ONTARIO COURT OF JUSTICE

DATE: June 15, 2021 COURT FILE No.: BRAMPTON 3111-998-17-2435-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

PEZHMAN SABERI

Before: Justice K.L. McLeod

Heard on: December 24, 2019, April 23, 2021 Sentence delivered on: June 11, 2021 Reasons for Judgment released on: June 15, 2021

Counsel: Daniel Galluzzo, counsel for the Crown Roza Rokni, counsel for the accused Pezhman Saberi

K.L. McLeod J.:

[1] Mr. Saberi has pleaded guilty to one count of luring which is governed by Section 172.1(1)(b) of the Criminal Code. The Crown proceeded by indictment and seeks the minimum sentence as provided for in Section 172.1(2): that is; one of one year’s incarceration.

[2] Mr. Saberi applied for an order declaring that the mandatory minimum sentence (hereinafter referred to as “the MMP”) in s. 172.1(2)(a) of the Criminal Code violates his rights under s. 12 of the Charter and is not saved by s. 1. Mr. Saberi alleges that the MMP of one year is grossly disproportionate and seeks a declaration that s. 172.1(2)(a) of the Criminal Code is unconstitutional and of no force or effect in this case, pursuant to s. 52 of the Constitution Act.

[3] Ms. Rokni on behalf of Mr. Saberi submits that the appropriate sentence is the 69 real days of time served by Mr. Saberi before receiving bail, plus probation and other ancillary orders. Ms. Rokni submits that if further incarceration is required it should be limited to a total sentence of six months less one day.

[4] When an application such as this is brought, there is a two-stage process through which I must proceed:

1. I must decide what is a proportionate sentence for this offence and this offender having regard to the principles of sentencing and
2. I must ask myself: does the mandatory minimum require that I impose a sentence that is a grossly disproportionate sentence on Mr. Saberi or on other persons in reasonably foreseeable situations? See R. v. Nur, 2015 SCC 15.

Question 1: What is a proportionate sentence for this offender and this offence having regard to the purposes and principles of sentencing contained in Section 718, 718.1 and 718.2.

The Admitted Facts of the Offence

[5] On February 7, 2017, Officer Losier (Badge 2641) of the Peel Regional Police commenced an undercover investigation on the website Craigslist.com.

[6] Within this website, there is a section called “Casual Encounters". Officer Losier observed an advertisement titled: “Looking for BLONDE girl -M4W (Mississauga)”.

[7] Within the text of the advertisement, the following was detailed: “I am looking for blonde girl„,younger is better... age is not matter at all"

[8] Officer Losier posed as a 14-year-old Grade 9 female named “Abbie”. At 1:38 p.m. on February 7, 2017, she responded to the advertisement: “hi I jus saw ur ad im 14 how r u?”

[9] It is admitted that Mr. Saberi answered saying he was a 38-year-old from Mississauga named "George".

[10] Within 13 minutes of this first exchange, "George" asked "“Abbie”" if they could meet. By 2:02 p.m., he stated, without prompting: “Would you like be my little daughter and call me daddy? I would love to have you in my arms...”.

[11] After a few email exchanges, "George" sent “Abbie” his cellphone number.

[12] Thereafter, communication continued via text messaging.

[13] “George" and “Abbie” communicated through text messages from February 8, 2017 to February 23, 2017. The text conversations were, in general, intimate, romantic, and sexual in nature.

[14] For example, on February 12, 2017, "George" told “Abbie”:

1. That he would teach her about sex "from A to Z";
2. Since she is a virgin, he has to take his time to make her familiar with everything;
3. He would kiss her lips, all over her neck, all over her ears, and her breasts;
4. He said he would "go down” on “Abbie” and lick between her legs;
5. He asked “Abbie” to call him so that they could talk on the phone about sex; and
6. He said he wanted to kiss her lips at their meet and, if they go for sex, he would kiss and lick all over her body.

[15] During a phone conversation, "George" advised “Abbie” to erase all the messages and save his phone number under a girl's name so that “Abbie’s” mom would not see.

[16] There were multiple occasions during the text message conversation that “George" would tell "Abbie" to erase the messages.

