Non-Publication and Non-Broadcast Order Notice

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

ONTARIO COURT OF JUSTICE

DATE: 2023 10 16 COURT FILE No.: Toronto – 45002323-00

BETWEEN:

HIS MAJESTY THE KING

— and —

COLIN RAMSAY

Before: Justice John McInnes

Heard on: September 28, 2022 and March 20, June 29 and July 13, 2023 Oral Reasons for Sentence given: September 25, 2023 Written Reasons for Sentence released: October 16, 2023

Counsel: I. Shaikh, counsel for the Crown S. Wickramasinghe and E. Lewsen, counsel for the Defendant, Colin Ramsay

Endorsement

I Introduction

[1] On September 28, 2022, Colin Ramsay plead guilty to one count of communicating with a person under the age of eighteen years for the purpose of facilitating sexual exploitation, contrary to s.172.1 (1) (a) of the Criminal Code. The Crown had elected to proceed summarily.

[2] As part of the sentencing hearing, Mr. Ramsay challenged the constitutional validity of the six-month mandatory minimum for this offence in summary conviction proceedings [“the mandatory minimum”] under s.12 of the Charter. I heard submissions on the Charter Application and sentencing on March 20 and July 13, 2023. On September 25 I gave oral reasons on the Charter Application and sentenced Mr. Ramsay, with fuller written reasons to follow. These are those reasons.

II The Facts in Support of the Guilty Plea

[3] The guilty plea was based on the following Agreed Statement of Facts [“ASF”]:

1. YP [1] was under 18 years of age and older than 16 years of age at the relevant time. She was a student at [a Toronto Secondary School] who completed grade 11 in June of 2020.

2. Colin Ramsay was 45/46 years old at the relevant time and was the photography/yearbook class teacher for grades 11 and 12.

3. YP first met Colin Ramsay in the school's hallway during her second semester of grade 10. Colin Ramsay and YP became increasingly friendly. YP and other students would spend their time between classes and after school in Colin Ramsay's classroom, often forgoing their actual classes to hang out with him.

4. When YP received her grade 11 school schedule, she went to Colin Ramsay to help switch some of her classes. YP was enrolled in Colin Ramsay's yearbook class in September 2019.

5. Shortly thereafter, YP obtained Colin Ramsay's cellular number through another female student at [the school], in order to ask questions about her school assignments.

6. Initially, commencing in October of 2019, YP would contact Colin Ramsay via text messages in order to ask questions about her school assignments. Weeks later the text communication became more frequent and became more personal.

7. YP disclosed personal details to Colin Ramsay. She told him about her personal and health problems and shared her vulnerabilities. Colin Ramsay knew that YP was going through a difficult time in her life.

8. By early December, Colin Ramsay continued to text the YP, mostly about personal matters and also occasionally communicated with her over the phone. On one occasion in mid-December 2019 YP sent a text message, along with a photograph of her location in a specific area of Toronto to Colin Ramsay knowing he lived in the area.

9. He asked YP to stay where she was and met her in person before going out for a coffee together.

10. YP remained a student in the Colin Ramsay's photography/yearbook class for the academic year. Colin Ramsay was very informal with YP in class as he was with most of his students. Between the months of January, 2020 and February, 2020 Colin Ramsay play fought / wrestled with YP in front of her peers in his classroom.

11. Colin Ramsay made sexual innuendos toward YP in front of her then boyfriend and invited her out for dinner.

12. During the month of January, 2020 YP and Colin Rmasay met in person approximately 3-4 times, and Colin Ramsay instructed her "not to tell anyone".

13. During these interactions, Colin Ramsay and YP would go for walks, for coffee and ate at nearby restaurants.

14. Between the months of February, 2020 to mid March, 2020 Colin Ramsay and YP would meet more frequently, between once to twice a week. He would place his hand on top of hers while eating at a restaurant.

15. Between the months of mid March, 2020 and mid June, 2020 Colin Ramsay remained in constant contact with YP by way of daily text messages and telephone calls. The content of their discussions alternated between friendly topics of conversation to sexual innuendos, jokes and comments.

16. During some of these conversations Colin Ramsay engaged in sexually charged conversations with YP wherein they discussed their sexual preferences and Colin Ramsay sent to YP sexually suggestive stock images of lingerie, sex toys and a bar graph depicting the male and female sex drive.

17. Colin Ramsay gave YP a number of gifts and repeatedly told her she was "hot" and "cute" via texts.

18. By mid June 2020, YP stopped replying to the accused's text messages and stopped calling him.

19. YP reported Colin Ramsay's behaviour to a trusted adult and a joint investigation was initiated by the Toronto Police and Children's Aid Society of Toronto (CAST).

20. On July 10th, 2020, Colin Ramsay attended 32 Division, where he was arrested and released on a Form 10.

21. There are over two thousand pages of text messages and images between YP and Colin Ramsay. [Attached was "Appendix A", the complete collection of text messages between the accused and YP, "Appendix B", a selection of the text messages and "Appendix C", some of the images shared between Colin Ramsay and YP].

22. Colin Ramsay admits he intentionally sent the text messages to YP.

23. Colin Ramsay admits he knew YP was under 18 years of age at the time he sent the text messages and communicated with her.

24. Colin Ramsay admits he sent the text messages and communicated with YP for the purpose of facilitating sexual activity with her while she was under 18 years of age.

II Circumstances of the Offender

[4] Mr. Ramsay is a 48-years old first offender. Before he was charged with this offence, he had been employed as a teacher at [a Toronto secondary school] since 2007. Before that he received a Diploma in graphic design from the Ontario College of Art and Design and, in 2007, a B. Ed. from the Ontario Institute for Studies in Education.

[5] Mr. Ramsay had a difficult childhood. He was born in Scotland and his family immigrated to Canada when he was a toddler. His father worked at a power plant in Port Hope. Mr. Ramsay’s parents suffered from manic depression and drug and alcohol abuse. She attempted suicide on multiple occasions starting when Mr. Ramsay was a young child and continuing into his teenage years. Mr. Ramsay’s father suffered from congestive heart failure. He had a series of heart attacks, also starting early in Mr. Ramsay’s childhood. Mr. Ramsay’s father died from heart failure in 2005 and his mother died in 2007.

[6] In adulthood, Mr. Ramsay has struggled with mental illness, social isolation, and a life-long learning disability that manifests in an extreme deficit in his short-term memory capacity. On a Psycho-Educational Assessment conducted by the University of Toronto, Accessibility Services in 2006, he scored in the 1st percentile for working memory category, which measures a person’s ability to “remain focused and to remember task relevant material.” Mr. Ramsay has developed various practices, integrated with his daily routines to cope with this disability.

[7] Mr. Ramsay was diagnosed with depression in 2008 and he has been taking anti-depressants since then. His condition worsened during the COVID-19 pandemic. While teaching at [the secondary school], he felt isolated from his colleagues. After he was charged, he lost all but one of his friends and became suicidal.

[8] Mr. Ramsay was diagnosed with type 2 diabetes in 2009. He must take a daily insulin injection along with other medication, to manage his diet carefully and use a continuous glucose monitoring device attached to his arm. One function of the device is to alert him to wake up in the night if his blood sugar gets too low and when that happens it is necessary for him to consume sugar right away, usually by drinking juice.

[9] Mr. Ramsay is the sole caregiver for his 51 year old brother Kevin Ramsay, who attended court for the sentencing hearing. Both are single and live together in a one-bedroom apartment in Newmarket. Like the defendant, Keven Ramsay suffers from depression and type 2 diabetes. He also has severe asthma, congestive heart failure and Charcot-Marie-Tooth disease. The latter is a peripheral neuropathic disease leading to progressive loss of function in the hands, arms, legs, and feet. Kevin Ramsay’s left leg was amputated in 2016 and he is now limited to a wheel-chair. He is wholly dependant on the defendant for his daily care, including toileting and bathing. Mr. Kevin Ramsay is acutely socially isolated (apart from the defendant) and will experience significant hardship doubtless requiring state intervention if I sentence his brother to a jail term.

