[6] At the conclusion of the trial, the defendant moved for a stay of proceedings under s.7 of the Charter of Rights and Freedoms (Charter) arguing he was entrapped by the police. The application was dismissed with reasons delivered on April 3, 2018. The matter was adjourned for preparation of a pre-sentence report (PSR) along with a constitutional challenge to the mandatory minimum sentencing provision ("MMP").
[7] Section 172.2(2) of the Criminal Code provides for a MMP of 6 months imprisonment where the Crown proceeds summarily. The maximum term of imprisonment is 24 months. The MMP is 1 year if the Crown proceeds by indictment.
[8] The Crown submits despite the 6 month MMP, an appropriate sentence in this case is a term of imprisonment of 15 months followed by a two year probationary period. In addition, the Crown seeks various ancillary orders.
[9] The defence submits that the 6 month MMP is unconstitutional as it amounts to cruel and unusual punishment in violation of s.12 of the Charter and the provision is also overbroad in violation of s.7 of the Charter. The defence argues that a fit sentence is a 15-18 month conditional sentence in the community pursuant s.742.1 of the Criminal Code. Alternatively, if the defendant needs to be separated from the community, the court should impose a 90 day intermittent sentence. As a final option, if the MMP is found to be constitutional, the court should impose the minimum penalty of 6 months imprisonment. The defence does not challenge the probation order or the various ancillary orders.
[10] The Crown's position is that both Charter arguments should be summarily dismissed as a proportionate sentence in this case far exceeds the 6 month MMP, thus the constitutional issues are moot. Alternatively, if the Charter arguments are considered by the court, the application should be dismissed as the hypotheticals proffered by the defence aren't reasonable. Moreover, the s.7 complaint that the MMP is overbroad is a water-downed version of the s.12 complaint which has no merit, thus also should be dismissed.
[11] These reasons explain why in the circumstances of this case, I agree with the Crown's position. In my view, a fit sentence having regard to the proper consideration of the sentencing principles far exceeds the 6 month MMP. Accordingly, the submission for a conditional sentence is not legally available by virtue of s.742(1)(b) of the Criminal Code. Nor does the quantum of imprisonment make it legally available for an intermittent sentence. Finally, I disagree that the minimum sentence of 6 months imprisonment would be a fit sentence in the circumstances of this case.
[12] I have concluded that a fit sentence in this case, balancing all the appropriate sentencing principles is 12 months imprisonment. Accordingly, the constitutional challenges are moot and need not be considered. My reasons for sentence should be read in conjunction with my reasons for conviction and reasons dismissing the entrapment argument where I made findings which are important to a discussion of a fit sentence.
B. The Circumstances of the Offence
[13] In December, 2016, the defendant posted an advertisement in the Casual Encounters section of Craigslist, an online classifieds portal.
[14] On January 3, 2017, DC Lockwood of the Internet Child Exploitation unit of the Durham Regional Police Service responded to the advertisement as he was drawn to the defendant's references to "younger women" and "age doesn't matter" in the advertisement. Sara specifically told the defendant she had a three year old daughter, Deanna.
[15] In my reasons for conviction, I held that the defendant's evidence that he didn't think Deanna was real was a reflection after he was arrested. The defendant provided a videotaped statement to the police which the parties agreed was voluntary. It conflicted with much of his evidence in the courtroom. Indeed, the communications were also inconsistent with his state of mind and actions shortly before the arranged meeting with Sara and Deanna where he was arrested in possession of alcohol, condoms, sexual paraphernalia referred to the parties as a "cock ring" and a doll for Deanna.
[16] I found as a fact that the defendant made an arrangement to commit the following sexual acts involving Deanna:
Wednesday January 4, 2017
- a. Having Deanna perform fellatio on the defendant;
- b. Ejaculating on Deanna and having her taste the ejaculate;
- c. Having Deanna watch the defendant perform cunnilingus on her mother;
- d. Inviting Deanna to perform cunnilingus on her mother;
- e. Inviting Deanna to engage in sexual touching;
- f. Having Deanna watch the defendant perform sexual intercourse with her mother and watch her mother be spanked.