[17] “Abbie” told “George" she was going on vacation. "George" told "Abbie" to take pictures in her bikini while she was on vacation and send them to him.

[18] A meeting was arranged between "George" and "Abbie" for February 23, 2017 at 210 Steeles Avenue West. "George" planned to bring "Abbie" to a hotel. He called “Abbie" and told her not to say that she is underage because he does not want to go to jail. During the text message conversation, a similar conversation took place. "George" asked "Abbie" what she will wear. He directed her to wear something that will not get attention and that it would be better if she looks older.

[19] “Abbie” asked "George" to bring M&M's to the meeting and he agreed. "George" sent “Abbie” a picture of 3 bags of M&Ms. "George" told "Abbie" that he drives a BMW X3.

[20] On February 23, 2017 at approximately 4:45 p.m., Mr. Saberi arrived at the meeting location in a white BMW X3. At that time, he text-messaged "Abbie" to tell her that he was at the meeting place.

[21] Mr. Saberi was arrested at the meeting location for the Child Luring offence. He was in possession of a Samsung Cellphone as well as 3 packages of M&Ms.

[22] Mr. Saberi gave a statement to police, which indicated that he was the individual in the conversation with “Abbie”, believed she was a real person, and believed she was 14 years old. He also said he never booked a hotel room.

Personal Circumstances of Mr. Saberi

[23] Mr. Saberi is 38 years old from Iran. His parents still continue to reside there as do his two siblings. Not surprisingly, his parents, who are described as being religious but liberal, stopped communicating with him except through his brother after being told of this alleged wrongdoing.

[24] Mr. Saberi competed a diploma in computer software in 2000 and then went to Dubai where he obtained an MBA from Atlanta plus other IT certifications. He moved to Canada in 2013. He is not a Canadian Citizen, rather he is a permanent resident after originally claiming refugee status.

[25] He was found to be a Convention refugee on the basis of a well-founded fear of persecution in his home country. As he has been convicted, Mr. Saberi will be subject to a deportation order and if he is deported, he will be inadmissible to Canada for life. The only possible window of hope of remaining in Canada is through an appeal to the Immigration Appeal division on humanitarian grounds. That right of appeal is only available to him if he receives a sentence of less than six months (including allowance for pretrial custody).

[26] Mr. Saberi is married; his wife, who is 42 years old, is his surety. He says they want to start a family after he completes his criminal charges. He reported that when he committed this offence, he and his wife had had their physical relationship interrupted as both were working so hard, they could only see each other once a week and he had some problems with a situation with an aunt. Since his arrest, his wife has resigned her job and their married life has improved.

[27] Mr. Saberi’s wife has penned a very supportive letter. She is concerned her husband will be deported which will "mean a death sentence for him" due to his former opposition to the regime. She suggests that he is fully cognizant of his wrongdoing, and that he has changed and deserves another chance.

[28] There is also a letter of support from his friend Reza Nabhani, President of Advance Group, a mechanical maintenance company. Mr. Saberi is the godfather to his daughter and has been a real friend. He is all knowing of Mr. Saberi’s wrongdoing and undertakes to continue that support.

[29] Also provided is a letter confirming Mr. Saberi as a donor to Save the Children.

[30] A fulsome report authored by Dr. Monik Kalia, Clinical & Forensic Psychologist, who assessed Mr. Saberi in 2017 when he was charged, provided helpful information about his background, and a risk assessment. There is also a second risk analysis & assessment from 2017 authored by Targol Ansari under the letterhead of Canadian Concurrent Disorders Treatment.

[31] With respect to his rationale for this offence, Mr. Saberi explained to Dr. Kalia the following: He was bored, working from home, he and his wife were not having "a good time" due to the work schedule and a stressful relationship with his aunt.

[32] His curiosity was triggered by seeing other Craigslist advertisements and he used that language as a precedent to draft his own.

[33] While “Abbie” told him, in responding to his advert, that she was 14, he "ignored the fact telling himself that people generally lie about their age and picture”. He said initially he just wanted to take this "girl" for ice cream. He said he was more interested to have a conversation with her. He said he never had any sexual contact with children, and he wishes no harm to any child.

