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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court File and Parties
DATE: October 17, 2022 COURT FILE NO.: 20-0523 ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
-AND-
BRIAN DAWSON
Before: Justice M. G. March
Submissions heard on: January 17, March 3, May 11, 2022 and written submissions filed on March 25, May 10 & 23, 2022
Ruling on: s. 12 Charter challenge to the mandatory minimum sentence of six months jail for commission of an offence under s. 286.1(2) of the Criminal Code
Written reasons released on: October 17, 2022
Counsel: Caitlin Downing, Counsel for the Provincial Crown Paul Lewandowski, Counsel for Brian Dawson
March, M.G., J. :
Introduction
[1] On September 1, 2021, Brian Dawson (“Dawson”), with the assistance of his defence counsel, brought an application seeking a declaration that the mandatory minimum sentence (“MMS”) of 6 months jail required to be imposed under section 286.1(2) of the Criminal Code (“the Code ”) was cruel and unusual punishment, and therefore constituted a breach of section 12 of the Canadian Charter of Rights and Freedoms (“the Charter ”).
[2] The breach, the defence argued, was not saved by section 1 of the Charter as a reasonable limit demonstrably justifiable in a free and democratic society.
[3] The defence thereby contended that section 286.1(2) of the Code was consequently of no force and effect.
[4] No testimonial evidence was called on the hearing of the application by either Crown or defence counsel. Instead, on consent, counsel filed as an exhibit to the hearing of the application, a photocopy an envelope and the letter it contained, the contents of which made out the offence committed by Dawson, in that he communicated for the purpose of obtaining for consideration the sexual services of a person under the age of 18 years contrary to section 286.1(2) of the Code .
[5] Substantial oral and written submissions were made by counsel over the course of several months.
The Relevant Facts
[6] The essential background for framing the issues for decision arising upon this application was succinctly set out by counsel for the defence in his factum.
[7] On February 24, 2020, Dawson was working as a taxi driver in the Town of Renfrew.
[8] As part of his duties, he drove the complainant, a 17-year-old female, and her boyfriend, then in his early 20’s, to their residence.
[9] Upon arrival, Dawson assisted the young couple by bringing bags of groceries into their apartment. He left without incident.
[10] In March 2020, Dawson delivered a letter to their address. Printed on the envelope was the following:
“For 17 + 20 YEARS OLD EYES ONLY!!!”.
[11] Dawson enclosed within it a $50 Canadian bill, as well as a note for the young couple, which read as follows:
Hi attractive young couple (20 + 17 I think). I’m the guy who helped carry your bags and was invited into your beautiful place and saw your bedroom’s huge mattress. Knew that you two would be perfect! Have had the pleasures and great experiences in helping out seven different young couples in town with great rewards (financial) with having sex parties with them for an hour or so at my place!! #1 They get drunk first to loosen up, then visit here, get naked, start making out. Join them and perform oral on both and both perform oral on me and each other. After a while, he goes into her and she orals me, then go deep inside her and she orals him. Then do their fave positions! After an hour, smoked joint, call, get dressed, kiss goodbye, was all smiles + intense orgasms for all! Or sexually please one of them but not the other and one, not the other sexually pleases me + the other. Threesomes are ten times better than twosomes. Two cocks and one pussy is the best ratio for all. #2 Always give 250 for couple but you two are soooo hottt will guarantee 300 with chance for more for #1, less for #2. Lots of tongue at all times! One time offer. Have never been turned down, don’t be first and only! Also one of my 16-year-olds moved with her guy to Ottawa. She cleaned my small place every two weeks for an hour for 60. Will give you 80. Will leave and return to pay. Only one of you tho. Came back one time and her and her boy were naked, not cleaning, so just one of you! Supply vacuum, mop, etc. Need cleaner ASAP! If both of you are too shy, too close minded and have lots to pay for food, clothes, dog food + don’t want to help, could you at least (gave you 50 already) text, yes or no, if you have hot young friends, girl or boy, solo or couple. Will give them (couple) 250 only, less for solo! You’re only couple guaranteed 300! If it works out between your friends, will give you 40 for solo, + 60 for couple for your help!
Always text between 11 - 1 at night only! NO phone calls. Always keep this between the three of us only, always! xxx-xxxx ( Actual tel. no. redacted ) Can’t wait to see you soon!!! Need cleaner ASAP.
[12] The back of the envelope read as follows:
FOR HANDSOME YOUNG COUPLES EYES ONLY (17 + 20) PRIVATE + CONFIDENTIAL
[13] Shortly following delivery of the letter, Dawson was identified by police and arrested. Upon being interviewed by police, he gave an inculpatory statement and expressed remorse.