[10] Forensic Psychiatrist Dr. Jonathan Rootenberg prepared a forensic psychiatric report admitted on consent without cross-examination. Based on his interview of Mr. Ramsay, whatever information from other sources including historical psychological/medical records and the case brief and psychometric testing, Dr. Rootenberg found that Mr. Ramsay does not suffer from any behavioural, personality or sexual disorder, that his behavior during the period in question was atypical and out of character for him as he has otherwise been law-abiding and pro-social. Mr. Ramsay seems to be genuinely remorseful and is strongly motivated against further involvement with the criminal justice system. Dr. Rootenberg concluded Mr. Ramsay represents a low risk to reoffend either violently or sexually.

III The Impact of the Offence on the Victim

[11] YP provided a victim impact statement. She wrote that the offence has had a devastating and profoundly negative emotional impact. She has experienced “bad anxiety and PTSD” for which she has had to take medication “just to be able to leave the house and function every day”. She has experienced reduced social life and engagement with the world and is in therapy. YP reported she was “ostracized when everyone found out about what happened, and some people were really judgmental of [her]”. She lost friends, left the school for a time and ultimately switched to an online school to complete high school. She also felt disconnected from her family members. She reported feeling shame and embarrassment, as though she “should have seen it coming and should have known better, even though now I know that it wasn’t my fault.”

IV Positions of the Parties

[12] The defence argues the mandatory minimum sentence violates s.12 of the Charter and should not be applied and that a conditional sentence in the 9-12 month range is adequate to address denunciation and deterrence given the mitigating factors and the defendant’s personal circumstances including that he is the sole caregiver for his brother. If I uphold the mandatory minimum (and a conditional sentence is statute-barred) the defence submits I should impose the minimum sentence, i.e. six months.

[13] The Crown submits the mandatory minimum is consistent with s.12 of the Charter and that it is unnecessary to consider the constitutional issue because irrespective of the validity of the mandatory minimum a jail sentence in the 18 to 24 month range is required to give effect to the primary sentencing objectives of denunciation and general deterrence. The Crown also seeks a probation order for three years and other applicable ancillary orders. [2]

V Analysis and Conclusions

(a) The Mandatory Minimum

[14] I begin by addressing Mr. Ramsay’s claim that the mandatory six-month minimum sentence under s.172.1(2)(b) is inconsistent with s.12 of the Charter and is therefore inoperable.

i. Should the Constitutional Issue be Addressed in this Case?

[15] Judges of this Court are “not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982 …[but do] have the power to determine the constitutionality of a law where it is properly before them” and if “[the] law does not conform to the Constitution…to refuse to apply it in the case at bar”: R. v. Lloyd, 2016 SCC 13, paras. 15 and 19.

[16] The next question is whether I should exercise that power in this case, as the Lloyd Court explained:

…it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender's sentence, as a condition precedent to considering the law's constitutional validity, would place artificial constraints on the trial and decision-making process.

Lloyd, para. 18

[17] In this passage, the Supreme Court encourages a preliminary assessment of whether the mandatory minimum will affect the sentencing process in the interest of judicial economy. As I read it, the Court implicitly posits three situations in which a court may find itself:

i the constitutional question is moot because it is clear the mandatory minimum is well below the shortest fit sentence;

ii the constitutional question must be decided because the mandatory minimum legally precludes an otherwise fit shorter sentence and/or a conditional sentence; or,

iii it is not clear upfront whether the mandatory minimum would impact the ultimate sentence and so the court has a broad discretion whether to decide its validity that may be exercised even if it is unlikely to affect the ultimate sentence.

[18] The Crown seeks a jail sentence in the 18 to 24-month range. The defence seeks a conditional sentence if I find the mandatory minimum unconstitutional and the six-month minimum if I do not. At this stage of the analysis, the focus is mootness, not fine-tuning the balance between competing sentencing goals and principles. Even so, it is apparent to me that a fit jail sentence would probably land somewhere between six months and 18 months and that even the lengthiest and most restrictive conditional sentence possible would be a stretch. A stretch, however, is sometimes called for. I am not prepared to find at this preliminary stage that a two-year-less-a-day conditional sentence with house arrest would be unfit if otherwise available.

[19] This is a case of the third type described above, one in which it is not entirely clear at the outset whether the validity of the mandatory minimum will influence the sentence I ultimately impose. It would be improvident to foreclose the possibility of a conditional sentence at this early stage of the analysis and I exercise my discretion in favour of determining the constitutional question.

ii. The Correct Pathway to Decision

[20] It is important to identify the proper pathway to decision, i.e. by applying the s.12 analytic framework developed in R. v. Hills, 2023 SCC 2 and its forerunners, or by applying stare decisis.

[21] The Hills framework consists of two stages.

[22] At the first stage the sentencing court determines what is a fit and proportionate sentence having regard to the objectives and principles of sentencing in the Criminal Code: Hills, para. 40. See also, R. v. Bissonnette, 2022 SCC 23, paras. 62 and 63; R. v. Nur, 2015 SCC 15, para. 46.

[23] At the second stage, the court determines whether the mandatory minimum would be grossly disproportionate to the fit and proportionate sentence identified at the first stage. Gross disproportionality is assessed in the context of “[t]he scope and reach of the offence, the effects of the penalty on the offender, and the penalty itself and it means something more than “merely excessive”, as the Court explained in Hills:

However, gross disproportionality is a constitutional standard. In using phrases such as “so excessive as to outrage standards of decency” [citations omitted], “abhorrent or intolerable” to society and “shock the conscience” of Canadians [citations omitted], this Court has repeatedly emphasized that gross disproportionality is a high bar [citations omitted].

The constitutional bar “is set high to respect Parliament's general authority to choose penal methods that do not amount to cruel and unusual punishment”: Hills, paras. 40, 41, 109, 124. See also, Bissonnette, at para. 63; Nur, at para. 46; R. v. Smith, [1987] 1 S.C.R. 1045, p.1072.

[24] This two-part assessment “may proceed on the basis of either (a) the actual offender before the court, or (b) another offender in a reasonably foreseeable case or hypothetical scenario”: Hills, para. 41. See also, Bissonnette, para. 63; Nur, para. 77.

[25] The end result of the Hills analysis – the mandatory minimum penalty is or is not inconsistent with s.12 of the Charter – is a determination of a question of law and as such it is subject to stare decisis.

[26] To state the obvious, if a higher court in Ontario or the Supreme Court of Canada had already found s.172.1(2)(b) infringes s.12 of the Charter, or declined to do so, I would be bound by that decision and would apply it without further comment. Stare decisis, when it applies, is a supervening consideration.

[27] Until recently there was confusion about the application of stare decisis to previous decisions of this Court (absent higher court authority). In Lloyd, the Supreme Court held that if a provincial court has already found a mandatory minimum penalty violates s.12 of the Charter, it is “open to provincial court judges in subsequent cases to decline to apply the law, for reasons already given or for their own”: Lloyd, para. 19. One way of reading this passage was that it left it to individual judges in the subsequent cases to choose between stare decisis and a de novo Hills analysis, almost as though this was a matter of personal style or preference.

[28] In R. v. Sullivan, 2022 SCC 19, however, the Supreme Court of Canada poured cold water on this notion. The Court made it clear that the judge must first look for binding precedent, whether from higher courts or earlier decisions of the same court, and desist from conducting any original constitutional analysis unless none is found.

[29] The next step, then, is a search for binding precedent.

iii. Higher Court Treatment of the Issue and Vertical Stare Decisis

[30] The constitutionality of s.172.1(2)(b) has not been determined by any higher court in this Province or the Supreme Court of Canada, but it has been indirectly addressed. This has generated dicta that will bear on the application of horizontal stare decisis, but it has produced no clear-cut vertically binding precedent.