Tuesday January 10, 2017
- g. Sexual intercourse with Deanna;
- h. Have Deanna watch the defendant engage in sexual activity with her mother.
Wednesday January 11, 2017
- i. Have Deanna watch the defendant perform cunnilingus on her mother;
- j. Have Deanna watch the defendant engage in sexual activity with her mother;
- k. Invite Deanna to engage in sexual touching or oral sex.
C. The Circumstances of the Offender
[17] The defendant is a 60 year old first offender. According to the PSR, he grew up in a supportive family, largely by his grandmother. His father was a Correctional Officer in Sudbury. He has limited contact with his three surviving siblings.
[18] The defendant has been in five long-term relationships and has been married on three occasions. Most ended because of infidelity or drug use. The PSR author spoke to his current ex-spouse with whom he shares a 19 year old son. Unfortunately, their son has been diagnosed with autism spectrum and requires a great deal of support. His ex-spouse continues to support the defendant. She acted as his surety and permitted him to reside in her basement. She stated the defendant did not have any anger, addiction or mental health issues and was for the most part, very lonely.
[19] In my view, a telling feature of the PSR is the defendant's disclosure to the author that he was sexually assaulted by an adult when he was a child. That is most unfortunate. He told the author he "blocked" it out of his mind and did not seek any counselling. Nor does he think he needs any counselling for the event which I'm sure was traumatic.
[20] The defendant had been gainfully employed but is currently on disability, collecting ODSP.
[21] The defendant denied any interest in pornography, exhibitionism or voyeurism. He stated he had no attraction to children and "may have" consented to role-playing. This comment to the PSR author is repeated in a psychiatric report prepared by Dr. Julian Gojer of the Manasa Clinic. Dr. Gojer's report is premised on the defendant's self-report, the agreed statement of facts, phallometric testing and an interview with some collateral sources. Ultimately, Dr. Gojer concluded that the defendant's arousal levels were "very low and no meaningful interpretation could be given to the testing". In addition, he opined "it is unlikely he [the defendant] has a sexual deviation and he presents with a low risk to reoffend".
[22] Given the protracted nature of the proceedings, the Crown did not seek to cross-examine Dr. Gojer on his opinion. Instead, Mr. Newell submitted that the report should be afforded little weight as it did not consider the courts finding of rejecting the role-play/fantasy scenario or his videotaped statement to the police. Mr. Newell says the report is largely self-serving.
[23] While I understand the Crown's concern, without having the opinion tested in the courtroom, I am inclined to accept it at least to the extent about the low risk to repeat the conduct. As cases have established, this is often an important consideration in sentencing for these types of offences.
[24] There are aspects of the opinion which supports my conclusion that the defendant's position that Deanna was not real was an after the fact reflection. While maintaining his position that Deanna didn't exist, he also told Dr. Gojer "I just didn't think", which I take to mean that he got carried away in his lust for Sara and the sexual acts he contemplated with her and Deanna. It was clear that the conversation involved both parties, not just Sara. In similar fashion, I also rejected his position advanced in the entrapment argument that Sara encouraged the discussion involving Deanna. When the communications are viewed as a whole, it is clear that the defendant sexualized the conversation when it came to Deanna. He had several opportunities to desist and chose not to. I accepted the evidence of DC Lockwood that he let the defendant carry the conversation, even though he [DC Lockwood] took on the persona of a willing participant. The conversation bears this out. For example:
THE DEFENDANT: I understand but with whom? You roleplaying as a little girl? Am good with that. Having sex in front of your child? Okay too.
SARA KRISTOFF: no I don't do roleplay … tried it and it seemed silly … but I don't like talking bout this on email I can't afford to pay for mins on my phone.. u able to text or kik or something?
[25] Dr. Gojer's report seems to support the defendant's view that in hindsight, he would not have followed through with the sexual acts involving Deanna because he knows it's morally wrong.
