Court and Parties

Court: ONTARIO COURT OF JUSTICE Date: 2021-11-01 Location: NEWMARKET

Between: HER MAJESTY THE QUEEN And: ERHARD HANIFFA

Matter: SENTENCING ON COUNT 2

Submissions Heard: July 20, September 17, November 1, 2021. Delivered: November 1, 2021.

Counsel: Ms. Kellie Hutchinson, for the Crown Mr. Boris Bytensky, for the defendant

Before: Kenkel J.

Introduction

[1] This matter returns from the Ontario Court of Appeal for sentencing. Mr. Haniffa was convicted at trial of communicating via telecommunication with a person he believed to be under the age of 16 years for the purpose of facilitating an offence under s 152, contrary to s 172.1(2) of the Criminal Code. His sentence on count 2 was mistakenly attributed to another s 172.1(2) count that had been stayed a year earlier. This offence arose out of the Project Raphael undercover investigation by the York Regional Police aimed at persons seeking to purchase sexual services from juveniles.

[2] The Crown submits that the appropriate sentence on count 2 is a custodial term of 2 years less 1 day. The Crown’s position has increased from their original position in response to the Supreme Court of Canada’s decision in R v Friesen, 2020 SCC 9 (Friesen). The defence submits that a global conditional sentence is available. Given everything that has happened since the offence in March of 2016, a conditional sentence would be sufficient to meet the purpose and principles of sentencing. The defence submits that this court has jurisdiction not just to sentence Mr. Haniffa on count 2, but to re-sentence him on count 3 now that the matter of sentence has been re-opened by the remit of the matter back to this court.

[3] For the reasons that follow, I find that this court has jurisdiction to sentence Mr. Haniffa on count 2 only as directed by the Court of Appeal. On that count I find a conditional sentence of 18 months would now be fit and would best address the purpose and principles of sentence in the present circumstances.

Jurisdiction

[4] The Court of Appeal remitted this matter back to this court for sentencing on count 2 – 2021 ONCA 326 at paras 54, 55. I understand the defence submission, that the sentence on count 3 was also appealed and that sentence was concurrent to the s 172.1 sentence. The Crown repeated their position in this hearing that they were not asking for the sentences to be consecutive. I acknowledge that had both counts been before the court, the reasons below would also have applied to count 3. Without the custodial sentence on count 3, the terms of the conditional sentence would have been much more restrictive, but I agree with the defence that a global conditional sentence would have been the result. Having said that, this court’s jurisdiction is properly limited to the specific count identified by the Court of Appeal.

Legal Changes

[5] There have been two changes to the legal framework in sentencing proceedings under s 172.1(2) since 2018:

• The Superior Court of Justice in Newmarket declared the s 172.1(2) mandatory minimum 1-year sentence of no force and effect under s 52 of the Constitution Act, 1982 c 11 (UK) – R v CDR, 2020 ONSC 645.
• The Ontario Court of Appeal has declared the restriction in s 742.1(c) of no force and effect – R v Sharma, 2020 ONCA 478 (leave granted [2020] SCCA No 311, 14 Jan/21).

[6] The one-year sentence that was meant to be imposed on this count at trial is not mandatory.

The Friesen Case

[7] The Friesen case involved the violent sexual abuse of a four-year-old child by Friesen and the child’s mother. The screams of the child woke another person in the house who rescued the child.

[8] Mr. Friesen pleaded guilty and was sentenced to 6 years. The Manitoba Court of Appeal reduced the sentence to 4½ years. In restoring the sentence imposed at trial, the Supreme Court explained the role of appellate courts in sentence review, and the use of starting points and sentence ranges. The court set out sentencing principles in cases involving sexual offences against children, and it emphasized the profound harm that can result from those offences. Parliament increased the penalties for those offences and that shifts the range of proportionate sentences upwards.

[9] By 2016, the sentence for an offence under s 172.1 had already been increased to a 14-year maximum from the prior 5-year limit. The reasons for sentence in this case specifically cited that increase and many of the principles later set out in Friesen as supporting the range of sentence submitted by the Crown at the time and distinguishing older cases that pre-dated the amendments.

[10] In my view, that increase in the range of sentence was reflected in the many sentences imposed after trial during Project Raphael where first offenders like Mr. Haniffa were given significant jail terms in cases where no young person was involved or harmed. General deterrence and denunciation generally required a custodial sentence proportionate to the immediate and long-term harm to young persons and to the community posed by such activity.