[34] Mr. Saberi underwent various psychological tests which led to the following assessment of his risk: “Notwithstanding the absence of any mental illness, personality disorder, or sexual deviation, his behaviour and the inappropriate content of his communications with the police officer posing as a 14 year old girl is disturbing and at the lowest level is indicative of very poor judgment. At the highest it suggests some hebephilia attraction.”

[35] He goes on: “Clinically I see his offence as one of opportunity and not the actions of a predator looking for a child”. Dr. Kalia concludes that Mr. Saberi is at low risk and involvement in counselling should reduce that risk.

[36] Apparently, Mr. Saberi has been in counselling – both individual and with his wife. Dr. Kalia also recommends group counselling for sex offenders which is available through CAMH or the clinic with which he is associated, the Manasa Clinic funded by probation and parole.

[37] The Canadian Concurrent Disorders Treatment Assessment was limited to "the efficacy of the subject’s participation in a treatment program with respect to the subject's psycho-social sequelae contextualized with the subject’s diagnosis depression anxiety and stress depression due to martial conflicts”. The author found strong evidence that Mr. Saberi was deeply affected by effects of PTSD and recommended trauma-based psycho-social treatment. The results of this assessment also state that he is low risk to reoffend and would not do well in jail because he is terrified of the jail environment, would be at risk of a mental breakdown and it would cause more distance in his marriage, which he has worked hard to bridge with his supportive wife.

[38] This diagnosis of depression is renewed in a letter dated March 16, 2021 from Dr. Yaldo Mirmesdagh of Discovery Family Health. Apparently, Mr. Saberi is suffering from anxiety which has increased, and his marriage is suffering. He is being medicated.

The Principles and Purpose of Sentencing

[39] Section 718 of the Criminal Code requires that I adhere to the fundamental purpose of sentencing: that is to impose just sanctions that have the following objectives:

A. Denunciation B. Specific and general deterrence C. Separation of offenders where necessary D. Rehabilitation E. Reparations for harm done to victim or to the community; and F. To promote a sentence of responsibility in offenders and acknowledgement of the harm.

[40] In addition, Section 718.2 requires that I take into consideration both the aggravating and mitigating factors of the offence and the offender.

[41] It is also required that I impose a sentence that is similar to sentences imposes on similar offences committed in similar circumstances (the principle of parity) and that I should impose restraint in imposing jail.

[42] Overriding all of these purposes is the fundamental principle of sentencing: that any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

The Gravity of the Offence

[43] In R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada took the opportunity to provide “guidance” on the sentencing principles for sexual offences against children. The court stated:

….courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle. The wrongfulness and harmfulness impact both the gravity of the offence and the degree of responsibility of the offender.

[44] The court directs that sentencing courts must recognize and give effect to: (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences.

[45] In assessing the seriousness of the offence, therefore, for child luring offences of all types, whether it be with a real child or with a pretend child, many of the same considerations are engaged. The discussions that ensued between Mr. Saberi and “Abbie”, while not as explicit in many of the cases, was about sexual activity and what he would do to her. It was about hotels, it was about secretive texting, it was about dressing to look older when they meet so as not to raise suspicion, it was about inquiries about underwear, and it was about Mr. Saberi going onto a website which was, apparently, open to such advertisements; he used them as a precedent for the text of his post. The utter wrongfulness of this activity cannot be over-emphasized. Therefore, the gravity of the offence, aimed at a child is not mitigated by the fact that this was an undercover officer, not a real child.

The Degree of Responsibility of the Offender

[46] Referring again to R. v. Friesen, the Supreme Court considered that where there is the absence of a real victim, as in this case, because of an undercover operation, it does not mean the defendant can claim credit for that distinction and therefore minimize his responsibility. That was happenstance, really what must be considered is that; Mr. Saberi was intentionally communicating with a person who he thought was 14 and had a specific intention to facilitate the commission of a sexual or other offence. This is even more the case when the target actually arrives at the meeting place, bearing a reference to the text messages. Mr. Saberi arrived with the M&M candies requested by “Abbie”.