D. The Offence in Section 172.2 of the Criminal Code
[26] Section 172.2 of the Criminal Code creates an inchoate or a preparatory offence. In R. v. Legare, 2009 SCC 56, the Supreme Court of Canada at paragraphs 25-27, described the offence in the following terms:
25 It will immediately be seen that s. 172.2(1)(c) creates an incipient or "inchoate" offence, that is, a preparatory crime that captures otherwise legal conduct meant to culminate in the commission of a completed crime. It criminalizes conduct that precedes the commission of the sexual offences to which it refers, and even an attempt to commit them. Nor, indeed, must the offender meet or intend to meet the victim with a view to committing any of the specified secondary offences. This is in keeping with Parliament's objective to close the cyberspace door before the predator gets in to prey.
26 Speaking for the court in R. v. Alicandro, 2009 ONCA 133, 246 C.C.C. (3d) 1, Doherty J.A. observed that the purpose of s. 172.2 is evident from its language. I agree. In Justice Doherty's words (at para. 36):
The language of s. 172.2 leaves no doubt that it was enacted to protect children against the very specific danger posed by certain kinds of communications via computer systems. The Internet is a medium in which adults can engage in anonymous, low visibility and repeated contact with potentially vulnerable children. The Internet can be a fertile breeding ground for the grooming and preparation associated with the sexual exploitation of children by adults. One author has described the danger in these terms:
For those inclined to use computers as a tool for the achievement of criminal ends, the Internet provides a vast, rapid and inexpensive way to commit, attempt to commit, counsel or facilitate the commission of unlawful acts. The Internet's one-[to]-many broadcast capability allows offenders to cast their nets widely. It also allows these nets to be cast anonymously or through misrepresentation as to the communicator's true identity. Too often, these nets ensnare, as they're designed to, the most vulnerable members of our community -- children and youth.
Cyberspace also provides abuse-intent adults with unprecedented opportunities for interacting with children that would almost certainly be blocked in the physical world. The rapid development and convergence of new technologies will only serve to compound the problem. Children are the frontrunners in the use of new technologies and in the exploration of social life within virtual settings.
(Gregory J. Fitch, Q.C., "Child Luring" (Paper presented to the National Criminal Law Program: Substantive Criminal Law, Advocacy and the Administration of Justice, Edmonton, Alberta, July 2007), Federation of Law Societies of Canada, 2007, at s. 10.1, pp. 1 & 3)
27 What s. 172.2(1) prohibits is thus apparent both from its remedial purpose and from the express terms adopted by Parliament to achieve that objective.
[27] Accordingly, s.172.2 criminalizes the sexual predator's intentions not necessarily actions. If the predator acts on his intentions, that is obviously aggravating and may trigger different offences but what's clear is that the offence is designed to catch sexual predators before they act, not after. The focus is on the predator's intention at the time, not afterwards: R. v. Cooper, [2016] O.J. No. 5294 (Ont. Sup. Ct.) at para. 39. In my view, it is not a mitigating factor that the defendant did not act on his intention or claims he wouldn't have done so.
[28] That said, I do feel it is important to consider the question of whether an offender has some insight into their offending conduct when dealing with a preparatory offence. I have no basis to reject the opinion that the defendant now understands the severity of his actions and will likely not re-offend in the future, even though the phallometric testing offered no meaningful interpretation.
E. The Sentencing Provisions
[29] Section 718 of the Criminal Code provides that the fundamental purpose of sentencing is to protect society and contribute to respect for the law and the maintenance of a just, peaceful and safe society. These principles are realized through the imposition of just sanctions that reflect the enumerated sentencing objectives of denunciation, general and specific deterrence and rehabilitation.
[30] A fit sentence must be proportionate to the gravity of the offence and the degree and responsibility of the offender. This is realized by a careful balancing of the aggravating and mitigating factors. In R. v. Nasogaluak, 2010 SCC 6, [2010] S.C.J. No. 6, the Supreme Court of Canada reminded (at para. 43) that this exercise will vary in each case and will invariably push the sentence up or down on the scale of appropriate sentences for similar offences. Similarly, in R. v. Ipelee, 2012 SCC 13, [2012] S.C.J. 13, LeBel J. observed at para. 75, that sentencing judges engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences, of the person standing before them.
