CITATION: R. v. Anderson, 2016 ONSC 7501

COURT FILE NO.: 15-70000144-0000

DATE: 2016/12/22

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

NORWAYNE ANDERSON

Defendant/Applicant

Megan Stephens, for the Crown/Respondent

Jennifer Penman, for the Defendant/Applicant

HEARD: November 1, 2016.

MCWATT, J:

JUDGMENT: CONSTITIONALITY OF S. 742.1 OF THE CRIMINAL CODE

INTRODUCTION

[1] Norwayne Anderson was charged with six counts alleging various sexual assaults that occurred between 1998 and 2010 in relation to three complainants. He was found guilty, by a jury, on May 27, 2016, of four counts of sexual assault and one count of sexual exploitation.

[2] The applicant now challenges the constitutionality of s. 742.1 of the Criminal Code, as it read from November 30, 2007 to November 20, 2012, which prohibited the imposition of a conditional sentence of imprisonment where an offender has been convicted of a “serious personal injury offence” (SPIO) as defined by s. 752 of the Code. Section 752 defines an SPIO to include the offence of sexual assault. As a result, a conditional sentence is not available in relation to two counts of sexual assault which occurred sometime between August 2009 and August 2010 involving Mr. J.O..

[3] A conditional sentence is not statutorily barred in relation to the convictions regarding J.K. and M.K..

[4] Mr. Anderson raises two constitutional arguments. First, the inclusion of all SPIO’s in the section is overbroad to the extent that it precludes the imposition of conditional sentences. The provision captures people it was never intended to capture - offenders who do not pose a threat to public safety or security. Laws that curtail liberty in a way that is overbroad do not conform to the principles of fundamental justice and constitute a violation of section 7 of the Charter.

[5] Second, section 742.1 constitutes cruel and unusual punishment contrary to section 12 of the Charter. Forcing a custodial term of imprisonment onto an offender who could otherwise serve his sentence in the community, results in a grossly disproportionate sentence. This is so for the applicant, given his particular circumstances, and also for reasonably hypothetical offenders.

[6] The applicant maintains that resort to section 1 of the Charter cannot save either violation.

THE FACTS

[7] J.K. was sixteen years old in the summer of 1998 when the applicant sexually assaulted him. The victim had gone to the applicant’s home to have photos taken of himself by Mr. Anderson – standard industry practice at the time. J.K. was wearing underwear. The applicant asked him if he had shaved his pubic hair for the photo shoot. The victim responded that he had not, but the applicant approached J.K. and pulled the elastic forward on the underwear and looked down at his genitals.

[8] M.K. is J.K.’s younger brother. He was also sixteen years old when the applicant sexually assaulted him in the summer of 2000. The sexual assault took place in Mr. Anderson’s home when M.K. was there for a photo shoot. M.K. was wearing just his underwear. The applicant approached him and pulled M.K.’s underwear down. The applicant told M.K. that he needed to trim his pubic hair. He then took hold of M.K.’s penis and tried to masturbate and arouse him. The incident lasted about five to ten minutes. Mr. Anderson told M.K. that he needed to be comfortable with his sexuality. The jury found that the applicant was in a position of trust or authority in relation to M.K. when the touching took place and found him guilty of sexual assault and sexual exploitation.

[9] J.O. was 24 years old when he met Mr. Anderson in the summer of 2009. Shortly after, Mr. Anderson sexually assaulted J.O. during a photo shoot in his studio. J.O. was wearing underwear. The applicant reached out and adjusted the victim’s penis over the underwear. The second sexual assault took place one evening in the autumn of 2009 when the two were in Mr. Anderson’s office. While J.O. was sitting in a chair, the applicant placed his hand over the victim’s crotch and began to rub it. Mr. Anderson then unzipped the victim’s pants, took hold of his penis and began to stroke it under his underwear. This lasted for about five minutes.

ANALYSIS

A. Section 742.1 and Section 7 of the Charter

[10] The applicant must prove that “the right to life, liberty and security of the person” has been violated in a manner that is contrary to the “principles of fundamental justice”.

[11] The Crown does not dispute that s. 742.1 engages the right to liberty as the section bars judges from imposing a conditional sentence of imprisonment on those convicted of an SPIO as defined by s. 752. Assuming that those offenders will be incarcerated, as opposed to being sentenced to a less punitive sanction, this limits their liberty. The Crown’s position in this case is, however, that appellate authority would not support the imposition of a conditional sentence in the circumstances of these offences and this offender - even if such a sentence were available. The Crown will be asking for a 2-year penitentiary sentence followed by 3 years of probation.