[31] The constitutionality of s.172.1(2)(b) will soon be resolved authoritatively in a case before the Supreme Court of Canada, R. v. H.V., an appeal from a decision of the Quebec Court of Appeal striking down s.172.1(2)(b) as an infringement of s.12 of the Charter: R. v. H.V., 2022 QCCA 16. The appeal was heard on February 12, 2023, and the Court’s decision is still under reserve as of the date of this decision. [3]

[32] The constitutionality of s.172.1(2)(a), the one-year mandatory minimum for child luring where the Crown proceeds by indictment, was before the Court in R. v. Morrison, 2019 SCC 15 but the majority held that “it would be unwise to rule on the constitutional validity of the mandatory minimum under s. 172.1(2)(a)” because the lower courts had decided the question based on a “mistaken understanding that Mr. Morrison could be convicted on the basis of mere negligence - that is, his failure to take reasonable steps - and their conclusions on the s. 12 issue rested, at least in part, on this mistaken understanding”: Morrison, para. 145. [4] Writing for herself and Abella J. in dissent, Karakatsanis J. held the lower court record was sufficient to decide the issue and would have found s.172.1(2)(a) violates s.12.

[33] For the majority, Moldaver J. framed the constitutional issues to guide lower courts called upon to decide the issue in future cases and summarized some arguments for and against striking down s.172.1(2)(a) (many of which equally apply to s.172.1(2)(b)):

...Several features of s. 172.1 suggest that the mandatory minimum under subs. (2)(a) is, at the very least, constitutionally suspect. Subsection 172.1(2) "casts its net over a wide range of potential conduct", making it potentially vulnerable to constitutional challenge given the range of reasonably foreseeable applications of the mandatory minimum: Nur, at para. 82; Lloyd, at para. 35. The mandatory minimum attaches to any offence committed under s. 172.1(1), and these offences vary in a number of respects. They include child luring in the context of communications with a person who is, or who the accused believes is, of various ages -- less than 18 years old under s. 172.1(1)(a), less than 16 under s. 172.1(1)(b), and less than 14 under s. 172.1(1)(c). Moreover, s. 172.1's scope encompasses situations potentially ranging from a single text message sent by a 21-year-old young adult to a 15-year-old adolescent, to those involving numerous conversations taking place over weeks or months between a middle-aged mature adult and a 13-year-old child.

Subsection 172.1(1) also criminalizes communications sent for the purpose of facilitating a wide array of designated secondary offences. These include, among others, sexual interference with a person under 16 (s. 151), sexual exploitation (s. 153(1)), incest (s. 155), bestiality in the presence of a person under 16 (s. 160(3)), exposure of genitals to a person under 16 (s. 173(2)), aggravated sexual assault (s. 273), and abduction (ss. 280 and 281). The secondary offences vary in terms of their gravity, as evidenced by the fact that Parliament has assigned markedly different sentencing ranges to different offences within this list. For example, a conviction for aggravated sexual assault against a person under 16 carries with it a mandatory minimum of five years' imprisonment and a maximum penalty of lifetime imprisonment (s. 273(2)(a.2)). By contrast, a conviction for exposure of genitals to a person under 16 carries with it a mandatory minimum of 90 days' imprisonment and a maximum of two years' imprisonment where the Crown proceeds by way of indictment (s. 173(2)(a)) and a mandatory minimum of 30 days' imprisonment and a maximum of six months' imprisonment where the Crown proceeds summarily (s. 173(2)(b)) -- these two mandatory minimums are in fact less strict than those established under s. 172.1(2). And certain designated secondary offences carry no mandatory minimum at all.

As this brief overview demonstrates, there is considerable variation in terms of the conduct and circumstances that may be caught by s. 172.1(1). Yet, despite this variation, Parliament has not included a "safety valve" in the provision that would allow judges to exempt outlier cases where a significantly lower sentence might be appropriate, making the mandatory minimum provision vulnerable to constitutional challenge: see Lloyd, at para. 36.

... Child luring is a serious offence that targets one of the most vulnerable groups within Canadian society -- our children. It requires a high level of mens rea and involves a high degree of moral blameworthiness. And while the offence may be committed in various ways and in a broad array of circumstances -- which is generally the case with most criminal offences -- the simple fact remains that in order to secure a conviction, the Crown must prove beyond a reasonable doubt that the accused intentionally communicated with a person who is, or who the accused believed to be, underage, with specific intent to facilitate the commission of a sexual offence or the offence of abduction against that person. Thus, it is at least arguable that a mandatory minimum sentence of one year's imprisonment is not grossly disproportionate in its reasonably foreseeable applications.

Morrison, paras. 146 to 149, 153

[34] Justice Karakatsanis’ analysis includes the following:

...s.172.1(1) captures a wide variety of communications. The offence can be committed by individuals who use the Internet to target children for the purpose of physically exploiting them or, conversely, by individuals who have no intention of meeting their victims in person. Similarly, the duration of the communication may vary significantly. While, in some cases, the offender will have engaged in an extended dialogue with the victim in order to "groom" him or her, the offence can equally be made out through a short series of messages lasting only a few minutes. As my colleague points out, it can capture a single text sent by a 21-year-old adult to a 15-year-old adolescent or multiple conservations taking place over a long period between a mature adult and a 13-year-old child (Moldaver J.'s Reasons, at para. 146)... These factors may impact the level of harm caused by the offence, thereby informing what constitutes a fit and proportionate sentence (see s. 718 of the Criminal Code).

The personal circumstances of the offender and the relationship between the offender and the victim may also vary significantly. Past cases demonstrate that child luring offences are sometimes committed by individuals who are close in age to their victims, by those who suffer from cognitive difficulties or mental illness, and by individuals who were themselves abused in the past (see e.g. R. v. Hood, 2018 NSCA 18, 409 C.R.R. (2d) 70; R. v. S. (S.), 2014 ONCJ 184, 307 C.R.R. (2d) 147; R. v. Crant, 2017 ONCJ 192). These factors may diminish the moral blameworthiness associated with the offence (see s. 718.1 of the Criminal Code).

Given the variety of circumstances captured by the offence, it is not surprising that the s. 172.1(1) jurisprudence demonstrates that the fit and proportionate sentence can be significantly less than the one-year mandatory minimum term of imprisonment required by the Criminal Code. Courts applying the Criminal Code's sentencing principles have determined that, in certain child luring cases, a fit and proportionate sanction included lesser penalties: a short period of institutional incarceration of 90 days or less (Alicandro, at paras. 2 and 49; R. v. Read, 2008 ONCJ 732 at para. 29; see also R. v. Dehesh, [2010] O.J. No. 2817 (S.C.J.), at para. 9; S. (S.), at para. 91); a conditional sentence (R. v. El-Jamel, 2010 ONCA 575, 261 C.C.C. (3d) 293, at paras. 2 and 20; R. v. Folino, 2005 ONCA 258, 77 O.R. (3d) 641, at para. 33; R. v. B. and S., 2014 BCPC 94, at para. 42; R. v. Danielson, 2013 ABPC 26, at para. 89); or even a conditional discharge (R. v. Pelletier, 2013 QCCQ 10486 at para. 73). Although some of these cases (Dehesh; S. (S.); Danielson) proceeded by way of summary conviction, they demonstrate that the offence can warrant such sentences. And, as the Nova Scotia Court of Appeal recently noted, in certain reasonably foreseeable cases, a suspended sentence would be appropriate (Hood, at para. 154).

Morrison, paras. 182 to 184

[35] The constitutionality of this closely related mandatory minimum was left undecided by Morrison, but these passages from the judgments penned by Justices Moldaver and Karakatsanis are a rich source of guidance in the form of “commentary, examples or exposition that are intended to be helpful and may be found to be persuasive, but are certainly not ‘binding’”: R. v. Henry, 2005 SCC 76, para. 57.

[36] The issue arose again in R. v. Cowell, 2019 ONCA 972. There the majority found that the one-year mandatory minimum sentence would not be grossly disproportionate in that case and that it would be improvident to address whether it would be in other reasonably foreseeable scenarios as the issue had not been litigated below: Cowell, para. 126. Writing in dissent, Trotter J.A. would have found the one-year mandatory minimum unconstitutional. “[Relying] heavily on the reasons of Karakatsanis J., and on some of the observations made by the [Morrison] majority”, he concluded that both “the broad range of conduct covered by s. 172.1” which “permits its application in reasonably foreseeable circumstances where the imposition of the mandatory minimum sentence would be grossly disproportionate” and the different minimum sentences for the same offence depending on the Crown’s election, drove the conclusion that s.172.1(2)(a) is inconsistent with s.12 of the Charter.