[14] On June 11, 2021, Dawson entered a plea of guilty before me. I ordered the preparation of a Presentence Report (“PSR”) and a Sexual Behaviours Assessment (“SBA”).
PSR (August 18, 2021)
[15] The author of the PSR indicated that Dawson was born and raised in Toronto. He had a difficult upbringing. His earliest childhood memories were mostly negative. They related to an abusive brother and a father for whom Dawson held a general sense of distrust.
[16] From his early youth, Dawson suffered from mental health issues including serious bouts of depression.
[17] Dawson attributed the marked commencement of his mental health problems to failing grade 9. In that year, he made his first suicide attempt and was hospitalized at a youth psychiatric facility.
[18] Dawson did go on to obtain a high school diploma through an adult education centre; however, his attempts to successfully complete college did not come to fruition.
[19] Through the latter part of the 80’s and early 90’s, Dawson combatted alcoholism. Following a stay at a residential treatment program, he has remained sober for the most part.
[20] Dawson was married for 16 years. His wife and he had a son. Dawson remained active in his son’s life following the divorce with his partner.
[21] At 26 years of age, Dawson’s son died of an opioid overdose. He left behind his then seven year old daughter. Shortly thereafter, this child’s mother died of a drug overdose as well.
[22] In 2002, Dawson made a second attempt at suicide, following which he became entitled to benefits under the Ontario Disability Support Plan.
[23] Notwithstanding, Dawson continued to work. He held down a job as a cab driver for 15 years. This employment ended in March 2020 when he was charged by police.
[24] In total, Dawson has made four attempts at taking his own life. He reported that he has been diagnosed with clinical depression, bipolar disorder and obsessive compulsive disorder.
[25] Dawson attended, following being charged by police, a program called “Choice”, which offers bereavement counselling.
[26] The author of the PSR, in commenting upon Dawson’s perspective upon the offence he committed, wrote:
The subject expressed a great deal of remorse for his actions. He was very apologetic and acknowledged the harm done to the victims.
[27] The author of the PSR considered Dawson to be a suitable candidate for community supervision. She summarized:
The subject presents with some significant mental health concerns. He reported to be taking medication as prescribed, but he has not been involved with a mental health professional in over fifteen years. To his credit, Mr. Dawson followed through with the second referral to Mental Health Services of Renfrew County. He has been referred for an ongoing mental health case manager and once established, the support would no doubt benefit Mr. Dawson moving forward. In addition to this, following any recommendations for treatment that come from Dr. Booth’s assessment, Mr. Dawson is not involved with any professional support at this time and is very limited in the number of personal supports that he has. He admitted to spending most of his time alone and bottling his feelings.
SBA (August 17, 2021)
[28] The SBA was prepared by Dr. Brad Booth, a forensic psychiatrist with the Royal Ottawa Hospital.
[29] Dr. Booth spent some four hours and 20 minutes during a clinical interview with Dawson on August 9, 2021. Amongst other things, the SBA chronicled his very difficult upbringing.
[30] In terms of psychiatric treatment, Dawson was hospitalized twice, once at the age of 15 at the Clark Institute in Toronto, and on another occasion as a 39-year-old, six months after his wife and he divorced, and he had attempted suicide.
[31] In the last decade or so however, Dawson has been treated exclusively by his family physician for his mental health. He has been prescribed Effexor, an antidepressant, at a dose of 225 mg daily. He also takes Seroquel to assist him with sleeping.
[32] Dr. Booth diagnosed Dawson, following a battery of tests, with the following:
a) persistent depressive disorder (dysthymia) with recurrent major depressive episodes-current mild to moderate depression with anxious distress and panic attacks,
b) premorbid social anxiety disorder,
c) likely generalized anxiety disorder traits, although minimizes,
d) rule out obstructive sleep apnea-hypopnea,
e) likely childhood ADHD with residual adult symptoms,
f) cannabis use versus disorder, mild,
g) alcohol use disorder, severe, in sustained remission,
h) unresolved grief, and
i) possible neurocognitive disorder, mild.
[33] In his extensive written report, Dr. Booth observed that:
Dawson has genetic loading for alcohol issues, depression, anxiety and dementia. He may have had some mild ADHD impairing his behavioural control and school abilities.
The index offence appears very uncharacteristic of Mr. Dawson’s life history. I suspect that with his developing depression, escalating anxiety in the context of the stress from a decreased income and limited social contact that he started to cope through smoking cannabis and using extra doses of his sedative, Seroquel.