[31] There are few sentencing decisions dealing with s.172.2 of the Criminal Code but guidance can be gleaned from the offence of communicating with a minor in s.172.1 of the Criminal Code. In R. v. Jarvis, [2006] OJ No. 3421, the Ontario Court of Appeal upheld a 6 month jail sentence following a guilty plea for an offender who communicated online with an undercover police officer posing as an adolescent girl. At paragraph 31, Justice Rosenberg commented that the court was presented with decisions where the range for the offence was between 12 months and 2 years imprisonment. Of course, Jarvis was before Parliament amended the Criminal Code providing for minimum jail sentences.
[32] Almost 5 years later, the Court of Appeal revisited the issue in R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81. Justice Moldaver (as he then was) held at para. 58, that child luring over the internet has become "a pervasive social problem in the community". Mr. Woodward received an 18 month jail sentence. In dismissing the sentence appeal, Justice Moldaver suggested that the sentence in Jarvis of 6 months was "lenient" and the range of 12 to 24 months had to be revised given the 2007 amendments in which Parliament doubled the maximum punishment from 5-7 years.
[33] The Court of Appeal reviewed the issue again in R. v. Morrison, 2017 ONCA 582. In Morrison, the offender communicated with an undercover police officer who was posing as a 14 year old girl in an online chat room. Morrison testified he thought he was participating in sexual role-play with an adult female. Unlike this case, Morrison did not arrange a meeting and ended his communications unilaterally. The trial judge had a doubt about whether Morrison believed the person he was communicating with was a child. However, he was convicted on the basis that he didn't take reasonable steps to ascertain the age of the person. The trial judge held that the 1 year MMP given the Crown's decision to proceed by indictment, contravened s.12 of the Charter as cruel and unusual punishment and sentenced the offender to an effective four month jail sentence followed a period of probation. The Ontario Court of Appeal upheld the trial judge's sentence.
[34] Ms. Guido relies on Morrison to anchor her position that a 4 month jail sentence should be the floor by which the defendant's sentence should be measured.
[35] With respect, I disagree. In my view, Morrison is not entirely on the same legal footing as this case.
[36] In Morrison, the defendant's moral blameworthiness was reduced because according to the trial judge, he didn't take steps to ascertain the interlocutor's age. That isn't the case here as there was no doubt that the defendant knew Deanna was a child and a very young one at 3 years of age. The question here was whether he believed she was real. The evidence established he knew she was real. Indeed, he was hoping to present her with a doll before he was arrested.
[37] Moreover, in Morrison, the Crown proceeded by indictment, not by summary conviction. I'm not prepared to read anything in to the Crown's decision to proceed by summary conviction in this case as the offence is a "super summary" offence. In other words, it would erroneous to simply assume the Crown in this case felt the circumstances weren't serious enough to warrant an indictable election. That decision can be made for a variety of reasons and in the post-Jordan era, requires the Crown to reflect carefully on the issue. In any event, the exercise of Crown discretion in this case was not premised on an oblique motive (nor was that argued) and inured to the defendant's benefit. The defendant is facing a 6 month, not 1 year MMP. All of this is to say that the legal matrix in Morrison is different than here. As counsel correctly point out, s.172.2 has not been the subject of a constitutional challenge to the MMP of either 6 months or 1 year.
[38] Morrison has been argued in the Supreme Court of Canada and at the time of delivering these reasons, remains on reserve. Given my obligation to proceed with sentencing as soon as practicable after an offender has been found guilty, I elected to not wait for the result in Morrison.
[39] Returning to Ms. Guido's submission, while there is some doctrinal appeal to simply assuming that the 6 month MMP in this case is also unconstitutional in light of Morrison – that would be incorrect for the following reasons.
[40] First, as already noted, Morrison dealt with a different provision of the Criminal Code. The difference in communicating with a minor as opposed to a third party in order to commit a designated offence with a minor may be a distinction with a difference. That issue was not argued before me, thus I need not delve into this debate. It is noteworthy that in either case, the aim is to protect the vulnerable minor.