The Pressing Objectives of Sentencing in Child Luring Cases

[47] The Supreme Court of Canada’s guidance on child luring also informs the prioritization of the objectives of sentencing: general deterrence and denunciation are the major priorities. While specific deterrence and rehabilitation remain objectives, they pale in significance to the pressing need for denunciatory sentences which would deter others from entering into the realm of internet child luring.

Aggravating Factors

[48] Mr. Saberi initiated the advertisement. While not specifying a child; he did use descriptors such as “younger is better” and “age does not matter.”

[49] When contact was established, he immediately called her “sweetie” and asked her to meet. Within ten minutes of this first contact he was texting: “Daddy loves you so much”, “would you like to be my little daughter?” and “call me daddy”, and “I would love to have you in my arms”.

[50] There were numerous conversations over a period of 12 days.

[51] Mr. Saberi, while appearing to be kind and caring, was in fact grooming and this is no more obvious than when he was describing the sexual teaching he would undertake.

[52] He attended the meeting place having asked that “Abbie” dress older so as not to attract attention.

Mitigating Factors

[53] Mr. Saberi has pleaded guilty at an early stage of the proceedings despite the fact that this is a 2017 offence: it was never set down for trial. Also, a year of the delay is a result of the Pandemic; neither counsel are suggesting that Mr. Saberi took active steps to delay this proceeding. Indeed, when offered the possibility of remanding the matter until he has had his second vaccine in September, Mr. Saberi declined and wished to proceed to receiving judgment on sentence on June 11, 2021.

[54] Mr. Saberi has been on release for four years; there have not been any breaches.

[55] Upon his arrest Mr. Saberi admitted his wrongdoing to the police.

[56] He has undergone two psychological assessments and appears remorseful and insightful.

[57] He has a supportive family, a job, and has undertaken rehabilitation efforts.

[58] He is a convention Refugee and apparently will face great danger if he is returned since he had protested against the regime before leaving Iran.

[59] As a result of the overall effects of the uncertainty of his deportation fate and these proceedings, Mr. Saberi is now being medicated for anxiety.

The Principle of Parity and the Range of Sentence

[60] Section 718.2 speaks of other sentencing principles and there are two which are applicable in this case: (b) a sentence should be similar to sentence imposed on similar offenders for similar offences committed in similar circumstances; and (d) an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.

[61] An examination of the similar cases and dispositions imposed is my obligation and it is in this regard. I will turn to a discussion of the range of sentences that has informed my decision. I would say there have been two watershed cases of high appellate authority that have changed the landscape as to how these offences are considered: the trilogy of R. v. Morrison cases, and, of course, the aforementioned R. v. Friesen.

[62] Prior to R. v. Morrison the prevailing law for a sentence on a child luring case was R. v. Jarvis in which Justice Rosenberg reviewed the previous cases at that time and suggested they revealed the range of sentence was considered between 12 months and 2 years. Then came R. v. Woodward, 2011 ONCA 610 in which Justice Moldaver (then of the Ontario Court of Appeal) stated that the range referred to by Justice Rosenberg – if it was a recommended range – needed to be revised given the 2007 amendment to the maximum sentence for this offence from 5 years to 10 years. Rather he considered that with the:

…..introduction of properly tendered evidence that the offence has been a pervasive social problem, I believe that much stiffer sentences in the range of 3-5 years might well be warranted to deter denounce and separate from adult predators who would commit this insidious crime.

[63] In Woodward, the defendant, who was 30, had communicated with a real child of 12 via a chatroom: she pretended to be 14 initially but confessed to being 12, he pretended to be between 18 and 20. When they met he had her masturbate him, perform fellatio on him and had vaginal intercourse with him.

[64] Then came additional Parliamentary amendments which increased the maximum sentence to 14 years and legislated a mandatory minimum penalty: for summary conviction offences it was 3 months – that has now increased to 6 months and for cases where the crime has proceeded by indictment to a mandatory minimum of one year.

[65] Then came R. v. Morrison, 2015 ONCJ 599 in which my colleague Justice Gage, at first instance, after a trial where the Defendant had communicated, as in R. v. Jarvis, in fact with an undercover officer, concluded that the minimum one year sentence was grossly disproportionate in the defendant’s circumstances and therefore violated, without justification, Section 12 of the Charter. He imposed a sentence of 4 months incarceration to be followed by one year of probation.