With this, he likely reached out to the couple in a self-induced disinhibited state. There does not appear to be any sexual or paraphilic disorder at play. This testing does suggest a possible mild neurocognitive disorder (i.e. dementia) in the early stages. This could also have contributed, although as his testing results were not severely impaired, likely was less relevant than the issues noted above
[34] As far as Dawson’s future risk for reoffending is concerned, Dr. Booth opined that:
Unfortunately, there are no validated risk assessment tools for individuals with Mr. Dawson’s offences. From a clinical perspective, as noted above, these offences appear very atypical given his history and likely represent disinhibited behaviour due to self-induced intoxication with his Seroquel and cannabis. His Seroquel and cannabis abuse likely flowed from his underlying depression, anxiety, unresolved grief and increased stressors. He does not appear to pose any significant risk to the couple or underaged individuals. Further, there is no evidence that he would be of any likelihood of having future behaviour of this type. On the whole, he would pose an extremely low risk of future offending.
[35] In sum, it is abundantly clear that Dawson has had a long-standing psychiatric history. To illustrate this fact, his counsel was able to provide the court with a very dated report of Dr. J.N. Gray of the Clarke Institute of Psychiatry from June 22, 1972. Dawson’s diagnoses then included:
a) anxiety neurosis,
b) phobic neurosis,
c) depressive neurosis,
d) schizoid personality, and
e) schizophrenia.
The Law
[36] Section 286.1(2) of the Code reads as follows:
Everyone who, in any place , obtains for consideration, or communicates with anyone for the purpose of obtaining for consideration, the sexual services of a person under the age of 18 years, is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of:
(a) for a first offence, six months ; and
(b) for each subsequent offence, one year.
[37] Section 12 of the Charter provides:
Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.
[38] For a punishment to meet the constitutional threshold of being “cruel and unusual”, the sentence to be imposed as a minimum must be “more than excessive”. It must surpass a “high bar”. It must be so excessive as to outrage the standards of decency in Canadian society. It must take on a quality of being “abhorrent and intolerable” to society. (see R. v. Lloyd 2016 SCC 13 at paras. 24)
[39] A successful challenge under section 12 of the Charter will demonstrate on a balance of probabilities that the minimum punishment prescribed will be a grossly disproportionate sanction upon the offender, or alternatively, upon others in its reasonably foreseeable application. (see Lloyd at para. 23)
[40] Where a constitutional challenge is made, a court of competent jurisdiction must engage in a two-step analysis. First, it must look at what would be a fit sentence having regard to the principles and purposes of sentencing set out in sections 718 to 718.2 of the Code. Second, it must determine whether such a sentence would be grossly disproportionate for the particular offender before the court, or if not for him or her, to another offender based upon a reasonable hypothetical posited by the challenger.
[41] When considering a reasonable hypothetical, the court ruling on the section 12 Charter challenge cannot resort to a situation which is:
a) “remote”,
b) “marginally imaginable as a live possibility”, or
c) “far-fetched”. (See Lloyd at para. 102)
[42] If the court finds that the punishment to be meted out as a minimum sentence would constitute cruel and unusual punishment, the Crown still has an opportunity to attempt to persuade the court that the MMS is saved by section 1 of the Charter. In other words, the Crown must show that the infringement of the section 12 Charter right is a “reasonable [limit] prescribed by law as can be demonstrably justified in a free and democratic society”.
The Issues
What is a fit sentence in the circumstances of the offence committed by Dawson and in his personal circumstances?
[43] With the release of R. v. Friesen 2020 SCC 9, the Supreme Court of Canada (the “SCC”) heralded the dawn of a new era for the approach to be taken where sexual crimes are committed upon children.
[44] At paragraph five of Friesen, Wagner C.J. and Rowe J., speaking for a unanimous nine-member panel of the SCC, stated:
“[W]e send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching, ongoing harm that it causes to children, families and society at large.
[45] Further at paragraph 56, the SCC directed that:
[An] emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotional and psychological harm that, as this Court held in R. v. McCraw (1991) 3 S.C.R. 72, “may often be more pervasive and permanent in its effect than any physical harm”.