[41] Second, Morrison dealt with a 1 year MMP, not a 6 month MMP, where arguably a consideration of proportionality and Crown discretion may be important. That too wasn't argued before me. The summary election may create an inflationary floor, however, I have chosen to simply ignore how the Crown chose to proceed as I consider the constitutional arguments in the abstract. Without deciding the issue, there may be a difference vis a vis proportionality if the defendant was facing a 1 year MMP as opposed to a 6 month MMP.
[42] Ms. Guido in her factum, advanced two separate Charter challenges, under s.12 and s.7. In oral argument, she effectively abandoned the s.7 claim as the complaint is not about the process at which the sentence is determined but rather the substance. In my view, this was a reasonable concession.
[43] Section 12 of the Charter ensures that "[E]veryone has the right not to be subjected to any cruel and unusual treatment or punishment".
[44] In R. v. Nur, 2015 SCC 15 at paras. 46 and 77, the Supreme Court of Canada outlined a two part test when considering a challenge to a MMP:
77 In summary, when a mandatory minimum sentencing provision is challenged, two questions arise. The first is whether the provision results in a grossly disproportionate sentence on the individual before the Court. If the answer is no, the second question is whether the provision's reasonably foreseeable applications will impose grossly disproportionate sentences on others. This is consistent with the settled jurisprudence on constitutional review and the rules of constitutional interpretation, which seek to determine the potential reach of a law, is workable, and provides sufficient certainty.
[45] The proper analytical approach was affirmed in R. v. Lloyd, 2016 SCC 13 at paragraphs 22-23:
22 The analytical framework to determine whether a sentence constitutes a "cruel and unusual punishment under s. 12 of the Charter was recently clarified by this Court in Nur.
A sentence will infringe s. 12 if it is "grossly disproportionate" to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: Nur, at para. 39 R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1073. A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the Court, or if the law's reasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur, at para 77.
23 A challenge to a mandatory minimum sentencing provision under s. 12 of the Charter involves two steps: Nur, at para. 46 First, the Court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. The Court need not fix the sentence or sentencing range at a specific point, particularly for a reasonable hypothetical case framed at a high level of generality. But the Court should consider, even implicitly, the rough scale of the appropriate sentence. Second, the Court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the offence and its circumstances: Smith, at p. 1073; R. v. Goltz, [1991] 3 S.C.R. 485, at p. 498; R. v. Morrisey, 2000 SCC 39 [2000] 2 S.C.R. 90, at paras. 26-29; R. v. Lyons, [1987] 2 S.C.R. 309, at pp 337-38. In the past, this Court has referred to proportionality as the relationship between the sentence to be imposed and the sentence that is fit and proportionate: see e.g. Nur, at para 26; Smith, at pp 1072-73. The question, put simply, is this: In view of the fit and proportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances? If so, the provision violates s. 12.
[46] For my purposes, the Supreme Court also added how trial judges are to approach the issue at para. 18:
18 To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on a sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender's sentence, as a condition precedent to considering the law's constitutional validity, would place artificial constraints on the trial and decision-making process.
[47] In light of the above, I start with a consideration of what is a fit and proportionate sentence in the circumstances of this case and whether it materially exceeds the bottom of the sentencing range. Mr. Newell urges the court to use a benchmark of 15-18 months given the facts of this case. However, given the paucity of decisions dealing specifically with s.172.2 of the Criminal Code, I will proceed on the basis that the bottom of the sentencing range is 6 months imprisonment as opposed to the dictum in Woodward which envisions a range of 12-24 months and higher for the s.172.1 offence. I have already explained why starting with a 4 month sentence isn't warranted in this case. I do so mindful of the adage that a sentencing range is merely a guideline: R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64.