[12] With the Crown’s concession about the applicant’s s. 7 Charter rights being engaged, the issue, then, is whether the deprivation of liberty is contrary to the principles of fundamental justice because s. 742.1 is overbroad.

Overbreadth

[13] A law is overbroad where it has effects that bear no relationship to its objectives (R. v. Heywood, 1994 CanLII 34 (SCC), [1994] 3 S.C.R. 761 at pp. 792-793; Canada (Attorney General) v. Bedford, 2013 SCC 72, at para. 101, 112-119, 123). In R. v. Moriarty, 2015 SCC 55 at para. 26-32, the Supreme Court of Canada set out that a court seeking to identify a law’s purpose for an overbreadth analysis should determine the “main thrust of the law in precise and succinct terms.” Mr. Anderson maintains that s. 742.1 was enacted to preclude the imposition of conditional sentences for the most serious crimes “for the purpose of public safety and security”.

The Purpose of s. 742.1

[14] I find that the amendment of s. 742.1 targets more than public safety and security concerns. Parliament’s purpose in amending it was to bar the use of conditional sentences for serious offenders in order to emphasize denunciation and deterrence and to contribute to both respect for the law and public safety and security.

[15] To determine Parliament’s intent, courts are to consider the words used and the scheme and object of the provision (R. Hutchison, 2014 SCC 19 at para.16). To that end, reference is made to the legislative history of a provision, including Hansard evidence and committee debates (R. v. Summers 2014 SCC 26 at para. 51).

(i) Introduction of Conditional Sentences

[16] Conditional sentences were first introduced in Canada in September 1996 as part of Bill C-41. Parliament chose not to exclude any specific offence from the conditional sentencing regime at that time. A conditional sentence was an available sanction provided the offence was not punishable by a minimum term of imprisonment, the sentence was less than two years and serving the sentence in the community would not endanger the safety of the community.

[17] A year after the conditional sentence was introduced, Parliament passed Bill C-17, which amended s. 742.1 to further require that a conditional sentence be consistent with the fundamental purpose and principles of sentencing as set out in s. 718 to 718.2 of the Criminal Code (R.S.C., 1985, c. C-46, s. 742.1, as it appeared on 25 April 1997).

[18] In R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, Chief Justice Lamer considered conditional sentences in the context of Parliament’s introduction of them in 1996. He concluded that they were aimed at reducing the use of prison as a sanction and also to expand the use of restorative justice in sentencing. He reasoned that “[t]he conditional sentence is a meaningful alternative for less serious and non-dangerous offenders.” (Ibid at para. 14-21). Justice Lamer held, however, that section 718 – and the fundamental purpose of sentencing, which is “to contribute … to respect for the law and maintenance of a just, peaceful and safe society” required that a conditional sentence should be more onerous than probation or it “would not provide sufficient denunciation and deterrence, nor would they be accepted by the public.”(Ibid at para. 29 – 30).

[19] After noting that Parliament could have easily excluded specific offences … but chose not to, Justice Lamer considered whether the courts should create judicial presumptions against the imposition of conditional sentences for certain offences, such as sexual offences against children or manslaughter. He acknowledged that the gravity of an offence was clearly relevant to determining whether a conditional sentence is appropriate, but held that both judicially created presumptions against conditional sentences and starting points for certain offences “would thwart Parliament’s intention of not excluding particular categories of offences from the conditional sentencing regime.” (Ibid at para. 88).

[20] The Chief Justice did note, however, that “there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.”(Ibid para. 106).

(ii) Concerns about the use of the conditional sentence of imprisonment

[21] In the years following 1996, conditional sentences were used on a regular basis in Canadian courts. However, their use for certain offences were scrutinized and a number of provinces, including Ontario, raised concerns about the use of conditional sentences for serious offences, including cases of sexual assault involving young persons. Parliament was called on to amend s. 742.1. These concerns were part of the impetus behind Bill C-9 (Alberta Justice and Attorney General, The Conditional Sentence of Imprisonment: The Need for Amendment, 17 June 2003).

(iii) Bill C-9 and the amendment to s. 742.1

[22] On November 30, 2007, Bill C-9 came into effect. It amended s. 742.1 to exclude a number of offences from the conditional sentencing regime. A conditional sentence was no longer available for those convicted of an SPIO. Section 752 defines one as follows:

An indictable offence … involving (i) the use or attempted use of violence against another person, or (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person, and for which the offender may be sentenced to imprisonment for ten years or more, or

An offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm), or 273 (aggravated sexual assault).

