WARNING

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

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

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

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

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

486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Rasiah, 2021 ONCJ 584

DATE: 2021 06 08

COURT FILE No.: Windsor 19-2085

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SANJAY RASIAH

Before Justice S. Pratt

Heard on

Reasons for Judgment released on 8 June 2021

Andre Telford-Keogh........................................................................ Counsel for the Crown

Patrick Ducharme..................................................................... Counsel for the Defendant

Pratt J.:

[1] On 7 December 2020 I found Sanjay Rasiah (hereinafter “the Offender”) guilty of the offence of Luring contrary to section 172.1 of the Criminal Code. I heard submissions on sentence from both counsel on 4 March 2021. Those submissions were augmented by further written submissions and caselaw.

[2] Additionally, I received the following documents:

(1) A Pre-Sentence Report (PSR) completed 1 March 2021 by Probation and Parole Officer Sarah V. Beattie;

(2) A Victim Impact Statement from J.S. (hereinafter “the Victim”);

(3) A Victim Impact Statement from T.S., the Victim’s mother; and

(4) A bound volume of character reference letters on behalf of the Offender.

[3] Both counsel also filed several cases in support of their positions.

The Facts

[4] My factual findings are set out in detail in my trial decision at [2020] O.J. No. 5835. In summary, I found that the Offender maintained a virtual sexual relationship with the Victim over various electronic communication platforms knowing that she was under 18 years of age. This relationship included sexualized emails and chats, and video calls the parties referred to as “camming” where one or both would masturbate on screen for the other’s enjoyment.

[5] This contact began in May 2016 when the Victim was 14 years old and continued until January 2019, when she was 17 years old. While she initially told him she was 18, she soon admitted her true age. Even after learning just how young the Victim really was, the Offender continued communicating with her for sexual purposes. Rather than end the relationship, he suggested more secure communication platforms.

[6] As required by R. v. Morrison 2019 SCC 15, [2019] 2 S.C.R. 3, I found that he believed the Victim was underage. I rejected the notion that the Offender had taken reasonable steps to determine the Victim’s true age. I found that his conduct facilitated the commission of the offence of making or accessing child pornography as his participation in the relationship led to the Victim continuing to correspond sexually, to “cam” with him, and to send him sexual photos of herself.

[7] As I said in the trial decision at paragraph 116:

By continuing the sexual discussions even after learning the Complainant’s true age, he facilitated her sending him sexual images and messages. He normalized this abnormal conduct. He maintained the reciprocal nature of the relationship by complimenting her and by sending his own photos to her.

The Positions of the Parties

The Crown

[8] The Crown seeks a penitentiary sentence of 2-3 years. It also argues for ancillary orders: DNA, SOIRA registration, and a s. 161 order.

[9] The Crown acknowledges that the Offender did not set out to find and communicate with someone underage. He reasonably concedes that this situation is different from someone who intentionally looks for children online. The other side of that coin, however, is that once he knew her true age, he continued the contact for another 2 ½ years.

[10] Denunciation and deterrence must be the Court’s primary concern. Despite the obvious support the Offender enjoys from his friends and family, the focus must be kept on his culpability and the need to send the message that the victimization of children will not be tolerated. The public needs to know that even with no prior record, a person who engages in such conduct will receive a lengthy sentence of imprisonment.

[11] I should not, the Crown submits, consider the Victim’s participation in the relationship. It was argued by the defence that the Victim could have ended the contact just as easily as the Offender could have. Accepting that point, the Crown says, places responsibility for the offending conduct on the shoulders of the child victim as much as it does the adult offender. It would amount to an error in law to allow that reasoning to factor into the creation of a fit sentence.

[12] Finally, the Crown argues that the lack of remorse shown by the Offender is itself an aggravating factor.

The Defence

[13] Defence counsel argues primarily for a conditional sentence of imprisonment. He points to the significant support the Offender enjoys from his family and friends, and to his prospects for a bright future. The PSR, he says, is largely positive and reflects a good person who made a terrible mistake. While the offence is a serious one, it is not on par with the cases filed by the Crown where physical violence was done to a child victim.

[14] Counsel also urges me to recognize the danger the Offender poses to the Victim going forward. They live approximately 17,000km apart. The chance of them ever meeting is effectively zero.

[15] Further, the Offender is well-educated and has plans for the future. He is a university graduate who was in the midst of a Masters program at the time of his arrest. He has no prior record or prior involvement in the justice system at all.