[66] A unanimous Ontario Court of Appeal upheld that decision (2017 ONCA 582) concluding that:

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 and that the range of seriousness of offences committed under Section 172.1 is evidently very wide.

[67] The court therefore concluded that the MMP of one year for Mr. Morrison would amount to a grossly disproportionate sentence. This judgment was released on July 10, 2017.

[68] Morrison was then appealed to the Supreme Court of Canada and on March 15th, 2019 the Supreme Court (R. v. Morrison, 2019 SCC 15) overturned the finding of the Ontario Court of Appeal on what I will call the substantive trial issue of reasonable steps. The majority declined to rule on the constitutional validity of the MMP given that the court had ordered a new trial for Mr. Morrison. What the majority did say however is that the MMP, where the Crown proceeds by indictment is "at the very least constitutionally suspect”. Notwithstanding that comment, the court overturned the decision of the Court of Appeal with respect to Section 12, thereby restoring the MMP, and remitted the matter back for trial.

[69] Justice Karakatsanis dissented only on the MMP issue and concluded that the broad scope and hybrid nature of the child luring provision encompasses situations that can vary to such an extent to affect the moral blameworthiness of the offender and the potential harm inflicted on the victim. She wrote:

….. an examination of the scope and potential applications of the offence as informed by lower court jurisprudence, clearly demonstrates that short periods of imprisonment - or even conditional sentences, conditional discharges or suspended sentences - are sometimes fit and proportionate in the circumstances.

[70] Project Raphael was a project conducted by the York Regional Police; 104 people were apprehended in a "sting operation" One of those people was Douglas Cowell. He responded to an advertisement posted on Backpage.com a website (I understand now no longer) which was used to buy and sell sex. The advertisement was from someone posing as an adolescent female. Mr. Cowell responded, and messages were exchanged. She said she was 16: she was in fact an undercover police officer. A meeting was arranged for possibly anal intercourse for a fee. When the defendant appeared at the designated meeting place, a hotel, he carried with him the fee of $200 and condoms as requested by the young woman.

[71] After a trial and an unsuccessful 11(b) motion for delay, Mr. Cowell was convicted and sentenced to 12 months in jail on the child luring matter.

[72] The Court of Appeal (R. v. Cowell, 2019 ONCA 972) upheld the decision of the trial judge and by a majority, Justice Trotter dissenting, chose not to deal with the MMP issue as the reasonably hypothetical scenarios had not been argued in front of them. Justice Trotter disagreed, however, stating that the reasonably hypothetical approach mandated a finding of unconstitutionality of the MMP.

[73] I want to turn back to Project Raphael: a summary of this York Regional Police initiative was referred to in R. v. Cowell. I can do no better than quote the Court:

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

58. The trial judge considered the apparent disparity between the sentences received by these similarly situated offenders and the sentence sought by the Crown in the appellant's case. He realized that access to the lower range required an election to proceed summarily under s. 172.1.2 The Crown argued that, in those other cases, a plea of guilty was a key factor in the decision to proceed summarily. Also, the trial judge noted that there were "detailed psychological assessments provided, some of which, if not all included phallometric testing, and that is absent in this case." The trial judge accepted that such testing may be beyond the financial means of certain accused people and expressed concern about the disparity. (Emphasis added)

[74] Two other decisions from that same Project are of note: in R. v. Saffari, [2019] O.J. No. 6177 the defendant was found guilty after trial. He had responded to a York Regional Police advertisement and attended at the “meet” for the purpose of having oral sex and intercourse with a purported 14-year-old, for $80 for half an hour. Like Mr. Saberi, Mr. Saffari was likely to be ordered deported with no right of appeal if he received a sentence of more than 6 months, although Mr. Saffari was born in the Netherlands: a far cry from the regime in Iran. Mr. Saffari was 25, was employed as a mortgage agent and, like Mr. Saberi, was suffering from anxiety and was very scared of going to jail. Justice Henschell imposed a sentence of 5 months, having found the MMP unconstitutional.