[48] Mr. Newell submitted that post-Morrison, cases have continued to mete out sentences well in excess of the MMP's of 1 year and/or 6 months. He argues that this supports his position of 15 months imprisonment given the circumstances of this case. For example, in R. v. Wheeler, [2017] O.J. No. 6797 (Ont. Sup. Ct.), a 1 year MMP was imposed; in R. v. Van Es, [2016] O.J. No. 6986 (Ont. Prov. Ct.), a 2 year sentence was imposed concurrent to other offences and in R. v. Rodwell, [2016] O.J. No. 6843 (Ont. Prov. Ct.), a 2 year sentence was imposed consecutive to other offences. Many of the above cases involved other offences in addition to the luring offence, thus their persuasive value is limited.
[49] A helpful case is R. v. Gucciardi, 2017 ONCJ No. 5974. There, Justice Stribopoulos (now of the Superior Court of Justice) sentenced an offender who pled guilty to communicating with a police officer posing as a 14 year old girl named Katie. The offender communicated with "Katie" for about 3 weeks culminating in an intended meeting. Like this case, he was intercepted with possession of items destined for Katie.
[50] The Crown proceeded by indictment and sought a jail sentence of 15 months imprisonment. Stribopoulos J. in a thoughtful review of the law, sentenced the offender to 12 months imprisonment followed by a three year probation order. In doing so, he found that the offender engaged in "grooming" behavior. He didn't have the benefit of a risk assessment although the offender, like the defendant, sought treatment from the Manasa Clinic. Stribopoulos J. pointed to the offender's guilty plea, insight into his issue and desire to seek treatment as mitigating factors.
[51] Importantly, Stribopoulos J. noted that Mr. Gucciardi's case presented with aggravating factors that were not present in Morrison. In my view, the same applies here.
[52] In this case, it is aggravating that the defendant arranged to commit several, not just one sexual act involving Deanna. In addition, the acts were highly explicit and had some element of grooming as Deanna was to observe some sexual acts with the defendant and Sara – and also be involved as a third participant. The nature of the acts ranged from touching to intercourse, thus cascading in severity. I also agree with the Crown that it's aggravating that the defendant encouraged Sara as Deanna's mother to breach her position of trust vis a vis her young daughter: R. v. Gardner, [2017] B.C.J. No. 559 at para. 74; R. v. Wheeler, supra at para. 16. Unlike his comments to Dr. Gojer, the defendant's communications reflect acts of exhibitionism and voyeurism. In Morrison, the offender suggested that the girl he was communicating with, touch herself. Unlike here, he ceased communications with her asking "Who are you?" In my view, the conduct here is more serious. The defendant's moral blameworthiness is higher even though it involved the participation of a third party (Sara) which was not present in Morrison or Gucciardi. The defendant testified he didn't think any parent would expose her child to this conduct but at the same time, it was him who sexualized the conversation. This after the fact reflection may contextualize the defendant's moral blameworthiness but does not significantly reduce it.
[53] In mitigation, the defendant is a 60 year old first offender. He has lived a pro-social life and has a support network in the community. He has a sick child who needs his support. No doubt any jail sentence will have a collateral impact on his autistic son: R. v. Suter, 2018 SCC 34. I am also mindful that I am to consider that this will be the defendant's first jail sentence: R. v. Priest, [1996] O.J. No. 3369 at paras. 26-27 (C.A.)
[54] Mr. Newell submits there is no evidence of remorse or insight. I tend to agree but only in part. I agree there is no remorse to the extent that the defendant didn't accept responsibility for his actions. However, the defendant was constitutionally entitled to insist on the Crown proving his guilt beyond a reasonable doubt. I agree with Ms. Guido that the case presented with some viable arguments. The law is clear that an absence of remorse is not an aggravating factor on sentence. At most, it simply disentitles the defendant of the benefit of a mitigating factor: R. v. Valentini (1999), 132 C.C.C. (3d) 262 (Ont. C.A.), at para. 82. Nor can I treat the defendant's disbelieved evidence of role-play/fantasy as aggravating on sentence: R. v. Kozy (1990), 58 C.C.C. (3d) 500 (Ont. C.A.). I disagree there is a complete absence of insight. I will not repeat my comments above that the defendant now understands the severity of his conduct and Dr. Gojer's opinion that he presents with a low risk to re-offend. This is some evidence of insight as he was convicted of a preparatory offence and subjected himself to phallometric testing. The defendant repeated that he has no intention of re-offending in his comments to the court, which I accept as genuine.