[37] Section 172.1(2)(a) was found to infringe s.12 in R. v. C.D.R., 2020 ONSC 645; R. v. Faroughi, 2020 ONSC 780 for reasons broadly consistent with the analysis in Morrison and Justice Trotter’s dissent in Cowell. These holdings were followed in R. v. Kavanagh, 2023 ONSC 283, R. v. Mootoo, 2022 ONSC 384 and R. v. Gould, 2022 ONCJ 187.

[38] Because these decisions concern a different provision, the one-year mandatory minimum that applies when the Crown proceeds by indictment, they are not binding on me. The constitutionality of the two minimums in s.172(1)(a) and (b) turns on some overlapping considerations, but there are also differences.

[39] The overlapping considerations relate primarily to the scope and reach of the offence, which is identical since it is the same offence. The effects on the offender and the penalty differ to some extent since the summary conviction minimum is six months, half the indictable maximum.

[40] In addition, the existence of the lower minimum for summary conviction cases was also a factor in the analysis that led courts to conclude the indictable maximum was unconstitutional. If the same conduct might attract only a 90-day minimum (which was the s.172.1(2)(b) minimum applicable when charges were laid in Morrison), this was a sign that the one-year minimum was grossly disproportional.

[41] This cuts both ways, however. Since the s.172.1(2)(a) one-year minimum is now of no force and effect in Ontario, upholding s.172.1(2)(b) would result in the anomalous situation that by electing to proceed summarily the Crown would not only gain the usual procedural advantage (including avoiding a preliminary inquiry) but also access to a mandatory minimum sentence not available in indictable proceedings. This disparity is at least equally suggestive of gross disproportionality as the difference between the two minimums that influenced the finding that s.172.1(2)(a) is unconstitutional.

[42] Be that as it may, as of today no decision of any higher court in Ontario or the Supreme Court of Canada constitutes a binding precedent on the constitutionality of s.172.1(2)(b).

[43] I turn to horizontal stare decisis.

[44] Three decisions of this Court have held that s.172.1(2)(b) offends s.12 of the Charter: R. v. Hems, 2019 ONCJ 779, R. v. King, 2019 ONCJ 366 and R. v. Randall, 2018 ONCJ 470. In a fourth decision, R. v. Ho, 2020 ONCJ 69, Javed J. exercised his discretion against deciding the issue. In the fifth decision, R. v. Ditoro, 2021 ONCJ 540, McKerlie J. upheld s.172.1(2)(b), finding the six-month minimum was not inconsistent with s.12.

[45] Does a horizontally binding precedent emerge from this collection of conflicting decisions?

[46] As the Court clarified in Sullivan, any finding concerning the constitutionality of s.172.1(2)(b) is a determination of a question of law to which “the ordinary rules of stare decisis” apply, including the rule of “horizontal stare decisis”, as the Court explained:

Horizontal stare decisis applies to courts of coordinate jurisdiction within a province, and applies to a ruling on the constitutionality of legislation as it does to any other legal issue decided by a court, if the ruling is binding. While not strictly binding in the same way as vertical stare decisis, decisions of the same court should be followed as a matter of judicial comity, as well as for the reasons supporting stare decisis generally…

Horizontal stare decisis applies to decisions of the same level of court. The framework that guides the application of horizontal stare decisis for superior courts at first instance is found in Spruce Mills, described by Wilson J. as follows (at p. 592):

... I will only go against a judgment of another Judge of this Court if:

(a) Subsequent decisions have affected the validity of the impugned judgment;

(b) it is demonstrated that some binding authority in case law, or some relevant statute was not considered;

(c) the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority. [5]

Sullivan, paras. 65 and 73

[47] The present case illustrates the wisdom of the legal policy underlying Sullivan. None of the previous cases in this Court (which were decided before Sullivan) came to grips with horizontal stare decisis, and the result is a set of conflicting decisions and an unsettled state of the law.

[48] Happily, Sullivan provides a roadmap for judges to correctly apply stare decisis even when presented with a mélange of conflicting decisions from courts of coordinate jurisdiction.

[49] The starting point is that “[w]here, as here, a judge is faced with conflicting authority on the constitutionality of legislation, the judge must follow the most recent authority unless the [Spruce Mills criteria]…are met”: Sullivan, paras. 75 & 79.

[50] Citing this passage, the Crown submits I should simply follow the most recent authority, which happens to be Ditoro.

[51] I disagree. Sullivan does not direct me to simply check the release dates of the decisions and follow the one whose date is most recent. It directs me to apply the most recent authority unless the Spruce Mills criteria are met.

[52] The judicial history in Sullivan is instructive. [6] Mr. Justice Boswell was presented with earlier conflicting decisions of his own court and superior court decisions from other provinces. He concluded that earlier decisions of the same court should be should be followed “in the absence of cogent reasons to depart therefrom” including if the decision is “plainly wrong”. He then observed that the state of the law was “considerably unsettled” given the array of conflicting conclusions on whether the provision (s.33.1) violated sections 7 and 11(d) of the Charter and/or was saved by s.1. As a result he did not “feel constrained to follow one school of thought more than the other” and he determined the constitutional questions by means of a de novo Charter analysis: Sullivan, para. 18.

[53] Writing for the full bench in the Supreme Court of Canada, Kasirer J. held this was an incorrect application of horizontal stare decisis. Kasirer J. did not hold that Boswell J. should have simply followed the most recent decision of his own court, as the Crown argues I should do. Rather, he prescribed a subtler approach to resolving the conflicting state of the law:

Application of the doctrine of horizontal stare decisis in Mr. Chan's case illustrates how the Spruce Mills criteria should work in practice. At the time of Boswell J.'s constitutional ruling, there were four known decisions from the Ontario Superior Court, three of which held that s. 33.1 was unconstitutional. The most recent of these was Fleming. Fleming relied wholly on Dunn and, as a result, it is most appropriate to apply the Spruce Mills criteria to Dunn.

Boswell J. cited the correct principles from Spruce Mills but, respectfully, erred in applying them. First, he concluded that he "[did] not feel constrained to follow one school of thought more than the other" because trial courts across the country had expressed different views on the constitutionality of s. 33.1 (para. 58). The conventions of horizontal stare decisis apply within the province and so the trial judge was required to consider the Spruce Mills criteria with specific reference to previous rulings within Ontario. The presence of conflicting decisions is not a reason to sidestep the Spruce Mills analysis. Second, in the Application to Re-open the Constitutional Challenge, he concluded that McCaw -- which held that it was bound by Dunn -- was "plainly wrong" (paras. 14 and 34). The "plainly wrong" standard no longer adequately summarizes the whole of the applicable Spruce Mills criteria.

Instead, Boswell J. should have looked to the substance of Dunn to determine whether it had been overruled by a higher court, had been decided per incuriam, or had been taken in exigent circumstances. That would have revealed that Dunn did not engage whatsoever with the earlier Ontario decision in R. v. Decaire, [1998] O.J. No. 6339 (QL) (C.J. (Gen. Div.)), that upheld the constitutionality of s. 33.1. Since Dunn did not apply the Spruce Mills criteria to determine whether it was permissible to depart from Decaire, Dunn was a decision per incuriam and did not need to be followed. The trial judge should have then reviewed the substance of Decaire to determine whether that decision should be followed based on the Spruce Mills criteria. That would have revealed that Decaire considered the appropriate statutes and authorities in reaching the conclusion that s. 33.1 infringed ss. 7 and 11(d) of the Charter but was upheld under s. 1. There is also no indication that Decaire was rendered in exigent circumstances. The trial judge therefore should have followed Decaire in the constitutional ruling. Of course, on appeal, the Court of Appeal was not bound to follow Decaire or any other first instance superior court decision.