[75] In that decision Justice Henschell also referred to another Project Rafael case: R. v. Dare in which Mr. Dare was convicted after a jury trial. He had gone to meet a purported 15-year-old after answering an advertisement placed by Peel Regional Police. He was 28 years old, had strong support, was of low risk to reoffend, his father had disowned him as a result of the offence, and he was in Canada on a work permit. The immigration consequences seemed to the sentencing judge to be disproportionate to his moral blameworthiness and character. The trial judge imposed a 90-day sentence.

[76] Finally, from the same Project came R. v. Chang, [2019] O.J. No. 5926: he was sentenced originally, after a trial, to 8 months imprisonment and two years probation. He too had the same overwhelming immigration consequences to be deported to Taiwan where he had no one and no connection. Mr. Chang appealed both the conviction and the sentence. The sentence appeal was allowed by all three judges of the Court of Appeal because he would be deported. The Court concluded:

Reducing the sentence from eight months to six months less a day will preserve the appellant’s right to appeal to the Immigration Appeal Division for consideration of the humanitarian and compassionate grounds of this case. It will not render the sentence demonstrably unit, having regard to all the circumstances of the offence and this youthful first offender.

[77] All these cases speak to luring where there is an undercover officer and no actual harm. In the cases involving the Project, where the defendant pleaded guilty, the Crown proceeded summarily. Where the defendant proceeded to trial and tested the evidence and offered a defence which was not accepted these defendants received sentences well under the MMP. It is noteworthy that R. v. Chang was released by the Ontario Court of Appeal in November 2019, the Supreme Court of Canada reinstated the MMP in March of 2019. It is also of note that many of these cases involved a finding of guilt on a second offence as well, that of Obtaining Sexual Services for Consideration contrary to Section 286.1 of the Criminal Code.

[78] If parity of sentence is a real objective, Mr. Saberi should be dealt with in the same way as these other defendants. The only factor that is more aggravating is that Mr. Saberi posted the advertisement, but there are also other mitigating factors which these cases did not have, including the guilty plea. The jurisprudence on the reduction of sentence where there is a guilty plea is well known.

[79] While R. v. Friesen was released in April 2020, Mr. Saberi’s offence was committed well before that release, and has been substantially delayed reaching fruition of these proceedings because of the COVID-19 pandemic. Mr. Galluzzo has fairly kept to his position with respect to sentence as was initially indicated before Friesen.

[80] The Supreme Court expressly declined to set increased sentencing ranges stating:

The appropriate length and the setting of sentencing ranges or starting points are best left to provincial appellate courts (R. v. Gardiner, at pp. 396 and 404). These courts “are in the best position to know the particular circumstances in their jurisdictions” (Lacasse, at para. 95). Indeed, a degree of regional variation for sentences is legitimate (M. (C.A.), at para. 92).

[81] Finally, I would note that in R. v. C.D.R., 2020 ONSC 645 the defendant’s defence of entrapment was rejected. It was again a matter where the defendant not only faced sentencing for the luring but for the obtaining sexual services for consideration offence. Justice De Sa stated as follows:

[31] I am also troubled by the discrepancy between the 1-year minimum in play here as compared to the 6-month minimum when the Crown elects to proceed summarily. As the Crown confirmed, numerous cases of a very similar nature have resolved in provincial court for 6-month sentences.

[32] In this case, I asked Crown counsel why the Crown chose to proceed by way of indictment. The Crown acknowledged that there was nothing particular about the facts that would distinguish it from cases that would ordinarily proceed summarily and face the lower minimum [s. 172.1(2)(b) and s. 172.2(2)(b)].

[33] The fact that sentences of 6 months have been found to be appropriate for the exact same conduct at issue here gives me pause. How can a seemingly arbitrary imposition of an additional 6 months incarceration in this case not be grossly disproportionate?

[82] While I agree that the Crown’s exercise of discretion has been not consistent between Peel and Newmarket, that is not for me to interfere with or comment on beyond what I have already said.