[16] The mitigating factors present in this case, counsel argues, should lead the Court to the conclusion that a sentence of less than two years is appropriate. That, he says, opens up consideration of a conditional sentence.

[17] Section 742.1(c) prohibits the imposition of a conditional sentence when the offence charged is punishable by either 14 years jail or life imprisonment. Luring is punishable by up to 14 years jail when the Crown, as here, elects to proceed by indictment. That paragraph, however, was found to be unconstitutional in the case of R. v. Sharma (2020 ONCA 478). A potential 14-year maximum sentence is no longer a bar to a conditional sentence.

[18] Section 742.1(b) prohibits the imposition of a conditional sentence when the offence charged has a minimum term of imprisonment. Luring, regardless of Crown election, has a minimum term of imprisonment: six months if by summary conviction and one year if by indictment. Counsel argues that the mandatory minimum sentence in s. 172.1(2) has also been found to be unconstitutional by courts whose decisions are binding on me.

[19] Any statutory impediments to a conditional sentence, therefore and according to counsel, have been removed.

[20] In the alternative, counsel argues for a short jail sentence but recognizes that if I find the mandatory minimum sentence is still applicable, the shortest sentence available is one year in custody.

The Pre-Sentence Report

[21] The PSR is generally positive. It details the Offender’s family history and the support he continues to enjoy. He lives with his parents and brother. He is well-educated and has a wide variety of interests. He has never had any prior brushes with the law. He advised the probation officer that he has been scrupulous in his adherence to bail conditions.

[22] The PSR also speaks of his history of depression and anxiety. It is not surprising to hear that these conditions have worsened since he was charged with the present offence.

[23] Ms. Beattie, the probation officer, felt the Offender was suitable for a period of community supervision but stated “it would be helpful to have very specific conditions that allow for clearly defined expectations.”

[24] One of my reasons for rejecting the Offender’s evidence at trial was that it struck me as particularly self-serving. I find myself drawn to the same conclusion regarding what he told Ms. Beattie and his counsel about his adherence to bail conditions. One of those conditions, I was told, was that he may not use the internet. He told Ms. Beattie that when he goes shopping, he can only use cash as he believes using a credit or debit card would involve accessing the internet.

[25] In submissions, the Offender’s counsel recounted that when the Offender was at his brother’s apartment building, he wouldn’t use the electronic key card as he was worried that would be considered using the internet.

[26] He told Ms. Beattie that he was having difficulty accessing medical services as most providers are only offering virtual appointments and he can’t do that. Then in submissions I was told that he was taking advantage of counselling appointments over Zoom. In her letter, counsellor Jassett Crooks says their appointments have been over the phone. It's not clear where the truth lies. But my concern from the trial, that the Offender was going to great and improbable lengths to portray himself to me in as positive a light as he possibly could, remains.

The Victim Impact Statements

[27] Both the Victim and her mother filed Victim Impact Statements. I will review each in turn.

[28] The Victim’s statement speaks primarily of the outsized role the Offender played in her life. As she said:

…he would be the first person I went to when I had a bad day, or had an argument with a friend or my parents. His advice had greater weight than my parents’, which was quite destructive to me especially given that he clearly did not have my best interests in mind.

[29] She also prioritized the Offender over her school friends, and over her schoolwork as well. Once, when she told him she had an exam coming up and was therefore not going to be as available to him as she usually was, he responded by saying “sometimes I think you hate me”. The effects of this manipulation led to further deterioration in her other relationships and to a decline in her grades. She wrote,

I believed he had my best interests at heart and repeatedly prioritised messaging him and spending time doing sexual things online with him over school commitments.

[30] The school issues brought about by her relationship with the Offender required her to spend “hours and hours of extra study” to catch up to where she should have been. In turn, this further impacted her social relationships. There is no question that her relationship with the Offender cast a very long shadow in her life.

[31] Beyond the observable impacts the offences have had on the Victim, she also bears significant emotional damage. Despite being an exploited child victim, she blames herself. As her statement says:

I resent myself for my part in this, and feel like I lost nearly three years of my teenage years that I should have spent actually focusing on the people around me and expanding my hobbies and interests.