Sullivan, paras. 82 to 84 [emphasis added]

[54] It follows that to correctly apply horizontal stare decisis I must first “examine the substance of” Ditoro to determine whether it has been “overruled by a higher court, was decided per incuriam, or was taken in exigent circumstances”.

[55] McKerlie J. did not have the benefit of Sullivan and did not directly refer to, much less address the precedential effect of, the three earlier decisions from this Court in which s.172.1(2)(b) was found unconstitutional, Hems, King, and Randall. [7] Applying the above-quoted passage from Sullivan, it follows that Ditoro was decided per incuriam and is therefore not a binding precedent.

[56] The next step is to conduct the same examination of the substance of the next most recent decision, Hems, to determine if it is a binding precedent.

[57] In Hems, Bliss J. approached the question through an amalgam of the Nur / Hills framework and stare decisis. He addressed Morrison much as I have done above, noted that between the Court of Appeal and Supreme Court decisions in Morrison, our colleague Wakefield J. found s.172.1(2)(b) unconstitutional in Randall and explained how the analysis in Randall cohered with both the guidance in Morrison and the Nur framework generally. He ultimately concluded s.172.1(2)(b) infringed s.12.

[58] Hems was clearly not decided in haste or per incuriam. The remaining question is whether its holding is “necessarily inconsistent” with subsequent authority.

[59] Bliss J. did not have the benefit of Cowell or the later decisions of the Ontario Superior Court of Justice striking down s.172.1(2)(a), but those decisions only lend strength to the conclusion he reached that s.172.1(2)(b) is inconsistent with s.12. Most of the analysis in those decisions applies with equal or nearly equal force to the summary conviction minimum, and the fact there is no longer a minimum when the Crown proceeds by indictment hardly supports the Crown’s position in relation to the summary conviction minimum.

[60] Bliss J. did not have the benefit of Sullivan and he combined a de novo analysis of the issue with an application of horizontal stare decisis (because he followed Randall). While he need not have undertaken the original analysis in the end he followed the apparently binding precedent. His thoughtful attention to the s.12 jurisprudence generally and the issue-adjacent dicta, most notably Morrison, is a feature, not a bug. So far, nothing in the approach Bliss J. took is “necessarily inconsistent” with Sullivan.

[61] The Crown argues that the Hems line of cases is “necessarily inconsistent” with one subsequent binding authority, R. v. Friesen, 2020 SCC 9 and that, in light of Friesen the issue was “was validly reconsidered in R. v. Ditoro”.

[62] Friesen was a major pronouncement of the Supreme Court of Canada about how to correctly assess the seriousness of sexual offences against children. McKerlie J. explicitly relied on Friesen as having recalibrated the baselines to assess proportionality in the s.12 test, although she did not do so in the context of assessing the application of horizontal stare decisis (which she did not discuss at all).

[63] Still, if Friesen changed the landscape to the extent that the Hems line of cases is “necessarily inconsistent” with it, this would be a valid basis under the Sullivan/Spruce Mills test to decline to follow Hems.

[64] I agree with the Crown that the decision in Friesen invites focus and to some extent recalibration of courts conception of the inherent seriousness of offences involving of sexual violence against children, but I also agree with and adopt the analysis of analysis of Davies J. in R. v. Mootoo, 2022 ONSC 384, who in addressing much the same argument as the Crown has made before me, said this:

The Crown argues that all of the decisions on the mandatory minimum sentences are plainly wrong in light the Supreme Court of Canada's 2020 decision in R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309. In Friesen, at para. 5, the Supreme Court held that sentences for sexual offences against children should increase to reflect the true wrongfulness of these offences and the profound and ongoing harm they cause. The Crown argues that the trial decisions striking down the mandatory minimum sentences (in which the Courts have found that a one-year sentence would be grossly disproportionate in some circumstances) are clearly wrong because they did not recognize the true harm caused by these offences.

I agree with the Crown that the decision in Friesen sends a clear message to trial judges that sentences for sexual offences against children must increase to reflect the inherent gravity and harmfulness of those offences. The Court held that mid-single digit sentences should be the norm for sexual offences against children. The Court also held that upper-single digit and double-digit penitentiary terms are not reserved for rare or exceptional cases: Friesen, at para. 114. However, the Supreme Court expressly declined to set a starting point sentence for sexual offences against children: Friesen, at paras. 36-39. The Court in Friesen did not comment on any of the mandatory minimum sentences for sexual offences involving children.

Even if a "substantial sentence" will be required in most cases of sexual violence against children, that does not mean a sentence of one-year or more will be proportionate in every case. It also does not mean that the trial judges who concluded the mandatory minimum sentences are unconstitutional failed to appreciate the inherent wrongfulness and harmfulness of sexual offences against children. Even after Friesen, there can be cases in which a one-year sentence will be grossly disproportionate. Importantly the Ontario Court of Appeal struck down the mandatory minimum sentence for procuring a child to engage in prostitution after the Supreme Court's decision in Friesen. The Quebec Court of Appeal also struck down the mandatory minimum sentences for luring a child after Friesen. This supports my conclusion that the Supreme Court's direction that sentences for sexual offences against children should generally increase does not mean the mandatory minimum sentence for those offences will be proportionate in all circumstances.

I am not satisfied that any of the trial level decisions are plainly wrong and will, therefore, sentence Mr. Mootoo on the basis that the mandatory minimum sentences are all unconstitutional and inapplicable.

[65] Davies J. did not have the benefit of Sullivan and she applied the “plainly wrong” test rather than the Spruce Mills test. The substance of her analysis, however, clearly applies to whether the Hems line of cases is not “necessarily inconsistent” with the decision in Friesen. While her analysis is not binding, it is convincing on the question of whether Hems is “necessarily inconsistent” with Friesen. I note that Hems is also consistent with other developments in the jurisprudence more directly on point than Friesen, most notably Morrison, Justice Trotter’s dissent in Cowell and the C.D.R. line of cases. At best, Ditoro sits awkwardly with those decisions and might be “necessarily inconsistent” with them, although I need not decide that point.

[66] I note that in R. v. H.V., 2022 QCCA 16, the Quebec Court of Appeal directly considered the impact of Friesen on the identical constitutional question and rejected the submission that Friesen had altered the calculus of gross disproportionality for reasonable hypotheticals.

[67] Sullivan makes it clear that “the conventions of horizontal stare decisis apply within the province” so that past decisions of this Court on a question of law are binding (absent higher Ontario authority) and as such notionally trump any decision from another province, even a decision of another province’s senior appellate court. This does not mean appellate decisions from other provinces are no longer persuasive, however, when not in direct conflict with an Ontario decision. H.V. is high authority for the proposition that the Ontario authority, Hems, is not “necessarily inconsistent” with the subsequent binding authority, Friesen. The Quebec Court of Appeal was also bound by Friesen and it was alive to that reality when it decided that s.172.1(2)(b) is unconstitutional.

[68] I thus conclude I am bound by Hems and I proceed on the basis that s.172.1(2)(b) is inoperative.

(b) Sentencing Principles

[69] Section 718.1 requires me to fashion a sentence that is “proportionate to the gravity of the offence and the degree of responsibility of the offender”. The principle of proportionality requires me to examine the circumstances of both the offender and the offence so that the “punishment fits the crime”, i.e. the sentence properly reflects the seriousness of the offence, the degree of culpability of Mr. Ramsay in committing it and the harm that resulted.

[70] The related “parity” principle mentioned in s.718.2(b) requires me to impose a sentence similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

[71] Section 718.2 also provides that the sentence I impose should be “increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender”.

(c) The Nature and Gravity of the Offence

[72] The first step is to assess the gravity of the offence, both generally and in this case.

[73] The child luring offence is found in s.172(1)(a) of the Criminal Code:

172.1(1) Every person commits an offence who, by a means of telecommunication, communicates with

(a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1) [other inapplicable sections omitted];

[74] The penalties for this offence are set out in s.172.1(2) (the portions that have been found unconstitutional are struck through):

171.1(2) Every person who commits an offence under subsection (1)

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.