[83] This very issue was canvassed in R. v. Nur, 2015 SCC 15 where the court was quite clear; Chief Justice McLachlin (as she then was) stated:

This Court recently considered the distinction between the prosecution’s function in exercising its discretion to proceed summarily or by way of indictment and the courts’ sentencing function in R. v. Anderson, 2014 SCC 41. The Court emphasized that sentencing is a judicial function and opined that the fact a mandatory regime may require a judge to impose a disproportionate sentence does not alter the prosecutorial function in electing the mode of trial. As Moldaver J. explained for a unanimous Court:

Mr. Anderson’s argument in effect equates the duty of the judge and the prosecutor, but there is no basis in law to support equating their distinct roles in the sentencing process. It is the judge’s responsibility to impose sentence; likewise, it is the judge’s responsibility, within the applicable legal parameters, to craft a proportionate sentence. If a mandatory minimum regime requires a judge to impose a disproportionate sentence, the regime should be challenged.

Conclusion to Question 1

[84] In my view balancing of all of the factors that are relevant, I have concluded that a fit and proportionate sentence having regard to Mr. Saberi’s circumstances, his guilty plea and the immigration consequences, together with the details of this offence, is one of 6 months less one day and 18 months probation plus, of course, the ancillary orders.

Conclusion to Question 2

[85] In my view to impose the MMP – a one year sentence – double the sentence of incarceration that I deem appropriate in light of the circumstances of this man and the ramifications to him of such a sentence is intolerable and would be shocking to Canadians. The gravity of the offence, while serious, does not mandate a sentence that would be so grossly disproportionate. It is in this case so excessive that it would outrage the standards of decency of Canadians.

[86] It is a cruel and unusual punishment and therefore violates Section 12 of the Charter.

[87] Given my finding, I do not need to deal with the second part of this constitutional challenge inquiry – namely the reasonable hypothetical issue.

[88] The Crown does not seek to defend this MMP under Section 1 of the Charter so therefore the Application is granted and by Section 52(1) of the Charter the MMP contained in s. 172.1(2)(a) is of no force and effect in respect of Mr. Saberi.

The Sentence

[89] Mr. Saberi will be sentenced to 6 months less one day of incarceration: Mr. Saberi has spent 69 days in pretrial custody for which he will receive credit of an additional half day for each day of custody (R. v. Summers, 2014 SCC 26); leaving a remnant of 76 days. That will be followed by 18 months of probation. The terms of his probation will include the mandatory conditions and the following:

(a) He will report within 10 working days of his release by phone to 905-457-6887 between the hours of 8.30 a.m. and 5:00 p.m. and thereafter as directed. (b) He will continue to keep his probation officer apprised of any change of his address or employment. (c) He will take counselling directed at dealing with his anxiety, PTSD, depression, marital issue, and any other issues as directed by his probation officer. (d) He will also attend counselling, preferably through the Manasa Clinic, for sexual offending. (e) He will provide proof of attendance at all counselling sessions.

The Ancillary Orders

[90] Under Section 161 for a period of 5 years Mr. Saberi is prohibited from the following:

(a) Attending at a public swimming area or community centre where persons under the age of sixteen years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground unless in the company of a person over the age of 21 who is aware of this order; (b) Seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; (c) Using a computer system or any telecommunication device within the meaning of subsection 342.1(2) for the purpose of communicating with a person under the age of 16 years unless a member of his family. (d) Under any circumstances, not to use any telecommunication device to access the Internet or other digital network in order to: * Access or possess child pornography or pornography depicting acts that are illegal under the Criminal Code of Canada; * Possess or access any images of children who are, depicted to be or appear to be under the age of 18 years who are naked or who are portrayed in a sexual manner; * Access or participate in chatrooms, bulletin boards or other social media that discuss or promote child exploitation, child pornography, sexualized images of children or other child exploitation material; or * To use or permit to be installed on any device in your possession any program or service designed to allow anonymous use of the internet.

[91] Under Section 490.02 Mr. Saberi will report as directed within 15 days of his release, as a sexual offender and will do that on an annual basis for 20 years.

[92] Under Section 487.051 Mr. Saberi will provide a sample of his bodily substance for admission to the DNA Data Bank; he has been convicted of a primary designated offence.

[93] Since Mr. Saberi is stepping into custody, the Victim Fine Surcharge is waived.

Reasons for judgment released on June 15th, 2021 Signed: Justice K.L. McLeod