I especially don’t know how the offender faked being interested in a 14 year old’s life…this has made me constantly question my real friendships with people my own age and eroded my trust in my ability to read people and make good friends. It also hurts to look at photos of myself with family and friends from the time – I can’t relate to myself and don’t understand what I was thinking in those years, and it scares me that I was so irrational and risked my future and relationships with the people around me for a stranger I could “cam” with online. While I consented to the sexual things I did at the time, at the end of the day I was underage and, as much as I now wish I could retrospectively withdraw that consent, I can’t.

[32] In hearing the Victim testify and in reading her statement, I can only say the following: she is an intelligent, eloquent young woman with a bright future ahead of her. My hope is that she is able to move past this part of her history and perhaps even find a way to use it as a positive in her life.

[33] The Victim’s mother, T.S., also filed a Victim Impact Statement. Rather than use it to describe the impact the offence has had on her she actively chose not to reveal that information. Instead, she took the opportunity specifically to deny the Offender that insight and, as she said, the power that knowing her innermost thoughts would give him.

The Principles of Sentencing

[34] Section 718 of the Criminal Code and onward sets out the principles that guide a court in fashioning a fit sentence.

[35] Section 718 itself states the following:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[36] Section 718.01 focuses on child abuse offences:

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

[37] This section is a codification of a principle that has been set out clearly in many cases, including the recent Supreme Court of Canada decision in R. v. Friesen [2020] SCC 9 (hereinafter “Friesen”).

[38] Section 718.2 sets out statutorily aggravating circumstances. Among those is the abuse of a person under the age of 18 years, and evidence that the offence had a significant impact on the victim, considering their age and personal circumstances.

[39] That same section also sets out principles of restraint. In addition to parity and totality, a court must not impose custody if less restrictive penalties would be appropriate and must consider all reasonable alternatives to custody. The Supreme Court of Canada considered the imposition of custody in the case of R. v. Gladue 1999 679 (SCC), [1999] 1 S.C.R. 688. At paragraph 36, Justices Cory and Iacobucci stated:

Section 718.2(e) directs a court, in imposing a sentence, to consider all available sanctions other than imprisonment that are reasonable in the circumstances for all offenders, "with particular attention to the circumstances of aboriginal offenders". The broad role of the provision is clear. As a general principle, s. 718.2(e) applies to all offenders, and states that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[40] Fundamentally, pursuant to s. 718.1, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

[41] While denunciation and deterrence must be my primary consideration in this case, I cannot lose sight of the Offender’s prospects for rehabilitation. This is especially so given that he is before me as a first-time offender.

Mitigating Factors

[42] The primary mitigating factor in this case comes from the Offender’s support system. He has the support of his family and friends. He is involved in counselling. He is motivated to find employment and to stay well clear of the justice system in the future. The letters filed on his behalf, from family and associates, all speak of an intelligent, thoughtful person one would not expect to find before a court.

[43] He is also youthful, and as I noted, has no prior criminal record.

[44] His prospects, while no doubt dampened significantly by this charge, remain fairly bright. He appears to want to move forward in a positive way. That is encouraging, and I hope for his success.

Aggravating Factors

[45] The main aggravating factor is his long-term abuse of a child. The Victim was 14 years old when they began communicating. Despite soon learning her real age, he continued their sexual contact and took steps to keep it private. Through his conduct, he taught a teenage girl that it was ok to have virtual sexual contact with an adult. This has had entirely predictable consequences for the Victim. Social isolation, declining school performance, and badly strained family relationships were the fallout from the Offender’s decision to keep in contact with the Victim.

[46] It is aggravating that he maintained this abusive contact for years after learning the Victim’s true age. It is aggravating that he suggested various secure and private communication platforms for them to use in furtherance of this contact.

[47] Additionally, the Victim’s age at the time of the offence and the significant impact the offence has had on her are statutorily aggravating pursuant to s. 718.2.

[48] The Crown has argued that the Offender’s lack of remorse is an aggravating factor. I disagree. Throughout the trial, the Offender maintained that he never knew the Victim’s real age. He felt he’d taken sufficient steps to determine her age and was content with his conclusions. He is entitled to maintain that position now. It would be an error for me to treat any perceived lack of remorse as an aggravating factor (see R. v. Valentini 1999 1885 (ON CA), [1999] 43 O.R. (3d) 178 (C.A.)). A show of remorse is a mitigating factor, but the opposite is not true. His position remains consistent with the position he took at trial: that is, he is innocent of these charges. I cannot, and do not, hold this assertion against him in determining a fit sentence. Likewise, I also take nothing from his statement in the PSR that he is considering an appeal of his conviction. That is his right, and it is irrelevant to me.