[46] The SCC went on to explain the inherent wrongfulness of exploiting children’s weaker position in society at paragraphs 65 & 68. The SCC held:
The protection of children is one of the most fundamental values of Canadian society. Sexual violence against children is especially wrongful because it turns this value on its head. In reforming the legislative scheme governing sexual offences against children, Parliament recognized that children, like adults, deserve to be treated with equal respect and dignity. Yet instead of relating to children as equal persons whose rights and interests must be respected, offenders treat children as sexual objects whose vulnerability can be exploited by more powerful adults. There is an innate power imbalance between children and adults that enables adults to violently victimize them. Because children are vulnerable populations, they are disproportionately the victims of sexual crimes. In 2012, 55% of victims of police-reported sexual offences were children or youth under the age of 18. Sexual violence also has a disproportionate impact on girls and young women. Like the sexual assault of adults, sexual violence against children is highly gendered. The “intersecting inequalities of being young and female” does make girls and young women especially vulnerable to sexual violence. In 2012, 81% of child and youth victims of police-reported sexual offences were female and 97% of persons accused of such offences were male. Sexual violence against children thus perpetuates disadvantages and undermines gender equality because girls and young women must disproportionately face the profound, physical, emotional, psychological, and economic costs of the sexual violence. Girls and young women are thus “still punished for being female” as a result of being disproportionately subjected to sexual violence.
[47] I must, of course, bear in mind these dictates of the SCC when I settle upon a sentence for Dawson that accords with the fundamental purposes and principles of sentencing set out in sections 718 to 718.2 of the Code.
[48] I fully appreciate as well that Dawson only propositioned the young woman who he believed to be 17 years of age, and the young man he believed to be 20. No actual sexual contact occurred between Dawson and his targeted individuals.
[49] However, Dawson’s offer to engage in “threesomes” with them is, in my view, only somewhat less reprehensible than had they accepted his offer, as he wished, and had he gone on to touch them. A truly indecent proposal was made. It assumed all the trappings of ‘luring’. Indeed, he made a $50 down payment to increase the young couple’s temptation. He wanted to meet other young people they knew. I can safely infer that the couple were shocked, horrified and victimized upon reading Dawson’s letter. Fortunately, they immediately called police to report his conduct.
[50] At paragraph 93 and 94 of Friesen, Wagner C.J and Rowe J. clarified:
Child luring may be committed in two ways: the offender is actually communicating with an underage person, or the offender believes the person he is communicating with is under age even though this is not in fact the case . . . To be clear, child luring should never be viewed as a victimless crime.
[51] As a primary consideration, by virtue of section 718.01 of the Code, I must give effect to the objectives of denunciation and deterrence in settling upon an appropriate disposition for Dawson.
[52] At paragraph 105 of Friesen, the SCC wrote:
Parliament’s choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause. The sentencing objective of denunciation embodies the communicative and educative role of law. It reflects the fact that Canadian criminal law is a “system of values”. A sentence that expresses denunciation thus condemns the offender “for encroaching on our society’s basic code of values”; it “instills the basic set of communal values shared by all Canadians”. The protection of children is one of the most basic values of Canadian society.
[53] In a Technical Paper prepared by the Department of Justice Canada in 2014, the authors expounded on the legislative intent behind Bill C-36, the precursor to the enactment of section 286.1 of the Code. They stated:
Bill C-36 criminalizes, for the first time in Canadian criminal law, the purchase of sexual services. The new offence makes prostitution itself an illegal practice; every time prostitution takes place, regardless of venue, an offence is committed. In criminalizing those who create the demand for prostitution, Bill C-36 furthers its overall objective to reduce that demand, with a view to ultimately abolishing prostitution to the greatest extent possible.
Bill C-36’s new purchasing offence prohibits obtaining sexual services for consideration, or communicating in any place for that purpose (section 286.1). This offence imposes maximum penalties of five years imprisonment where prosecuted by indictment and 18 months where prosecuted by summary conviction and escalating mandatory minimum fines. Purchasing sexual services from a person under the age of 18 is an even more serious offence . Although already prohibited in existing criminal law, Bill C-36 moves this offence to Part VIII of the Criminal Code, along with most other prostitution offences, and increases the maximum penalty from 5 to 10 years imprisonment and the applicable mandatory minimum penalty for subsequent offence from six months to one year.
The purchasing offence is carefully tailored to its objective of reducing the demand for sexual services. It is based on the existing offence that prohibits obtaining sexual services for consideration from persons under the age of 18 years and accordingly, jurisprudence interpreting that offence assists in defining the scope of the new offence. Jurisprudence that interprets the meaning of “prostitution” is also instructive, given that “prostitution” is defined as the exchange of sexual services for payment.