[23] The Parliamentary Secretary to the Minister of Justice, MP Rob Moore, introduced Bill C-9 for second reading in the House of Commons on May 29, 2006. He said:

Bill C-9 flows from the government’s clear commitment to Canadians to ensure that house arrest is no longer available for those who commit serious or violent offences. As stated in section 718 of the Criminal Code, the fundamental purpose of sentencing is to “contribute … to respect for the law and the maintenance of a just, peaceful and safe society.”

Conditional sentences were never intended for serious offences. …

However, in recent years we have witnessed far too many instances of improper use of this type of sentence. The public has a great deal of concern about cases in which persons convicted of very serious offences have been permitted to serve their sentences in the community, often in the luxury of their own homes and with minimal safeguards to ensure compliance with the conditions of their sentence. Canadians find it hard to understand how such sentences comply with the fundamental purpose and principles of sentencing (House of Commons Debates, Vol. 141, No. 028 (29 May 2006) at 1621).

[24] Other comments in the same debates by MP Moore about the types of offences for which the conditional sentence would no longer be available explain that the focus was not solely on violent offenders who pose safety concerns, but also about ensuring respect for the law.

In far too many cases, accused persons who have engaged in significant frauds, often involving breaches of trust, have walked out of court into relatively comfortable house arrest situations. These offenders would no longer have that option available to them.

The bill is based on the principle that conditional sentences ought to be used only in situations for which they were originally intended. This is for relatively minor cases, cases deserving lenience and cases which do not offend the community’s sense of justice.

Conditional sentences would no longer be available for sexual offences. …

Conditional sentences would also no longer be available for other personal injury offences, such as impaired driving causing bodily harm, or death and serious property and administration of justice offences, like robbery, arson and theft over $5,000.

No longer would sentences be available for very serious crimes such as criminal negligence causing death, aggravated assault, aggravated sexual assault, sexual assault with a weapon, kidnapping, attempted murder and torture. Until this bill is made law, each and every one of those heinous crimes could, according to our current law, result in a conditional sentence or house arrest. …

This government has done more than simply recognize and talk about the problem, as our predecessors did. With the introduction of Bill C-9, we have taken steps to solve the problem once and for all. We call on all parties to join with us in working toward a system that Canadians can have faith in because they know it is serving their best interests. (Ibid at pp. 1621-22).

[25] In the House of Commons Debates (Ibid at 1635-1637), Minister of Justice, the Hon. Vic Toews, also emphasized that the amendments would “screen out the most serious or violent cases” from the conditional sentence regime. He explained that the use of the sentences in cases of “serious and violent offenders … has caused a great deal of concern in communities where offenders have ended up serving their sentences.” After referencing three cases where conditional sentences had been imposed in what he described as serious cases, the Minister of Justice explained how Bill C-9 sought to remedy those concerns:

These are just three instances of the inappropriate use of conditional sentences that have resulted in the sanction being held in disrepute. The courts have in fact found that these are applicable, so it is the responsibility of this Parliament to change the law to make sure this does not happen again. …

Conditional sentences are sometimes an appropriate sentencing tool, but they should not be used for serious offences. I am convinced that the appropriate use of conditional sentence orders will strengthen confidence in the sanction itself and in the administration of justice.

We cannot overstate the importance of public confidence in the criminal justice system. Safe homes and safe streets have been defining characteristics of the Canadian way of life. As Canadians, we have until the last few years rightly been proud of our sense of community, safety and personal security. This recent but widespread decline in public confidence in the criminal justice system in general, and the sentencing, correctional and parole processes in particular, must be addressed.

(iv) Appellate Interpretation of the Purpose of s. 742.1

[26] The Ontario Court of Appeal considered Parliament’s purpose for amending s. 742.1 in R. v. Lebar, 2010 ONCA 220. At paragraph 47, after reviewing the history of the legislation, Justice Epstein concluded:

Based on this history, I conclude that the object and scheme of the relevant provisions of the Code, as well as Parliament’s intention in enacting them, was to reduce judicial sentencing discretion by eliminating the availability of conditional sentences for crimes of violence within a certain set of criteria. …

To be true to Parliament’s intention, the concept of violence must be given a broad interpretation.

[27] Justice Epstein, in fact, found that the purpose of the legislative went beyond just concerns about public safety and security. It was meant to reduce judicial sentencing discretion in certain types of offences.

[28] In R. v. Perry, 2013 QCCA 212, the Quebec Court of Appeal considered the purpose of s. 742.1 in the context of a claim that the regime infringed ss. 7, 9 and 12 of the Charter. In dismissing the Charter challenge, the Court found that the law’s purpose went beyond the issues of safety and security. The Court found:

It is clear that Parliament’s intent was to emphasize the objectives of denunciation and deterrence for crimes involving violence or endangering the safety or lives of Canadians and that the method it chose was to rule out the very possibility of conditional sentences for such offences (Ibid at para. 70).