Here, of course, the Crown elected to proceed summarily and so paragraph (b) applies.

[75] There are three essential elements of the child luring offence:

i an intentional communication by means of telecommunication;

ii with a person who is, or who the accused believes is, under the requisite age; and,

iii for the purpose of facilitating the commission of a designated offence [8] with respect to that person: para. 23.

See, R. v. Morrison, 2019 SCC 15, para. 43; R. v. Levigne, 2010 SCC 25, para. 23

[76] Mr. Ramsay communicated with YP intentionally. He unequivocally knew she was under 18 and admits the electronic communications were to facilitate potential future sexual contact with YP. Since he was clearly in a position of trust or authority towards YP any such sexual contact would constitute sexual exploitation.

[77] It is important to situate Mr. Ramsay’s conduct in the context of Parliament’s legislative objective in enacting the child luring offence. In R. v. Levigne, 2010 SCC 25, the Court characterized the legislative intent as protecting children by “identify[ing] and apprehend[ing] predatory adults who, generally for illicit sexual purposes, troll the Internet to attract and entice vulnerable children and adolescents”. To achieve this purpose, “s. 172.1 criminalizes conduct that precedes the commission, or even the attempted commission, of certain designated offences, most of which involve sexual exploitation of children. It thereby creates an essentially inchoate offence - that is, a preparatory crime that captures conduct intended to culminate in the commission of a completed offence... There is no requirement that the accused meet or even intend to meet with the other person with a view to committing any of the designated offences…The offence reflects Parliament's desire to ‘close the cyberspace door before the predator gets in to prey’”: Morrison, supra, paras. 39 and 40.

[78] Here, Mr. Ramsay had extensive contact with YP as her teacher and, as time wore on, in a more personal capacity, including the in-person meetings described in the ASF. The electronic communications were employed as an adjunct to the in-person contact in much the same way as most people use texts and e-mails when communicating with friends and associates.

[79] Unlike many people who commit this offence, Mr. Ramsay was not “trolling the Internet to attract and entice vulnerable children and adolescents”. However, his use of these telecommunications was equivalently pernicious. The Appendices to the ASF make it abundantly clear that the comparatively frictionless medium of text messaging let Mr. Ramsay ramp up the frequency and intimacy of his interactions with YP, to test increasingly sexualized interaction with her and by these means to gradually inculcate a sexualized overtone to his relationship with YP.

[80] The term “facilitating” “includes helping to bring about and making easier or more probable -- for example, by ‘luring’ or ‘grooming’ young persons to commit or participate in the prohibited conduct; by reducing their inhibitions; or by prurient discourse that exploits a young person's curiosity, immaturity or precocious sexuality”: R. v. Legare, 2009 SCC 56, para. 28 [emphasis in original]. The sheer length and regularity of the total record of text exchanges between Mr. Ramsay and YP, including the facially innocuous parts of it – were purposed to sexualize or groom or trick YP towards receptivity to a sexual encounter, to cultivate a relationship of trust, a habit of intimacy, relinquishing inhibitions, all to facilitate eventual sexual contact with YP.

[81] Finally, “it is not necessary for the communications to be objectively capable of facilitating the commission of the specified secondary offence with respect to the underage person concerned”: Legare, para. 43 [emphasis in original]. In assessing the gravity of Mr. Ramsay’s conduct I must not speculate about how objectively likely or unlikely it was that Mr. Ramsay would achieve his ultimate aim of sexual contact or how he subjectively perceived that likelihood. Even if Mr. Ramsay believed it was a longshot and even if he was right in believing that, the offence subsists in engaging in telecommunication with that purpose in mind. As the Victim Impact Statement makes clear, significant harm resulted from the luring itself even though it did not ultimately lead to sexual contact.

[82] For this reason, the fact Mr. Ramsay had not yet suggested a specific sexual activity at a specific place or time (and might never have done so) is not a mitigating factor. It is a material consideration, but only in that it is an aggravating factor not present in this case but present in many of the range cases.

(d) Aggravating and Mitigating Factors

[83] I will begin with the mitigating factors.

[84] I cannot identify any specifically mitigating factor in relation to the offence. Certain aggravating factors found in other cases are not present, and this is relevant in identifying the range of sentence, but it is not a mitigating factor.

[85] Taking a holistic view of the entire course of conduct and the text exchanges, my sense is that Mr. Ramsay’s purpose was to eventually have sexual contact with YP but he did not pursue that goal as aggressively as is seen in some other cases. There was a degree of tentativeness in his approach, possibly a lack of confidence he would succeed in achieving his aim, but this is a comparative observation, not a factor in mitigation. He was not so predatory as the offenders in some cases, but predation was on the menu.

[86] There are important mitigating factors relating to Mr. Ramsay.

[87] First, Mr. Ramsay has shown his remorse and acceptance of responsibility for committing the offence through his guilty plea.

[88] Second, Mr. Ramsay is a first offender who comes before the court for the first time in middle age with no history of criminal behaviour. This is an important consideration.

[89] I accept Dr. Rootenberg’s conclusion that Mr. Ramsay is at low risk of recidivism. The following passage from his report also comports with the impression I have formed of Mr. Ramsay during these proceedings:

Mr. Ramsay attributed his behavior with respect to [YP], which appears to be at odds with his core values and his long-standing pro-social behavior, to his loneliness at the time. He has acknowledged the inappropriate nature of his text messages and images that he sent to [YP], as described in the Agreed Statement of Facts, and is pleading guilty to one count of Luring.

In summary, in my clinical psychiatric opinion, Mr. Ramsay’s behavior during the time period in question was atypical and out of character for an individual who has otherwise been law-abiding and pro-social. He acknowledges the wrongfulness of his conduct, and is greatly troubled by it, but knows that he cannot change the past. He is very upset at being in the criminal courts.

Mr. Ramsay’s involvement with the legal system has been very sobering for him, and he clearly does not want to engage in any further conduct that brings him into contact with the judicial system. Although remorse is difficult to measure, his expressions of remorse appear quite genuine, and he is very upset with respect to his behavior wherein he sent her inappropriate text messages and images, as well as meeting her in the community on a number of occasions, and the resultant impact on the complainant.

[90] Mr. Ramsay’s comportment during these proceedings, his guilty plea and Dr. Rootenberg’s report all satisfy me that Mr. Ramsay is genuinely remorseful and chastened by the fact he is the subject of criminal proceedings. He committed a serious criminal offence of a predatory character and yet my sense of Mr. Ramsay is that he is not a predatory person. Rather, he is a person with particular vulnerabilities that affected his judgment to an extreme and criminal degree. Mr. Ramsay has learned the hard way from this experience and I rate the odds of his returning before the courts in future as low.

[91] I also consider that Mr. Ramsay suffers from significant medical conditions, including Type II Diabetes requiring multiple medications and continuous glucose monitoring. Mr. Ramsay’s medical condition and specific treatment needs and the replacement of his established network of medical providers by the more rigid and inflexible medical regime inside prison would at the very least be a source of added stress and at the worse a cause of more negative health outcomes. This alone does not excuse Mr. Ramsay from a jail sentence if it is otherwise warranted, to be clear. Jail sentences negatively affect anyone subject to one, that is part of the reason jail sentences are punitive. But it is a relevant consideration that a prison sentence would have a greater negative impact on Mr. Ramsay than on someone without his medical needs.

[92] Another important mitigating factor is that Mr. Ramsay is the primary caregiver for his brother, Kevin Ramsay, who is limited to a wheelchair and requires Mr. Ramsay to assist him with very basic day-to-day care. I will have more to say about this factor later in these Reasons.