Child Sex Offences

[49] Offences dealing with the sexual abuse of children have been the subject of increased comment from both Parliament and the courts. All agree that these offences are gravely serious and must be treated as such. Parliament has enacted several mandatory minimum sentences on these offences, and the courts have repeatedly underscored the impact they have on victims and on society.

[50] Recently, the Supreme Court of Canada considered child sex offences at length in Friesen, supra. Chief Justice Wagner and Justice Rowe underscored the seriousness of these offences and society’s recognition of that seriousness. The Court stated, at paragraphs 42 and 43:

Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. Our society is committed to protecting children and ensuring their rights and interests are respected (Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at para. 67). As Otis J.A. stated in R. v. L. (J.-J.) (1998), 1998 12722 (QC CA), 126 C.C.C. (3d) 235 (Que. C.A.), [TRANSLATION] "the protection of children constitute[s] one of the essential and perennial values" of Canadian society (p. 250). Protecting children from becoming victims of sexual offences is thus vital in a free and democratic society (R. v. Mills, 2019 SCC 22, at para. 23).

This case presents an opportunity for this Court to consider the sentencing principles for sexual offences against children. Sentencing is one of the most important and "most delicate stages of the criminal justice process" (Lacasse, at para. 1). It is at this stage that the judge must weigh the wrongfulness of sexual violence and the harm that it causes and give effect to both in imposing a sentence (C. L. M. Boyle, Sexual Assault (1984), at p. 171). It is important for this Court to provide guidance so that sentencing judges impose sentences that accurately reflect the nature of sexual offences against children and their impact on the victim (see P. Marshall, "Sexual Assault, The Charter and Sentencing Reform" (1988), 63 C.R. (3d) 216, at p. 219). To do otherwise would improperly permit myths that Parliament and this Court have striven to drive out of the law of evidence and substantive criminal law to simply re-emerge at the sentencing stage (R. P. Nadin-Davis, "Making a Silk Purse? Sentencing: The 'New' Sexual Offences" (1983), 32 C.R. (3d) 28, at p. 46). This result could undermine the credibility of the criminal justice system in the eyes of victims, their families, caregivers, and communities, and the public at large (see Lacasse, at para. 3).

[51] While the facts in Friesen dealt with “hands-on” offending, the Court was clear that the underlying principles should also apply to other sexual offences against children. The Court specifically mentioned Luring when making that point.

[52] There is a small number of offences in the Criminal Code that give us all the chance to reflect on who we are as a society. Sexual offences against children are among those offences. Children look to adults for security and comfort. Adults, in turn, must nurture and protect children. When the most vulnerable members of society are not comforted or protected, or taught what is right and what is wrong, but are instead objectified and exploited for sexual pleasure, we have an opportunity as a society to draw a line in the sand. The Supreme Court of Canada has drawn that line in Friesen.

[53] In recognition of Parliament’s increase in the maximum sentences for child sex offences, the Court stated that “upward departure” from earlier precedents may be required. The Court also set out a second reason for such departures at paragraph 110:

A second reason why upward departure from precedents may be required is that courts' understanding of the gravity and harmfulness of sexual offences against children has deepened, as we have sought to explain above. As Pepall J.A. observed in Stuckless (2019), there has been a considerable evolution in Canadian society's understanding of the gravity and harmfulness of these offences (para. 90). Sentences should thus increase "as courts more fully appreciate the damage that sexual exploitation by adults causes to vulnerable, young victims" (Scofield, at para. 62). Courts should accordingly be cautious about relying on precedents that may be "dated" and fail to reflect "society's current awareness of the impact of sexual abuse on children" (R. v. Vautour, 2016 BCCA 497, at para. 52). Even more recent precedents may be treated with caution if they simply follow more dated precedents that inadequately recognize the gravity of sexual violence against children (L.V., at paras. 100-102). Courts are thus justified in departing from precedents in imposing a fit sentence; such precedents should not be seen as imposing a cap on sentences (see Stuckless (2019), at paras. 61-62, per Huscroft J.A.).

[54] Courts must also, when possible, consider the actual harm done to victims of these offences. As the Court stated at paragraph 85:

When possible, courts must consider the actual harm that a specific victim has experienced as a result of the offence. This consequential harm is a key determinant of the gravity of the offence (see M. (C.A.), at para. 80). Direct evidence of actual harm is often available. In particular, victim impact statements, including those presented by parents and caregivers of the child, will usually provide the "best evidence" of the harm that the victim has suffered (R. v. Gabriel (1999), 1999 15050 (ON SC), 137 C.C.C. (3d) 1 (S.C.J. Ont.), at p. 11).