[54] In commenting upon the objectives Bill C-36 embodies, the authors identified a number of realities surrounding prostitution as follows:
a) The majority of those who sell their own sexual services are women and girls.
b) Entry into prostitution and remaining in it are both influenced by a variety of socio-economic factors, such as poverty, youth, lack of education, child sexual abuse and other forms of child abuse, and drug addiction.
c) Prostitution is an extremely dangerous activity that poses a risk of violence and psychological harm to those subjected to it, regardless of the venue in which it takes place, both from purchasers of sexual services and from third parties.
d) Prostitution reinforces gender inequalities in society at large by normalizing the treatment of primarily women’s bodies as commodities to be bought and sold. In this regard, prostitution harms everyone in society by sending the message that sexual acts can be bought by those with money and power. Prostitution allows men, who are primarily the purchasers of sexual services, paid access to female bodies, thereby demeaning and degrading the human dignity of all women and girls by entrenching a clearly gendered practice in Canadian society.
e) Prostitution also negatively impacts the communities in which it takes place through a number of factors, including: . . . the risk of being drawn into a life of exploitation.
f) The purchase of sexual services creates the demand for prostitution, which maintains and furthers pre-existing power imbalances, and ensures that vulnerable persons remain subjected to it.
[55] Upon consideration of the above factors, which I accept as valid and pressing societal concerns to be borne in mind, I must pay close heed to the principles of denunciation and deterrence in passing sentence upon Dawson.
[56] Under section 718.2(b) of the Code, I must also give effect, of course, to the parity principle as well. That is to say, “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.
[57] Recently, the Québec Court of Appeal in Procureur general du Quebec c. C.M. 2021 QCCA 543 dealt with an offender who responded to an ad posted as part of an undercover police sting. The officer held out that he could make available two16-year-old girls for sex.
[58] Mistakenly believing that a 16-year-old could consent to sex for consideration, the offender arranged for intercourse with the girls on the precondition as well that a condom would have to be used.
[59] The offender ultimately pleaded guilty to an offence under section 286.1(2) of the Code.
[60] An SBA was prepared for the benefit of the offender. It determined that the offender was a at a low risk of reoffending.
[61] The offender had 21 years of former service with the Canadian Armed Forces. At the time the appeal was heard, the offender had commenced a new career where he was considered a valuable employee.
[62] As aggravating features of the offence, the Québec Court of Appeal identified that:
a) his intended victims were under the age of 18 years,
b) the arrangement for the provision of sexual services was made through a third-party, a ‘pimp’, and
c) the ‘sought after’ contact with the girls, the offender understood, would involve full sexual relations.
[63] As mitigating factors, the Court listed:
a) the entry of a guilty plea by the offender,
b) cooperation by him with the authorities,
c) the lack of a criminal record,
d) serious therapeutic efforts undertaken and completed by the offender,
e) his value to his current employer, who considered him to be an asset to the corporation,
f) a desire to make amends for the wrongfulness of his conduct,
g) the support of his spouse, and
h) the indirect consequences for himself and his family arising from the prosecution of the offence.
[64] I find that C.M. is particularly instructive and analogous. Many of its features are similar to the aggravating and mitigating factors present in Dawson’s case.
[65] In C.M. , the Québec Court of Appeal overturned the sentencing judge’s decision holding that section 286.1(2) of the Code was of no force and effect as a violation of section 12 of the Charter. The Court would have substituted a sentence of six months imprisonment in its stead; however, the offender had already served the 90 day sentence imposed at first instance by the time the appeal was heard .
[66] I would add that there are a few particularly aggravating factors in Dawson’s case, which were lacking in C.M . Firstly, as a brief guest in the home of the young couple while assisting them to bring in their groceries from his taxi, Dawson likely noticed that they were not well-off. He commented in his letter on their need to pay for “food, clothes and dog food”. He specifically looked to exploit their vulnerability by offering them a means to acquire quick cash.
[67] Secondly, the letter which contained Dawson’s lewd offer clearly required some planning and premeditation on his part. He calculated how he may entice the young couple to partake in sexual acts with him for financial reward.
[68] Thirdly, Dawson cast his net wide attempting to attract the couple’s friends and acquaintances as well.
[69] Post- Friesen, the Crown referred me to one other authority in addition to C.M. , namely R. v. Aguilar 2021 ONCJ 87, where the MMS of six months jail was handed down, in that case, concurrently on the section 286.1(2) offence along with one of luring for which a longer period of imprisonment was imposed. In Aguilar, the sentencing judge specifically referred to the language contained in Friesen and the need for an “upward departure from prior precedent and sentencing ranges”.