[93] The potential mitigating effect of Mr. Ramsay’s long-standing depression and its continuation post-charge is harder to assess. In R. v. Fabbro, 2021 ONCA 494, Gillese J.A. stated this:

For mental health to be considered a mitigating factor in sentencing, the offender must show a causal link between their illness and their criminal conduct. That is, the illness must be an underlying reason for the conduct. And, there must be evidence that a lengthy sentence would have a serious negative effect on the offender such that it should be reduced on compassionate grounds. [citations omitted]…

[94] There is no specific evidence before me on the role depression played in the commission of the offence, Dr. Rootenberg’s report being focussed on future risk assessment. At the broadest level, it seems obvious depression played some role. As Dr. Rootenberg noted, Mr. Ramsay himself believes that what drove him to commit the offence was loneliness and the relief from loneliness his intimacy with YP provided. This makes sense. Psychiatric training is not required to understand that depression and loneliness are interwoven and that gaining relief from such dystonic mental states would be a powerful motivator. In this sense, I do not doubt that depression was an operating cause of the motivational state that resulted in Mr. Ramsay committing this offence.

[95] On the other hand, depression and loneliness are ubiquitous in our society and while they justify compassion they are not a license to gain relief through criminal actions that harm others. There is no suggestion that Mr. Ramsay suffered from any psychopathology that deprived him of the capacity to gauge the moral implications of his actions and/or exert self-control. Depression and loneliness help explain why Mr. Ramsay did what he did, but they do not excuse it or even mitigate it.

[96] Fabbro is illustrative. The offender in that case was convicted of possessing a weapon for a dangerous purpose. He suffered from a long-standing opiate addiction and untreated depression and was acutely suicidal when he took a rifle intending to kill himself. As events turned, someone saw him and called police with whom he ended up in a protracted armed stand off before eventually giving up the rifle and surrendering peacefully. The Court of Appeal allowed his appeal from a two year less a day jail sentence and substituted a conditional sentence, noting:

While the sentencing judge acknowledged the appellant's addiction and mental health challenges, he did not consider whether there was a causal link between them and the offences. He was required to determine the extent to which those matters contributed to the appellant's conduct and the impact of that finding on the appropriate sentence: [citation omitted]. There was ample evidence of that causal link in the: two pre-sentence reports; medical records which included the appellant's attempts to get treatment at the Sault Area Hospital in the months leading up to the incident; and, reports from Dr. Pistor (psychiatrist), John Mertes (therapist), and Frank Perri (social worker). The conclusion that there was such a causal link is virtually inescapable on the evidence: the appellant wanted to commit suicide (using the shotgun) because of his addictions, his unresolved mental health issues, and the ensuing breakdown of his life. That the appellant's mental health problems and addiction played a central role in the offences is borne out by the appellant's conduct once on bail and being treated. He abided by strict bail conditions for over two years without a breach and fully complied with the rules and regulations of the John Howard Society Bail and Supervision Program.

[97] The present case is different. Here, the temporary relief of depression and loneliness no doubt motivated the offence, but they cannot be said to have inexorably driven it as in Fabbro. There the offender was in a state of suicidal crisis self-evidently the culmination of his untreated mental health issues. The primary target of his dangerous behaviour was himself, albeit that by taking a rifle to kill himself he created a dangerous situation.

[98] In contrast, Mr. Ramsay was depressed and lonely and resorted to criminally exploitative conduct to relieve his unhappiness. In a real sense, he stole happiness from someone else to fill his own stocks. And he did so persistently over a period of months, during which time he had both the capacity and the opportunity to recognize the harmfulness of his conduct and to stop.

[99] While I accept depression and loneliness were operative and important to understanding why the offence was committed, I do not regard them to be mitigating factors, either in relation to the offence or the offender.

[100] The most significant aggravating factor is that the 45 and 46-year old Mr. Ramsay abused a position of trust and authority to commit the offence. Mr. Ramsay voluntarily accepted the position he was entrusted with, to teach high school students, teenagers. Exploring interpersonal boundaries and social identity as adulthood looms closer and closer is the quintessence of being a teenager. It is an implicitly vulnerable time of life and this clothes teachers, parents and others in positions of trust or authority with the responsibility for maintaining healthy boundaries. It is a responsibility that cannot be offloaded on to children. This is no great insight or mysterious hidden truth revealed. This is not a case of Mr. Ramsay not getting the memo. He instructed YP not to tell anyone about their relationship. While he no doubt rationalized, at bottom Mr. Ramsay knew what he was doing was wrong and why it was wrong.

[101] By its very nature this offence was planned and premeditated to a high degree. As I have mentioned, nothing about this was spontaneous or an isolated instance of bad judgement. Rather, it was a pattern of persistent criminal behaviour extending over most of a full school year.

[102] Another important aggravating factor is the substantial interference entailed by Mr. Ramsay’s conduct. YP and other students spent time between classes and after school in Mr. Ramsay’s classroom, often skipping their other classes to spend time with him. Mr. Ramsay knew the seventeen-year old YP was going through a difficult time in her life. In this context, he started meeting with her and going out for coffee. Eventually this evolved into play-wrestling and sexual innuendos, then meeting YP for dinner and other in-person meetings, which Mr. Ramsay told YP not to tell others about. Mr. Ramsay put his hand on top of YP’s hand during meals, engaged in sexually charged conversation discussing sexual preferences, sharing sexually suggestive images of lingerie, sex toys, and a bar graph depicting the male and female sex drive. He repeatedly called YP “cute” and “hot” and sent her gifts. There are over 2000 pages of text messages and images between the Applicant and YP. While many of these were of a mundane character, the high volume of contact bespeaks significant interference with YP.

[103] In some of the cases in which the Crown proceeded summarily but the sentences were in the 1 to 2 year range, the degree of interference was notably higher than in this case including cases in which photographs of genitalia were sent, invitations to masturbate, etc. The degree of interference in the present case is not so extreme, but it is significant.

[104] The victim of this offence was a child under the defendant’s care and supervision. I have already alluded to the victim’s own description of the impact this offence had on her. It speaks eloquently to the harm caused by luring itself, by a teacher engaging in grooming behaviour towards his student to facilitate sexual contact, by the manifest breach of trust inherent in this conduct irrespective of whether it progresses to actual sexual activity.

[105] In this regard, I note that the victim’s participation in the dialogue is not a mitigating factor. Mr. Ramsay was the adult in the situation and had the moral and legal obligation to stop engaging in this dialogue whether he started it or not. This is not to suggest the victim initiated the contact, but she participated in it for many months. Unfortunately, this has apparently led her to feel a sense of shame or guilt about what happened, one that is not objectively justified because she was a child of the time and it was not her responsibility to set boundaries.

(e) The Sentencing Objectives

[106] Section 718 of the Criminal Code declares that the fundamental purpose of sentencing “is to contribute... to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more…objectives…”, including denunciation, general and specific deterrence, rehabilitation and the promotion of a sense of responsibility in the offender.

[107] Because this offence involved the abuse of a person under the age of eighteen years, s. 718.01 of the Criminal Code requires that I give primary consideration to the sentencing objectives of denunciation and deterrence.

[108] This means that in determining a fit sentence I must consider factors beyond Mr. Ramsay’s personal moral blameworthiness, including the need to denounce the conduct of adults who try to lure children by electronic means and to deter like minded individuals from committing this offence.

[109] I am mindful of that a sentence can only denounce conduct and deter others to the extent that it is punitive. By definition, a deterrent sentence is more severe even than the offender might otherwise deserve, as the Supreme Court explained in R. v B.W.P., 2006 SCC 27, para. 2:

General deterrence is intended to work in this way: potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender. When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the court decides to send a message to others who may be inclined to engage in similar criminal activity. [emphasis added]

[110] While the primary sentencing objectives are denunciation and general deterrence, the other sentencing objectives remain relevant. In the final analysis, I must fashion a sentence that adequately addresses the primary sentencing goals of general deterrence and denunciation without losing sight of Mr. Ramsay’s and society’s interest in his rehabilitation and restorative principles to the extent they apply.

[111] The principle of restraint as it is expressed in s.718.2(d), i.e. that “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances” is important. The principle of restraint assumes heightened prominence for first offenders who have shown remorse and accepted responsibility. Before the imposition of a term of imprisonment, all other alternatives must be considered and if a less restrictive sanction is appropriate, it must be imposed. If two sentences are fit, the sentencing judge must impose the least onerous one: R v Hamilton (2004), 186 CCC (3d) 129, [2004] OJ No. 325 (CA), para. 96.