(v) Bill C-9 and Other Possible Sanctions

[30] Bill C-9 did not eliminate all other sentencing options for SPIO’s. It removed only the conditional sentence as an option. The Bill did not create a mandatory minimum jail sentence for SPIO’s. An offender convicted of an SPIO would still be eligible for a discharge, a suspended sentence and probation or a fine. If a period of incarceration was necessary, the offender could be sentenced to a short jail term that could be served intermittently (House of Commons Debates, supra at p. 1622) Judges have been allowed to retain discretion to impose a sentence for SPIO’s which would take into consideration different offenders and different types of offences in this category of offence. Only persons who have been convicted of an SPIO, and where a less punitive sanction such as suspended or intermittent sentence and probation would not be appropriate, are precluded from receiving a conditional sentence.

Conclusion re: s. 7

[31] This restriction, in s.742.1, on liberty can reasonably be expected to emphasize denunciation and deterrence, where appropriate, thereby enhancing both public confidence in the justice system and public safety.

[32] Sections 742.1 deprives an offender of liberty in a manner that is rationally connected to its purpose of precluding conditional sentences for serious offenders in order to contribute to respect for the law, emphasize the objectives of denunciation and deterrence, and ensure public safety and security. Its effects are tailored to its objectives. Section 742.1 is not overbroad. Any interference with the s. 7 liberty interest is entirely consistent with the principles of fundamental justice.

B. Section 742.1 and Section 12 of the Charter

(i) Analytical Framework

[33] The Supreme Court, in R. v. Nur, 2015 SCC 15 and R. v. Lloyd, , 2016 SCC 13 has recently set out the framework for determining whether a sentence constitutes cruel and unusual punishment pursuant to s. 12 of the Charter.

[34] A sentence will infringe s. 12 if it is grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and circumstances of the offender (Lloyd, Ibid at para. 22).

[35] A law will violate s. 12 if it imposes a grossly disproportionate sentence on either the individual before the court or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others (Lloyd, supra at para. 22; Nur, Ibid at para. 77)

[36] The first step is to determine what constitutes a proportionate sentence (in terms of a “rough scale of appropriate sentence”) for the offence in light of the objectives and principles of sentencing. The court must then decide whether the impugned sentencing provision requires the judge to impose a sentence that is grossly disproportionate to the offence and its circumstances (Lloyd, supra at para. 23).

To be ‘grossly disproportionate’ a sentence must be more than merely excessive. It must be ‘so excessive as to outrage standards of decency’ and ‘abhorrent or intolerable’ to society. (Lloyd, supra at para. 23)

[37] This standard is consistent with Canadian courts’ repeated recognition that Parliament is owed deference in its policy decisions concerning punishment for criminal activities (Lloyd, supra at para. 44; R. v. Guiller (1985), 1985 CanLII 5996 (ON SC), 48 C.R. (3d) 226 (Ont. Div. Ct.), at p. 238).

(ii) Is Section 742.1 Grossly Disproportionate as Applied to the applicant?

[38] Mr. Anderson has been convicted of five sexual offences involving three complainants, which took place over more than a ten year period. Two of the complainants were sixteen years old when Mr. Anderson sexually assaulted them. He was also convicted of one count of sexual exploitation in relation to M.K. - or was in a position of trust over M.K. when he touched him sexually. Mr. Anderson was the modeling agent to J.K. and J.O. when he sexually assaulted them as well. The Crown will argue that he was also in a position of trust or authority in relation to them. On the evidence before me from the trial, I would agree.

[39] At this point in the sentencing, there has been some evidence adduced by the defense about Mr. Anderson’s background in the form of letters of reference. The numerous letters support the applicant and, together, suggest that he is a contributing member of society. I also know that he has no criminal record. Otherwise, submissions have yet to be made about the appropriate sentence.

[40] Sexual offences were not presumptively excluded from the conditional sentence regime first enacted by Parliament, however Canadian appellate courts have routinely found incarceration is necessary and appropriate for sexual offenders - particularly where the complainant is young and/or vulnerable or where the offender was in a position of trust or authority in relation to the complainant.

[41] In both R. v. Wells (2000 SCC 10) and R. v. R.A.R., (2000 SCC 8), two companion decisions released with Proulx involving the offence of sexual assault, the Supreme Court upheld the trial judges’ decisions to impose sentences of incarceration, given the pressing need for denunciation and deterrence in those cases (Wells, supra at para. 47; R.A.R., supra at paras. 24-35).