[55] In the present case, I have the benefit of the Victim’s Victim Impact Statement which sets out clearly how she has been harmed by the Offender’s conduct.

[56] Candidly, I could continue quoting salient passages from Friesen. The entire decision encapsulates how courts should view child sex offences. It summarizes our new and growing understanding of the profound harm these offences cause. It reinforces the courts’ responsibility to reflect (though not uncritically, of course) the will of Parliament. It increases sentencing judges’ discretion in determining fit penalties in the cases before them. I suspect it will take its place in Canadian legal history alongside R. v. Darville 1956 463 (SCC), [1956] 25 C.R. 1, R. v. W.(D.) 1991 93 (SCC), [1991] 1 S.C.R. 742,, R. v. Jordan 2016 SCC 27, [2016] S.C.J. No. 27, and R. v. Grant 2009 SCC 32, [2009] 2 S.C.R. 353 as cornerstones of our jurisprudence. That I have not quoted further from the decision does not mean I have not considered and applied all its relevant principles.

[57] Regarding the present case, I have already referred to the harm caused to the Victim. I wish to address one other area that was argued by the Offender’s counsel as it ties into the Supreme Court’s views on the vulnerability of children, particularly in a sexual context.

[58] In submissions, counsel suggested that if the contact between the Offender and Victim was really that negative, she could have stopped it. Counsel acknowledged there was nothing stopping the Offender from ending the contact but contended that applied to the Victim as well. I want to be as clear as possible on this point.

[59] It did not.

[60] There is no burden on an exploited child to take steps to stop their exploitation. At the time of this offence, the Victim was, in law and in fact, a child. She was being abused and manipulated by an adult. The burden was entirely on the Offender to stop what was happening. He made the choice to continue. I put absolutely no responsibility on the Victim for not stopping her own abuse.

Mandatory Minimum Sentences/Conditional Sentences

[61] The Offender argues for a conditional sentence of imprisonment of one year, followed by probation. Section 742.1 sets out the circumstances when a conditional sentence can be imposed. Relevant to the present case are four such circumstances. One, the sentence must be less than two years. Two, a conditional sentence must not endanger the safety of the community and still meet the objectives of ss. 718 – 718.2. Three, the offence for which the sentence is to be imposed must not be punishable by a maximum sentence of 14 years or life in prison. Four, the offence must not have a mandatory minimum sentence.

[62] I will address the first two circumstances later in these reasons.

[63] The third requirement, that the underlying offence not be punishable by 14 years or life in prison, is set out in s. 742.1(c). That paragraph was considered by the Court of Appeal for Ontario in the case of R. v. Sharma, supra. Speaking for the majority, Justice Feldman found that s. 742.1(c) violated ss. 7 and 15 of the Canadian Charter of Rights and Freedoms (hereinafter “the Charter”) and that it was not saved by s. 1. That paragraph is of no force or effect. The fact that Luring, when prosecuted by indictment, is punishable by 14 years in prison no longer precludes the consideration of a conditional sentence.

[64] The fourth requirement cannot be addressed so easily. Section 742.1(b) makes offences punishable by a mandatory minimum sentence ineligible for conditional sentences. When prosecuted by indictment, Luring carries a minimum one-year jail sentence on conviction (see s. 172.1(2)(a)). Like many mandatory sentences, this has come under repeated scrutiny.

[65] In Morrison, supra, Justice Moldaver set aside the Court of Appeal for Ontario’s declaration that s. 172.1(2)(a) violated the Charter. His Honour found that the question was best left to the trial court after the Supreme Court clarified the role of reasonable steps in a luring prosecution. To date, that is the only Supreme Court of Canada authority on the constitutionality of s. 172.1(2)(a).

[66] In the case of R. v. Cowell 2019 ONCA 972, [2019] O.J. No. 6284, the Court of Appeal for Ontario considered the constitutionality of the section. Writing for the majority on that point, Justice Benotto upheld the section. To my knowledge, this is the most recent word from our Court of Appeal on the point.

[67] The Offender’s counsel has referred to two further decision on the issue. They are R. v. Faroughi [2020] O.J. No. 861 and R. v. C.D.R. [2020] O.J. No. 791. Both are from the Superior Court of Justice sitting as trial courts.