[55] In Morrison, the Court of Appeal said at paragraph 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 very wide." In my view, these comments apply with equal force to offences under s.172.2.
[56] Finally, in another case that post-dated Morrison, the Court of Appeal affirmed: "[T]his court has repeated many times where sexual predators exploit innocent children, deterrence and denunciation and the need to separate the perpetrators from society are the predominant objectives of sentencing: Woodward, at para. 76. In Jarvis, this court commented that 6 months is a lenient sentence…" See R. v. A.H., [2018] O.J. No. 4105 (C.A.) at paras. 48-53. In A.H. the Court of Appeal upheld a 15 month jail sentence for a luring offence which was motivated in large part by a 1 year MMP.
[57] Balancing all the aggravating and mitigating factors, I have concluded that a fit and proportionate sentence in the circumstances of this case is 12 months imprisonment. While the Crown's submission of 15 months imprisonment was reasonable, 12 months gives effect to the unique circumstances of this case which involved a third party. It justifies a departure from Morrison given the defendant's level of moral blameworthiness and the gravity of the defendant's intended actions involving a very young child. The minimum sentence of 6 months would be too lenient when the particular circumstances of this case are measured against other cases. Individualization strikes the right balance at 12 months.
[58] In light of the expert opinion that he presents with a low risk to re-offend, coupled with his insight that he now comprehends the seriousness of his intended conduct, it justifies a reduction in the sentence. That evidence was not present in Gucciardi and is some comfort to the community.
[59] To repeat, in luring offences, an unwitting child is often a pawn for the online predator. Whether the predator speaks directly to a child or a third party to get access to a child, deterrence and denunciation are the dominant sentencing objectives which must send a strong message to online predators and would be predators: R. v. Folino, [2005] O.J. No. 4737 at para 25 (C.A.).
F. The Pre-Sentence Custody
[60] The parties agreed that the court should deduct the defendant's pre-sentence custody of 12 days (January 12-23, 2017) enhanced at the rate of 1.5 days for each day, following the dictum in R. v. Summers, 2014 SCC 26, [2014] 1 S.C.R. 575. I am prepared to credit a total of 18 days.
[61] In addition, Ms. Guido submitted that the defendant has been on a stringent bail without issue. It was argued that while the defendant was not bound by a term of house arrest, the bail became a de facto house arrest given his surety's enhanced supervision. Ms. Guido fairly submitted that while the defendant will have been on bail for approximately 20 months at the time of sentencing, it was approximately one year at the time of conviction. She submits that the court could award the equivalent of 2-2.5 months credit. Mr. Newell declined to make any submissions on this point save and except to remind the court that the bail did not contemplate house arrest. In equal fairness, he said it was open to the court to take into account the defendant's personal circumstances, which may include the circumstances of his bail and his old age.
[62] In R. v. Downes (2006), 205 C.C.C. (3d) 488 at para. 33, the Court of Appeal held "time spent under stringent bail conditions, especially under house arrest, must be taken into account as a relevant mitigating circumstance. The Court went on to say "[I]t is incumbent on the sentencing judge to explain why he or she has decided not to take pre-sentence house arrest into account."
[63] In R. v. Ijam, 2007 ONCA 597, [2007] O.J. No. 3395 (C.A.), the Court of Appeal reviewed some authorities on point held and held as follows:
37 The import of the above reasoning is this: Pre-trial bail and pre-trial custody are very different concepts. Their foundations are different because their realities for accused persons are different. That said, there will be cases - Downes, with long-term house arrest bail conditions, is one - where a sentencing judge should give mitigation effect to pre-trial bail. However, there will be many other cases - Lawes and Hunjan are examples - where this factor should attract little, if any, weight.