[70] Even for a mentally frail, first-time offender such as Dawson, who:
a) pleaded guilty,
b) is at a low risk to reoffend, and
c) has genuinely expressed remorse for his crime,
I find that the principles of deterrence and denunciation nevertheless cry out for the imposition of a custodial sentence in the range of 6 to 9 months. I cannot lose sight of the fact that Dawson attempted to solicit the performance of sexual services from one known person under the age of 18 years, and potentially other underage individuals as well. He did so in a premeditated and calculated fashion.
Would the imposition of a 6 to 9 month jail sentence be “grossly disproportionate” for Dawson?
[71] Dawson’s counsel submitted that a custodial sentence of any degree would be crushing for his client. It would exacerbate Dawson’s social anxiety and general anxiety disorder.
[72] Defence counsel further contended that the idea that Dawson, a man pathologically stricken with social anxiety, would be subjected to a significant jail term on account of the letter sent so easily rebuffed, is abhorrent.
[73] In essence, his lawyer argued that incarcerating Dawson would be an outrage to the community’s standards of decency.
[74] I disagree.
[75] Dawson committed a serious crime. Parliament chose to make section 286.1(2) of the Code a purely indictable offence.
[76] Through the enactment of an MMS, Parliament must have intended to rule out the possibility of a conditional sentence, which Dawson’s counsel urged me to consider, for having committed the subject offence.
[77] One must not lose sight of what Dawson did. He specifically targeted his victim. He attempted to take advantage of a 17-year-old young woman, who in the eyes of the law, is a child and deserves its full protection from acts of prostitution.
[78] Fortunately, she resisted the temptation to acquiesce to what Dawson was seeking, but what if she had not? The risk to which Dawson exposed her is, in my view, the very societal evil Parliament is attempting to proscribe.
[79] The potential for harm and life altering consequences for the victim must be punished.
[80] Viewed in this light, Dawson’s moral blameworthiness is high.
[81] As the Court of Appeal for Ontario reminded sentencing judges in R. v. T.J. 2021 ONCA 392, where the offence involves the abuse of a person under the age of 18 years, denunciation and deterrence are paramount. To reflect this reality, the Court stated:
[27] The provisions of s. 718.01 not only mean that denunciation and deterrence must be the primary objectives of the sentence, but that “it is no longer open to a sentencing judge to elevate other sentencing objectives, for example rehabilitation, to equivalent or greater priority than denunciation and deterrence in determining a proportionate sentence”. These other objectives may be given significant weight, but not priority or equivalency: Lis, at paras. 47-48, 53; Friesen, at paras. 101-4.
[28] As the court in Friesen concluded, prioritizing the objectives of denunciation and deterrence “confirms the need for courts to impose more severe sanctions for sexual offences against children”: at para. 101. That need is directly related to the form of sanction required, as separation from society reinforces and gives practical effect to denunciation and deterrence: at para. 103
[82] Clearly, the rule, and not the exception, emerging out of Friesen is that sexual offenders who attempt to or succeed in targeting, exploiting and abusing children should expect to go to jail.
[83] Although incarceration will have a particularly acute effect upon Dawson given his pre-existing mental condition, I cannot find on a balance of probabilities that a six-month mandatory minimum jail sentence would be grossly disproportionate in the circumstances of the offence he committed and in his personal circumstances.
[84] I am mindful of the fact as well that courts can make recommendations as to where offenders ought to serve their sentences.
Would the MMS of six months jail be grossly disproportionate if imposed upon another offender based on the reasonable hypotheticals suggested by Dawson’s counsel?
[85] Counsel for Dawson submitted that the offender before me represented a reasonable example of the hypothetical man caught in the pillory of section 286.1(2). The crime he committed was inchoate. Dawson did not actually engage in sexual activity upon payment to a person under the age of 18 years, he merely made the offer.
[86] Counsel for Dawson placed heavy reliance on the decision of R. v. C.D.R. 2020 ONSC 645.
[87] In C.D.R., de Sa J. referenced what his Honour considered to be two reasonable hypotheticals as follows:
[18] The Applicant also relies on the hypotheticals advanced in the cases of R. v. Badali , 2016 ONSC 788 and R. v. Lalonde , 2017 ONSC 2181.
[19] In Badali, the Court considered the constitutionality of section 212(4) of the Criminal Code [the predecessor of s. 286.1 ] and other related provisions. The trial judge considered the hypothetical of a young male paying for sexual services, such as a kiss, with a female person who is under the age of 18 years of age. The judge in that case noted that an instance such as this attracting the sentence imposed by the mandatory minimum would seem to be beyond the intent of the drafters of the legislation, and ultimately declared both s. 212(2) and s. 212(4) to be unconstitutional and of no force and effect.