[112] Here a sentence of imprisonment is clearly required to adequately vindicate the primary sentencing objectives of denunciation and general deterrence. The question is whether that sentence could be served in the community (a conditional sentence) and either way, how long it should be. I must be mindful that "a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence": R v Priest, [1996] OJ 3369, (CA), p.545 [emphasis added]. The vitality of this principle was re affirmed in R v Barclay, 2018 ONCA 114, para. 50.

[113] I have considered the sentencing decisions counsel referred me to. As is generally true of a collection of range cases they vary from the present case and from each other along several axes. These include whether the Crown proceeded by indictment, whether it was a guilty plea or after a trial, the age of the victim, the explicitness of the sexual content/degree of interference, whether or not concrete steps were taken to further the goal of sexual activity, whether there was sexual activity and whether the offender had a related criminal record.

[114] Collectively these cases establish this offence generally attracts a jail sentence even when the offender has positive antecedents and is remorseful and there has been no sexual activity or specific concrete plan made in furtherance of it. Putting the conditional sentence issue to one side for the moment, the aggravating and mitigating factors in this case in the context of the various sentencing decisions counsel referred me to leads me to conclude a one-year jail sentence would strike a fit balance between the primary objectives of denunciation and general deterrence and the other relevant sentencing objectives and principles.

[115] The defence submits a 9-month conditional sentence including a strict house arrest component for much of the sentence would adequately address the primary sentencing objectives and better serve Mr. Ramsay’s rehabilitation.

[116] Under s. 742.1 of the Criminal Code, a conditional sentence is available if I am satisfied the proper sentence is less than two years, that a conditional sentence would not endanger the safety of the community and would be otherwise consistent with the sentencing principles in s. 718 to s. 718.2 of the Criminal Code.

[117] Mr. Ramsay is receiving a sentence below two years less a day and there is no suggestion he would pose a risk to the community if released. Indeed, in at least once sense, the community would be better served by Mr. Ramsay serving his sentence conditionally, as I will explain shortly.

[118] The real issue is whether a conditional sentence can adequately vindicate the primary sentencing objectives of deterrence and denunciation.

[119] There is no point in pretending that a conditional sentence and an actual jail sentence of the same length are equally punitive. A “conditional sentence, even with stringent conditions, will usually be a more lenient sentence than a jail term of equivalent duration”: R. v. Proulx, 2000 SCC 5, para. 44.

[120] But a conditional sentence with appropriately crafted restrictive (punitive) conditions is hardly toothless and sometimes it can adequately address denunciatory and deterrence objectives while also better balancing them against other important, albeit not primary, rehabilitative and/or restorative goals. A person serving a conditional sentence is serving a sentence of imprisonment in the community with the social stigma of being a convicted offender under a criminal sentence, living with prescribed conditions and supervision, is left with a criminal record, and has no benefit of parole or statutory release: Proulx, paras. 28 to 44; R. v. Beauchamp, 2015 ONCA 260, para. 380; R. v. Wismayer, [1997] O.J. No. 1380 (C.A.).

[121] The proposed nine-month conditional sentence is, to be blunt, a non-starter. As I have explained, if a conditional sentence were otherwise unavailable I would impose a jail sentence in the one-year range. As made clear in Proulx, a conditional sentence would have to carry strict conditions and last longer than the otherwise appropriate jail sentence to have comparable denunciatory and deterrent effect. The question is whether the maximum available conditional sentence, two years less a day with a house arrest condition throughout is an adequate substitute for a one-year jail sentence. By “adequate substitute” I am focusing specifically on the primary sentencing goals of denunciation and general deterrence.

[122] This is a close case, but I conclude that a conditional sentence of two years less a day containing a term of strict house arrest for the entire term of the sentence can adequately address denunciation and general deterrence and is otherwise better suited to achieving balance between those objectives and the other important goals of rehabilitation, restorative interests and promoting a sense of responsibility.

[123] The decisive factor in my assessment is that Mr. Ramsey functions as the sole caregiver for his brother. Kevin Ramsay highly depends on Mr. Ramsey for his day-to-day care. Were I to sentence Mr. Ramsay to a jail term, the community would have to assume responsibility for taking care of Kevin Ramsay for several months until Mr. Ramsay’s release on parole.

[124] A conditional sentence thus would not only spare Kevin Ramsay (who is blameless), it would also save community resources that would otherwise be expended in the complicated project of assuming responsibility for his care. Collective responsibility for people who need care because of medical disability is a core Canadian value. Letting Mr. Ramsay continue to care for his brother by imposing a two year conditional sentence thus serves not only Kevin Ramsay but also the community. A conditional sentence that relieves the community of this duty thus achieves a measure of restorative justice.

[125] I appreciate that jail sentences often have disruptive effects on the lives of family or others associated with the offender and that this is not a reason not to impose a jail sentence when it is otherwise justified. I am not imposing a two-years-less-a-day conditional sentence instead of one-year jail sentence solely because the defendant is Kevin Ramsay’s caregiver. Rather, in a close case this circumstance was the tipping point.

[126] I am satisfied that a two year sentence of house arrest, combined with the punitive impact the fact of these proceedings has had on Mr. Ramsay, including the lengthy time Mr. Ramsay spent on a restrictive bail and the collateral consequences of losing social status and employment as a teacher, would in the mind of a reasonable, informed and rational person be recognized as a sufficiently punitive response to this crime to denounce it and deter others from committing it.

[127] I impose a two-years-less-a-day conditional sentence along with the other ancillary orders sought, excepting the SOIRA and s.161 orders which will be addressed when the matter returns before me on November 3 of this year.

Released: October 16, 2023 Signed: Justice John McInnes

Footnotes

[1] “YP” are not the victim’s actual initials. A subset of the community will be familiar with the secondary school where the defendant taught and the victim attended. Although I have expurgated the name of the school in the ASF, anyone associated with the school may know Mr. Ramsay was a teacher there and might well have been able to identify the victim if I used her real initials. For that reason I refer to her as “YP” (which stands for “Young Person”).

[2] Determination of the Crown’s application for orders under sections 161 (not to attend parks/playgrounds) and s.490.012 (mandatory SOIRA order) was adjourned to November 3.

[3] At various points in the sentencing proceedings there was discussion about waiting for the Supreme Court’s decision. Ultimately, Mr. Ramsay quite understandably took the position he wanted to get on with the sentencing process so he could move ahead with his life and I respected that preference.

[4] The main issue in Morrison was whether the reverse onus created by s.172.1(3) should be struck down as a violation of ss.7 and 11(d). Section 172.1(3) provided that proof the young person was, or was represented as being, below the threshold age is proof the accused believed that person was under the threshold age, in the absence of evidence to the contrary. The Court struck down s.172.1(3) as inconsistent with sections 7 and 11(d) and not saved by s.1.

[5] Sullivan was concerned with how a superior court asked to make a declaration of invalidity pursuant to s.52 of the Constitution Act, 1982 should treat earlier decisions of other superior courts in the same province but I see no principled reason why the conception of horizontal stare decisis developed in Sullivan would not apply to the present functionally identical decision-making context. Just as a superior court “in issuing a declaration that a law is inconsistent with the Constitution and thus of no force or effect…is exercising an ordinary judicial power to determine a question of law”, a judge of this court exercising “the power to determine the constitutionality of a law where it is properly before them” exercises a judicial power to determine a question of law. It follows that “the ordinary rules of stare decisis” apply to the determination of the same question of law in subsequent cases: Sullivan, paras. 45 and 63; Lloyd, supra, para. 18.

[6] The cited history is actually that of the companion appeal, R. v. Chan, which was heard and decided together with the Sullivan appeal.

[7] I say “directly” because McKerlie J. did quote a passage from R. v. H.O., 2020 ONCJ 69 summarizing the caselaw pertaining to the constitutionality of section 172.1(2)(a) and (b) which included mention of King and Randall but not Hems.

[8] The “designated offence” here is sexual exploitation, i.e. sexual contact with a person who is 16 or 17 towards whom the accused is in a position of trust or authority.