[42] The Court of Appeal for Ontario has also repeatedly held that “a conditional sentence should rarely be imposed in cases of sexual touching of children by adults, particularly where … the sexual violation is by a person in a position of trust” (R. v. A. F. R., 2007 ONCA 114 at para. 2; R. v. D.M., 2007 ONCA 690 at para. 4; R. v. R.W.D., 2005 CanLII 20711 (ON CA), [2005] O.J. No. 2385 (C.A.) at para. 11-12).

[43] In this case, a custodial sentence would not “be so excessive as to outrage the standards of decency” or “grossly disproportionate to what would have been appropriate.” A custodial sentence of imprisonment may be entirely fit and may be what is required given the need for denunciation and deterrence in cases like this.

(iii) Does Section 742.1 Lead to Grossly Disproportionate Sentences in Reasonably Hypothetical Offenders?

[44] Mr. Anderson has proposed two reasonable hypothetical scenarios to show that s. 742.1 would lead to grossly disproportionate sentences. They are the following:

a) The aboriginal offender

The offender is aboriginal. Both he and his grandparents attended residential schools and he battles alcoholism and addiction issues. As a result of his experience at the residential school he has a phobia of small, confined spaces. One night while he was under the influence of alcohol and drugs, the offender pinched the buttocks of a female patron at a bar. The patron complained to the police and the offender was charged with sexual assault, contrary to section 271 of the Code. No defences apply. The offender is extremely remorseful. He pleads guilty to the offence. However, because the offence falls within the definition of a “serious personal injury offence”, the offender is ineligible for a conditional sentence. Absent s. 742.1, the fit and appropriate sentence for this offence and this offender is a conditional sentence. This is particularly so given that section 718.2(e) of the Code specifically mandates that sentencing judges consider all available sanctions other than imprisonment especially in the case of aboriginal offenders.

b) A youthful, physically disabled first offender

The offender is a youthful first offender who is physically disabled. He has never been charged with an offence, let alone been to jail. He is in first year university and attends a party at the home of a female friend with whom he is in the early stages of a romantic relationship. Both parties have been drinking. At some point in the evening, the young woman suggests that the offender follow her to her bedroom. Once in the bedroom the two sit on her bed and begin to kiss. After several minutes, the offender puts his hand underneath the young woman’s shirt and begins to move his hand up her stomach towards her breasts. The young woman immediately grabs the offender’s hand, pushes him away, and flees the bedroom. The young man is charged with attempt sexual assault and is convicted after trial. The offence falls within the definition of a “serious personal injury offence” pursuant to section 752 of the Code. His physical disability makes it difficult for him to remain in small enclosures for prolonged periods of time. His disability requires that he take frequent walks. The failure to do so results in physical pain. Despite the fact that the principal of restraint applies to him by virtue of his age and his status as a first offender, he remains ineligible for a conditional sentence.

[45] The applicant submits that a custodial sentence for these offences would be a grossly disproportionate one. That may be so, but the submission does not include a consideration that various other sentences, other than incarceration, would be available to the sentencing judge in these situations. Parliament has left judges with the discretion to impose other less punitive sanctions for serious offenders. The Supreme Court set out in Lloyd, at para. 3, that providing “residual judicial discretion to impose a fit and constitutional sentence” can act as a constitutional safeguard in relation to possible s. 12 breaches.

[46] I agree with the Crown’s submission that in both the hypothetical situations, the facts of the offence are de minimis in nature and charges may not even have been laid in each case. If charges were laid, a prosecutor might well exercise her discretion to divert these charges out of the criminal justice system. If such charges did proceed to trial or to resolution by way of a guilty plea, the appropriate sentence would likely fall somewhere in the range of a discharge or possibly a suspended sentence and probation. Given the full range of sentencing options available to a judge in both reasonably foreseeable situations, s. 742.1 cannot be said to require the imposition of a grossly disproportionate sentence.

[47] Section 742.1 is consistent with the guarantee against cruel and unusual punishment contained in s. 12 of the Charter.

CONCLUSION

[48] The application is dismissed.

McWatt, J.

Released: December 22, 2016.

CITATION: R. v. Anderson, 2016 ONSC 7501

COURT FILE NO.: 15-70000144-0000

DATE: 2016/12/22

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

Crown/Respondent

– and –

NORWAYNE ANDERSON

Defendant/Applicant

REASONS FOR JUDGMENT

McWatt, J.

Released: December 22, 2016.