[68] In Faroughi, Justice Leibovich struck down s. 172.1(2)(a) as unconstitutional. Justice de Sa did the same in C.D.R. Counsel for the Offender contends that I am bound by these decisions as they are from a higher court. Crown counsel says I am not bound. The point is a crucial one as it will determine if a conditional sentence is legally available in the present case.

Stare Decisis and Precedent

[69] The principles of stare decisis and precedent are foundational to our legal system. Stare decisis stands for the proposition that cases should be decided similarly to past cases so long as they are legally and/or factually similar. Precedent is a related concept that encompasses the idea that lower courts must follow the decisions of higher courts.

[70] To those of us in the lower courts, that may seem constraining. But it’s a good thing. It encourages predictability and stability in the law. Litigants in Sudbury need to know that they will be governed by the same law as litigants in Windsor. Were it not so, instead of a reasonably well-defined three-court hierarchy in Ontario, we would have hundreds of independent kingdoms, all making decisions and interpreting the law as they saw fit in a given case. Our system of justice would be in disarray because no one would know what to expect when they enter a courtroom.

[71] It also allows for incremental change in the law as necessary. When a matter is of sufficient importance to the people of the province or nation, the highest courts can take up the case and move the law forward in a way that sets the ground rules for all to follow.

[72] As important as stare decisis and precedent are, however, they are not sacred and immutable. While it is clear that decisions of the Supreme Court of Canada are binding on all courts in the country, and that decisions of the Court of Appeal for Ontario are binding on all courts in our province (unless overruled by the Supreme Court), the relationship between the province’s two trial courts is not as clear. There are times when decisions of the Superior Court of Justice will be binding on the Ontario Court of Justice and times when they will not. In my view, for the reasons that follow, the present case falls into the second group.

[73] The key distinction is with regard to the notion of a “higher court” and “lower court”. If Court A exercises powers of review over Court B, it is a higher court. This means that Court B will be obliged, pursuant to precedent, to follow Court A’s decisions in cases where that review power is exercised.

[74] But just because a court can bind another court doesn’t mean it always does. The role each court plays at the time of the determination is important.

[75] When a matter is prosecuted summarily, the trial is held in the Ontario Court of Justice. That Court’s decision can be appealed to the Superior Court of Justice, sitting as a Summary Conviction Appeals Court. That decision may then be appealed to the Court of Appeal, and perhaps then to the Supreme Court. In this illustration, the Superior Court of Justice exercises powers of review over the Ontario Court. It is a “higher court” whose decisions are binding on the lower-ranking Ontario Court.

[76] The situation changes when the matter in question is prosecuted by indictment. In cases where a defendant gets to elect their mode of trial, they may elect trial in the Ontario Court of Justice. A trial decision in a case like that is not appealed to the Superior Court. It is appealed directly to the Court of Appeal. Similarly, if a defendant elected trial in the Superior Court, that trial decision would not be appealed to a different Superior Court justice. It would go to the Court of Appeal.

[77] In indictable matters, therefore, the Ontario Court of Justice and the Superior Court of Justice are on equal footing. There is no power of review enjoyed by the Superior Court on indictable matters. The case at bar is an indictable matter.

[78] To put it another way, when trying an indictable offence, the Superior Court exercises no power of review over the Ontario Court. It is not a “higher court” as envisioned by the Supreme Court of Canada at paragraph 26 of R. v. Comeau 2018 SCC 15, [2018] 1 S.C.R. 342.

[79] My colleague Justice McHugh considered this very issue in the case of R. v. Dabrowski [2019] O.J. No. 4946, from paragraph 13 onward:

There can be little controversy that this court, for example, must follow decisions of the Superior Court in summary conviction appeals. In R. v. Smith (Ont. H.C.), 1988 7089 (ON SC), [1988] O.J. No. 1750, Justice Watt (as he then was) stated:

The decision of an "appeal court" binds the determination of an equivalent issue by a "summary conviction court", a trial court, under Part XXIV. In general terms, that is the manner in which the doctrine of precedent is applied within the judicial hierarchy of a province. It is, indeed, the very bedrock upon which the doctrine is constituted. It would require a clear and unequivocal statutory statement to the contrary to displace such a rule.