[20] In the decision of R. v. Lalonde, the Court also found s. 212(4) to be unconstitutional and of no force and effect. Agreeing with the reasoning of the Court in Badali, the Court also posited the following hypothetical scenario: a young 18-year-old asks a 17-year-old classmate to let him see her breasts in return for $25. The offence is made out even if the girl refuses the request. But whether she refuses or acquiesces to the request, the young man faces a minimum of 6 months in prison. The Court found this to be a grossly disproportionate sentence.
[88] Both Badali and Lalonde dealt with the predecessor to section 286.1(2) of the Code. I note as well that both of these two cases were decided before amendments were made to the Code to increase the maximum available sentences for the communication for sexual service type offences.
[89] Of course, C.D.R., Badali and Lalonde were also all decided pre- Friesen.
[90] In Friesen, Wagner C.J. and Rowe J. pointed out:
[96] Maximum sentences help determine the gravity of the offence and thus the proportionate sentence. The gravity of the offence includes both subjective gravity, namely the circumstances that surround the commission of the offence, and objective gravity ( L.M. , at paras. 24-25). The maximum sentence the Criminal Code provides for offences determines objective gravity by indicating the “relative severity of each crime” (M. (C.A.), at para. 36; see also H. Parent and J. Desrosiers, Traité de droit criminel, t. III, La peine (2nd ed. 2016), at pp. 51-52). Maximum penalties are one of Parliament’s principal tools to determine the gravity of the offence (C. C. Ruby et al., Sentencing (9th ed. 2017), at § 2.18; R. v. Sanatkar (1981), 64 C.C.C. (2d) 325 (Ont. C.A.), at p. 327; Hajar, at para. 75).
[97] Accordingly, a decision by Parliament to increase maximum sentences for certain offences shows that Parliament “wanted such offences to be punished more harshly” (Lacasse, at para. 7). An increase in the maximum sentence should thus be understood as shifting the distribution of proportionate sentences for an offence.
[91] Wagner C.J. and Rowe J. went on to explain:
[99] These successive increases in maximum sentences indicate Parliament’s determination that sexual offences against children are to be treated as more grave than they had been in the past. As Kasirer J.A. (as he then was) reasoned in Rayo, the legislative choice to increase the maximum sentence for child luring [translation] “must be understood as a sign of the gravity of this crime in the eyes of Parliament” (para. 125). We agree with Pepall J.A.’s conclusion in Stuckless (2019) that Parliament’s legislative initiatives thus give effect to society’s increased understanding of the gravity of sexual offences and their impact on children (paras. 90, 103 and 112).
[100] To respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. As Kasirer J.A. recognized in Rayo in the context of the offence of child luring, Parliament’s view of the increased gravity of the offence as reflected in the increase in maximum sentences should be reflected in [translation] “toughened sanctions” (para. 175; see also Woodward, at para. 58). Sentencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences.
[92] De Sa J. held in C.D.R. at para. 30 that the scenarios outlined in Badali and Lalonde were
“ . . . within the reasonably foreseeable reach of the law. R. v. Nur , 2015 SCC 15 , [2015] 1 S.C.R. 773, para. 62. And if the Crown did choose to proceed with charges similar to the hypotheticals advanced here, and the matters came before a judge on a plea or after trial, that judge would be obliged to impose the statutory minimum. While the Crown retains a discretion to proceed, the judge would not. The resulting sentence (whether it be 1 year or even 6 months) would clearly be grossly disproportionate in the circumstances. See also R. v. J.L.M. , 2017 BCCA 258.”
[93] At para. 39, His Honour concluded:
Similarly, on the basis of the hypotheticals advanced, namely the examples referenced from R. v. Badali and R. v. Lalonde, I am satisfied that the 6-month mandatory minimum stipulated in section 286.1(2) (a) of the Criminal Code is also unconstitutional. As evident from the decision in Cowell , in most cases a 6-month sentence would be low for offences captured by 286.1(2). However, there are clearly still conceivable situations where a 6-month jail sentence would be grossly disproportionate. Again, I rely primarily on the hypothetical advanced by the Applicant where a young 18-year-old asks a 17-year-old to let him see her breasts in exchange for $25. I disagree with the Crown that the 17-year-old girl showing her breasts for money would not amount to the provision of a sexual service.