[11] The Friesen decision was released on April 2, 2020, prior to the decision of the Court of Appeal in this matter May 17, 2021. The Court of Appeal did not mention the Friesen case, but did note at paragraph 52 that, “… sentences of less than one year of imprisonment have been imposed in a number of Project Raphael cases…”. They also noted in the same paragraph that the mandatory one year minimum for this offence had been found unconstitutional at the trial level. To be plain, I don’t consider these comments to signal anything with respect to this sentencing beyond the fact that in their view, the one-year term initially imposed was not inevitable and that was one reason why the matter was returned to this court to complete. Absent in the court’s reasons was any mention of Friesen, or the need to double the original sentence.

[12] I agree with the Crown that the sentencing principles set out in Friesen apply to this case, but the Crown’s original submissions and the cases to that point anticipated most of those considerations. I do not find any new circumstance identified by the Supreme Court that would justify the significant change in position submitted by the Crown. In relation to the Friesen factors, I adopt the following observations from my prior reasons:

• “It’s important to begin consideration of sentence by acknowledging the two most important facts – child prostitution is a serious problem in York Region and this is exactly what child prostitution looks like.”
• In offences involving the abuse or potential abuse of a child, denunciation and deterrence are paramount. Courts generally have few options other than imprisonment to achieve those goals in these cases.
• The moral blameworthiness of the accused is higher where the offender believed that the person he was making arrangements with was 15.
• The fact that a police officer opened the door was fortunate for the community but doesn’t diminish Mr. Haniffa’s culpability.
• “I strongly disagree with the submission that those who attempt consensual sex with an underage child working as a prostitute are committing a “less morally reprehensible act” than those attempting to have sex with what the defence termed an, “ordinary” child. At 15 children are not legally capable of consenting to sex. There is no consensual sex with children and the fact that vulnerable children are compelled to work as prostitutes makes them more worthy of protection not less. Anyone who seeks to use children for their own sexual gratification commits a morally reprehensible act regardless of the vulnerability of the child.”
• “I must also reject the submission that the lack of specific evidence that Mr. Haniffa knew of the serious problems associated with child prostitution reduces his blameworthiness. It doesn’t take specific education or experience to understand that a 46-year-old man should not be hiring a 15-year-old girl for sex. It takes no imagination to understand the long-term impact that interaction would have on the child and on the community. As the text discussion showed, Mr. Haniffa simply didn’t care.”

[13] I adopt from Friesen the concern that new technologies are placing young persons at increased risk by providing hidden ways to access children for sexual services. I also note the explanation in that case of the significance of relational harm. Beyond the direct impact on the young person and the community, there is damage to the young person’s relationships with their families and communities. Friesen also reminds us that these offences have a disproportionate impact on girls and young women. As the Supreme Court explained at paragraph 93, the moral culpability of the offender remains high even where the case involves a police sting operation rather than a child victim.

The Offence and Aggravating Factors

[14] Mr. Haniffa responded to an online prostitution advertisement that featured descriptors suggesting that the person placing the ad was at the minimum age permitted to be displayed by the site. Further conversation led to the girl revealing that she was 15 years old. Mr. Haniffa did not terminate the conversation but told her he was “ok” with her age and he negotiated several sexual acts in graphic detail. The “girl” was a York Regional Police officer and Mr. Haniffa was arrested when he attended at the hotel to complete the transaction.

[15] In addition to the circumstances discussed above, the aggravating factors include the fact that the accused believed the arrangements involved a 15 year old girl and the accused’s attendance to complete the transaction which distinguishes this case from those where the accused made arrangements but did not follow through. The broad impact of these offences on young persons and the community is well set out in the Community Impact Statement marked as Exhibit 1 in this proceeding. That is the central reason why the sentence must focus on general deterrence and denunciation.

Mr. Haniffa’s Circumstances

[16] There are several important mitigating factors. Mr. Haniffa had no prior criminal record. He has a steady history of employment. He took counselling regarding his behaviour in this incident. He expressed his remorse in a written allocution and I accept that his remorse is genuine.