Concurrent trial jurisdiction

That said, it is not accurate to conclude that every decision of a higher court binds the lower court. It appears that an exception exists where the decision of the higher court is in an instance where that court is acting in a co-ordinate or concurrent capacity, as opposed to an appellate or reviewing capacity. Another way of looking at that situation is that the doctrine is simply inapplicable in that context: see R. v. Unnah, [2007] O.J. No. 101 (Ont. C.J.). In Unnah, Justice Stone declined to consider himself bound to follow a judgment of the Ontario Superior Court where that court was a trial court exercising concurrent jurisdiction.

Similarly, in R. v. Letourneau, 2008 ABPC 192, [2008] A.J. No. 752, the court held:

... when the Queen's Bench Justice is sitting as a trial Judge, the Justice is a court of concurrent jurisdiction and the rule of stare decisis does not apply to such decisions.

[80] In the result, I find I am not bound by either the Faroughi or C.D.R. decisions. But whether I am bound is moot because I am certainly bound by the Court of Appeal in Cowell and by the Supreme Court in Morrison. Both of those cases upheld the constitutionality of s. 172.1(2)(a). The only binding precedent currently in effect maintains the mandatory minimum sentence for the offence of Luring. By operation of s. 742.1(b), a conditional sentence is therefore not available to those convicted of this offence.

[81] If I am wrong in this analysis and a conditional sentence is available, I return to the first two requirements set out in s. 742.1: one, that the sentence be less than two years, and two, that a conditional sentence would not endanger the community and would meet the objectives of sentencing.

[82] Dealing with the first requirement, I find that a sentence of less than two years would be within the range of fit sentences. That pre-condition would be met.

[83] The second requirement would not be met in this case. While a conditional sentence of imprisonment with sufficient restrictions on the Offender could conceivably address the danger he poses to the community, I do not believe it would meet the objectives of sentencing. In my view there are simply too many aggravating factors, outlined above, for a conditional sentence to be appropriate. The Friesen decision only strengthens that view. In a post-Friesen world, it is hard to imagine a case of child sexual abuse that could be adequately addressed by a conditional sentence. I’m not saying it would be impossible in any case, but I am saying it would be unfit in the present case.

[84] Even if a conditional sentence of imprisonment were available, I would not impose one. The facts of this case require a sentence of incarceration.

The Sentence

[85] This is not an easy sentence to compose. I have a gravely serious offence that sexually victimized a child committed by an otherwise law-abiding and productive member of society. While I am required to keep denunciation and deterrence as my primary focus, I cannot ignore the Offender’s prospects for rehabilitation and for being of benefit to society in the future. The sentence I impose must reflect society’s abhorrence for his conduct but not be crushing in its impact.

[86] The principle of restraint reminds me that a custodial sentence should only be as long as needed to meet the objectives of sentencing. In my view, this Offender committing this offence does not require a penitentiary sentence of 2 to 3 years as sought by the Crown. But neither is it a case for the minimum punishment of one year. The circumstances are just too serious.

[87] Balancing all the aggravating and mitigating factors, and considering all relevant principles of sentencing, the Offender will be sentenced as follows:

(1) 18 months custody;

(2) 2 years probation;

(3) There will be an order that he provide his DNA for inclusion in the national DNA databank;

(4) There will be an order under s. 161 of the Criminal Code, referring to paragraphs a – c only, for a period of five years. There will be an exception on each of those paragraphs for the purpose of education or employment, or as necessary to abide by court orders; and

(5) There will be an order for registration under the Sex Offenders Identification Registration Act for a period of 20 years.

[88] Probation conditions, in addition to the statutory conditions, will be as follows:

(1) Report within five working days of your release from custody, and after that at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision;

(2) Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to your probation officer on request;

(3) Do not contact or communicate in any way, directly or indirectly, by any physical, electronic, or other means with J.S. or any member of her immediate family;

(4) Do not be within 100m of any place where you know J.S. or any member of her immediate family to live, work, go to school, frequent, or any place you know the persons to be except for required court attendances;

(5) Do not be in the company of or communicate directly or indirectly, by any physical, electronic or other means, with females under the age of 16 years, except for members of your family, unless in the presence of another person approved of in writing and in advance by the probation officer;

(6) Do not possess any weapons as defined by the Criminal Code;

(7) Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer;

[89] These charges pre-date the Victim Surcharge amendments so there are no surcharges payable.

[90] My hope is that all parties in this case can move forward in a positive way. Both the Offender and the Victim are intelligent, thoughtful people with bright futures. I wish the best for all involved.

Released: 8 June 2021

Signed: Justice Scott G. Pratt