[64] In my view, there isn't clear evidence as to how the circumstances of the defendant's bail prejudiced him or caused him undue hardship which merits the extra credit advocated by Ms. Guido. However, some context is important. The defendant is highly dependent on his support network. This includes his ex-spouse and their child. His ex-spouse stepped in to assist her ex-husband and permitted him to live in her basement. Even if the defendant chose self-imposed exile, possibly for fear of losing her supervision and support, this deserves some consideration. I am prepared to infer that the defendant incurred some hardship while on bail, which had some deterrent and salutary effects on him. Given all the circumstances, it would not be an error to award some credit. The decision to do so is discretionary, thus I am prepared to award an additional month or 30 days of extra credit. In my view, any more credit is not in keeping with the rationale in Downes where the offender was granted credit for house arrest under legal compulsion.
[65] Accordingly, the total pre-sentence custody is 48 days. I am prepared to deduct this from the sentence of 12 months imprisonment.
G. The Constitutional Challenges
[66] Given my conclusion that a proportionate sentence in this case having regard to the sentencing principles in s.718 of the Criminal Code and the authorities is 12 months imprisonment, this materially exceeds the MMP of 6 months. Even if I had used 4 months imprisonment as the benchmark by which to measure this case, a 6 month MMP is not "so excessive as to outrage standards of decency" or "abhorrent or intolerable" to society.
[67] In accordance with Lloyd, the issue of whether the provision violates s.12 of the Charter as cruel and unusual punishment, is rendered moot and need not be considered.
[68] I also agree with the Crown that the s.7 challenge was a "water-downed" version of the s.12 complaint. The s.7 challenge is similarly moot and need not be considered.
[69] Parenthetically, I will add that if I were to consider the s.12 challenge, I would have dismissed the application because the hypotheticals proffered by the defendant were not reasonable: R. v. E.J.B., 2018 ABCA 239, [2018] A.J. No. 911 (C.A.) at paras. 64-67 citing R. v. Goltz, [1991] 3 S.C.R. 485 at 519; R. v. Nur, supra at paras. 47-62. For example, both contemplated circumstances where the defendant could be acquitted of the offence. The hypotheticals must produce a sentence that is grossly disproportionate. With respect, they did not meet this objective.
[70] Similarly, the s.7 challenge would have also failed because the complaint seeks to re-cast a proportionality argument under the guise of a sentencing provision being overbroad. This argument was considered and rejected by Justice Then in R. v. Forcillo, 2016 ONSC 4896, [2016] O.J. No. 4043 at paras. 129-152 (Ont. Sup. Ct.), affirmed 2018 ONCA 402, [2018] O.J. No. 2263 at para. 174 (C.A.), leave to appeal to the SCC filed, [2018] S.C.C.A. 258.
H. Conclusion
[71] The defendant is sentenced to a 12 month jail sentence minus credit of 48 days leaving a remnant of 312 days which results in an approximate sentence of 10.4 months imprisonment.
[72] This will be followed by a probation order of 2 years. I will invite submissions on appropriate terms and conditions.
[73] On consent, there will be the following orders:
(i) An Order under s.487.051 of the Criminal Code requiring the defendant to provide a DNA sample;
(ii) An Order under s.490.013(1) of the Criminal Code requiring the defendant to comply with the provisions of the Sex Offender Information Registration Act for a period of 10 years.
(iii) An Order under s.161(1) of the Criminal Code requiring that after the defendant's release from custody, the defendant will be prohibited from using a "computer system" within the meaning of s.342.1 of the Criminal Code for the purpose of communicating with a person under the age of 16 years except for immediate family members. This Order will also prohibit the defendant from using any Internet, or any similar communication service to access any content that violates the law or to directly or indirectly access any social media sites, social network, Internet discussion forum or chat room or maintain a personal profile on any such service. The length of this Order will be 10 years.
(iv) A victim fine surcharge in the amount of $100.00.
[74] I would be remiss if I did not commend both counsel on the quality of their material and submissions. It was of great assistance to the court.
Released: November 20, 2018
Mr. Justice F. Javed