[17] Mr. Haniffa’s personal circumstances have changed since he was first sentenced in October of 2018:

• His marriage ended (his behaviour in relation to this offence was one of the factors contributing to the breakup).
• He lost his job in 2020 as a result of this conviction and his inability to travel.
• He lost a $300,000 bonus due to his termination.
• He has now spent 5 days total in pre-trial and post-trial custody.
• He has been on several release orders collectively marked as Exhibit 4 with good conduct for 5 ½ years since the date of the offence.
• His appeal was not heard for 16 months after it was perfected after being consolidated with other matters on a novel legal issue.

[18] I agree with the defence that collateral consequences can be relevant to sentence – R v Suter, 2018 SCC 34 at paras 46-48. A sentence must be tailored to the circumstances of the offender at the time it is imposed. It is appropriate that this court take into account the changes that have happened in the past three years since the matter was last addressed in this court.

[19] Mr. Haniffa has started a new business and he’s also started a new relationship which provides him with ongoing support. He’s obeyed all bail restrictions and he’s not committed any further offences. He continues to express remorse for his actions on the night in question. He has taken positive steps towards rehabilitation and appears to be rebuilding his life despite the many consequences he’s already experienced.

[20] Mr. Haniffa’s case has been delayed several times for reasons not solely attributable to him. While the overall delay does not contravene his right to be tried within a reasonable time, I find the extended time Mr. Haniffa has before the criminal justice system is a relevant factor on sentence.

The COVID Pandemic

[21] At paragraph 54 of their decision, the Court of Appeal court noted the impact of the COVID pandemic on custodial facilities and observed that the accused’s circumstances and the current situation within correctional facilities would be taken into account when this court considered sentence on count 2.

[22] The Central East Correctional Centre has had active COVID cases several times during the pandemic. The facility remains under strict COVID protocols at all times. The provincial correctional facilities have generally been successful at limiting the danger posed by COVID, but that has come at a great cost to inmate and staff morale given all of the extra precautions and restrictions required. The experience at Central East appears to be typical of the situation across the province.

[23] As discussed during submissions, a recent incident in York Region which was widely reported in the media underlines the ongoing danger. In a hockey league for men of Mr. Haniffa’s age and older, 15 fully vaccinated men were infected with COVID. While most are recovering from their symptoms, one died.

[24] Courts always try to impose the least restrictive sentence that meets the applicable principles of sentence. It’s fair to say that during the COVID pandemic, many courts have tried to identify fit sentences for non-violent offenders that do not involve jail even where a custodial term would typically have been imposed for reasons of general deterrence. I agree with the defence that the ongoing COVID pandemic is a relevant circumstance for a person of Mr. Haniffa’s age that is not sufficient itself to warrant the conditional sentence they seek but is one of several factors that support that submission. In my view, that still applies even after vaccinations given the ongoing risk presented by COVID and its dangerous variants.

Sentence

[25] At paragraph 54, the Court of Appeal described the initial 12-month sentence as a “fit” sentence although that must considered along with the comments earlier at paragraph 52 where the court pointed out that sentences of less than one year have also been imposed in Project Raphael cases. Nothing more need be done to specifically deter Mr. Haniffa. The focus of this sentence is on the messages necessary to denounce the offence and to deter others from committing the same serious error.

[26] In the unusual circumstances of this case, I find that a 12-month jail sentence would no longer be necessary or fair given the extended period on bail, the time served, the impact of the COVID pandemic, the numerous serious collateral consequences and the personal factors discussed. I find that a conditional sentence of 18 months on this count is now the least restrictive sentence that would be proportionate to the gravity of the offence and the degree of responsibility of this offender. Service of a conditional sentence would not endanger the safety of the community. At this point a conditional sentence would provide for deterrence and denunciation in a manner that is safe for Mr. Haniffa. He still faces a significant custodial sentence on the other count. The message to the community remains a strong one – even after 5 and a half years of bail supervision and court appearances with some actual custody, a further custodial sentence of 18 months served in the community follows. A conditional sentence would best support Mr. Haniffa’s ongoing rehabilitation and is now proportional to the gravity of the offence and the circumstances of the offender. A conditional sentence may be imposed even where a custodial sentence was imposed on another count – R v Fisher, [2000] OJ No 344 (CA).

[27] On count #2 Mr. Haniffa is sentenced to 18 months in custody to be served in the community by way of a conditional sentence. Having established the form of the sentence and the term, I will invite further submissions from both counsel with respect to the conditions and ancillary orders.

Delivered: November 1, 2021. Justice Joseph F. Kenkel