[94] With the greatest of respect, I do not see that a kiss, or a brief revelation of bare breasts by a 17 year old female, constitute the performance of a sexual service in the context of s. 286.1(2) of the Code. The former can be a greeting or a mere sign of affection depending on the placement of the kiss. The latter is an act of ‘flashing’ or ‘stripping’. (see R. v. Saftu 2013 ONSC 562 at para. 12).
[95] In any event, I hasten to point out that in C.M. , the Québec Court of Appeal considered C.D.R. as well.
[96] C.M. has not as yet been translated into English. However, upon my reading of it in its original French, I am persuaded by the reasoning employed by the Québec Court of Appeal. In referring to the ‘flashing’ or ‘stripping’ hypothetical, as set out in C.D.R. and Lalonde, the Court stated:
[104] Or, dans l’évaluation de scénarios raisonnablement prévisibles, les hypothèses fantaisistes, invraisemblables et n’ayant qu’un faible rapport avec le dossier particulier sous étude doivent en principe être écartées ] .
[105] À première vue, ces scénarios n’ont qu’un faible rapport avec la présente affaire, qui implique un homme d’âge mûr sollicitant des services sexuels de la part de deux jeunes filles de 16 ans par l’intermédiaire d’une proxénète à la suite de la publication d’une annonce de services sexuels impliquant « 2 jeunes québécoises débutantes » dans le contexte d’une importante problématique de prostitution juvénile à Laval.
[97] The supposedly reasonable hypothetical adopted in C.D.R. and extracted from Lalonde bears a tenuous, insignificant link to the circumstances of the offence committed by Dawson. I question the hypothetical’s utility as an example for demonstrating how the test of gross disproportionality can be met.
[98] Furthermore, I do not consider myself to be strictly bound by C.D.R. The Superior Court of Justice and the Ontario Court of Justice are courts of concurrent jurisdiction. As a matter of judicial comity, I respect the declaration of constitutional invalidity made by de Sa J. in C.D.R., but I do not accept it as the final word, which pronounces upon the constitutionality of s. 286.1(2) of the Code. (see R. v. Sullivan 2022 SCC 19 at paras. 43 and 44)
[99] Counsel for Dawson referred me as well to the decision of Davies J. in R. v. Mootoo 2022 ONSC 384 where His Honour refused to find that Justice de Sa’s reasoning in C.D.R. was plainly wrong. However, in Mootoo, Justice Davies made no mention of the decision of the Québec Court of Appeal in C.M. , or the judgment of Strathy J., as he then was, of the Superior Court of Justice in Saftu.
[100] At the end of the day, I find I am left with a number of trial level decisions referred to me by Dawson’s counsel, amongst them, C.D.R., Badali, Lalonde, and Faroughi [1] , all opining directly or analogously upon the constitutionality of s. 286.1(2) of the Code, and from which I can draw guidance in deciding Dawson’s case. I also have two competing appellate level decisions, where s. 286.1(2) was struck down by the British Columbia Court of Appeal in J.L.M. [2] , and much more recently in the post- Friesen era, upheld by the Québec Court of Appeal.
[101] I find I am most persuaded by the constitutional analysis conducted by the Québec Court of Appeal in C.M .
Conclusion
[102] Having found no infringement or denial of Dawson’s section 12 Charter right, I need not embark upon an analysis under the section 1 , saving provision of the Charter.
[103] Always, the fundamental principle of Canadian sentencing law requires a sanction to be imposed that is proportionate to the gravity of the offence committed and the degree of responsibility of the offender.
[104] Let me be clear. I do not relish depriving anyone of his or her liberty. Nor should any sentencing judge. I take no joy in knowing that Dawson will suffer exquisite agony in serving a six month minimum jail sentence, given his pre-existing mental condition.
[105] Nevertheless, the constitutional hurdle to be overcome to strike down an MMS must necessarily be high.
[106] Sending Dawson to jail for six months, in my humble view, will not be “more than excessive”. It will not be an “abhorrent” or “intolerable” result for what he did. It would not outrage the community’s sense of decency and fairness. It would not be grossly disproportionate to Dawson’s degree of moral blameworthiness, in light of the gravity of the offence he committed, and after due attention is paid to his unique, personal circumstances.
[107] For the foregoing reasons, I must deny the application brought by counsel for Dawson seeking a declaration that the MMS contained in section 286.1(2) of the Code constitutes a breach of section 12 of the Charter, as being cruel and unusual, and therefore of no force and effect.
[108] I wish to thank both Crown and defence counsel for their very extensive and able arguments made at the hearing of the application.
DATED: October 17, 2022
March, M.G., J.