COURT FILE NO.: 16-26
DATE: 20200911
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ROGER REID
Defendant
Stephanie Venne, for the Crown
Gordon Cudmore and Perrie Douglas, for the Defendant
HEARD: September 1, 2020
K.A. GORMAN
[1] On December 7, 2018 I found the defendant guilty of one count of sexual exploitation, following a four-day judge alone trial. From time to time the matter was adjourned at the request of defence counsel. In March of 2020 the COVID-19 virus caused the Superior Court of Justice to be closed. All lines of business were cancelled.
[2] On September 1, 2020 I heard submissions from counsel on sentencing. A conviction pursuant to s. 153 of the Criminal Code of Canada carries a mandatory minimum sentence of one year in prison. On notice to the Crown, counsel for the defence brought an application to strike down s. 153 of the Code as a breach of the defendant’s right to be protected from cruel and unusual punishment, pursuant to s. 12 of the Charter of Rights and Freedoms. Further, the applicant submits that the infringement is not a reasonable limit that can be justified under the Charter.
SECTION 12 – The Gross Disproportionality Standard
[3] Section 12 of the Charter provides that, “everyone has the right not to be subjected to any cruel and unusual treatment or punishment”. The imposition of a sentence following conviction for a criminal offence is a “punishment” within the meaning of s. 12.
[4] As the court sated in R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14:
The test for whether a particular sentence constitutes cruel and unusual punishment is [page106] whether the sentence is grossly disproportionate: R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045. As this court has repeatedly held, to be considered grossly disproportionate, the sentence must be more than merely excessive. The sentence must be "so excessive as to outrage standards of decency" and disproportionate to the extent that Canadians "would find the punishment abhorrent or intolerable": R. v. Wiles, [2005] 3 S.C.R. 895, 2005 SCC 84, at para. 4, citing Smith, at p. 1072, and Morrisey, at para. 26.
(a) Further, as the court stated in R. v. Nur, 2015 SCC 15, 2015 SCC15 at para.39:
This court has set a high bar for what constitutes "cruel and unusual ... punishment" under s. 12 of the Charter. A sentence attacked on this ground must be grossly disproportionate to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the applicant: R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1073. Lamer J. (as he then was) explained at p. 1072 that the test of gross disproportionality "is aimed at punishments that are more than merely excessive". He added, "[w]e should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation". A prescribed sentence may be grossly disproportionate as applied to the applicant before the court or because it would have a grossly disproportionate impact on others, rendering the law unconstitutional.
[5] The test for “gross disproportionality” has two steps:
In the first step the court must consider whether the imposition of the impugned sentencing provision constitutes “cruel and unusual punishment” as against the specific applicant being sentenced. A sentence will constitute “cruel and unusual punishment” if it is grossly disproportionate, in the context of the offence and the applicant, having regard to a number of factors, including (i) the gravity of the offence; (ii) the personal circumstances of the applicant: (iii) the actual effect of the punishment on the applicant; and (iv) the goals and principles of sentencing.
If the impugned sentencing provision is not shown to be grossly disproportionate in its application to the particular applicant, the court must move on to the second step of the analysis.
[6] In the second step of the analysis, the court must consider whether the impugned sentencing provision is grossly disproportionate when applied in “reasonable hypothetical” scenarios.
In Nur (supra) at para. 52, the court held:
A few years later in R. v. Goltz, 1991 51 (SCC), [1991] 3 S.C.R. 485, the court, per Gonthier J. for the majority, confirmed that a s. 12 review of mandatory minimum sentencing laws may look at cases other than that of the applicant, and commented on the scope of that review. Laws should not be struck down as unconstitutional on the basis of examples that were unlikely ever to arise. The focus must be on "reasonable hypothetical circumstances, as opposed to far-fetched or marginally imaginable cases": p. 506 (emphasis in original) […]
[7] Further, in R. v. Goltz 1991 51 (SCC), [1991] 3 S.C.R. 485 at paras. 18, 76 and 87 the court limited its second stage analysis to the specific offence that triggered the mandatory minimum sentence before it.
[8] Accordingly, the analysis in the present case must be confined to s. 153 of the Criminal Code.
First Stage of the Gross Disproportionality Analysis: Particularized Inquiry
[9] In R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252 (ONCA) at para. 90[^1] the court held that “gravity of the offence”:
[…] refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence. For example, in drug importation cases, the nature and quantity of the drug involved will impact on the gravity of the offence. Some of the factors which increase the gravity of the offence are set out in s. 718.2(a).
[10] In the present case the applicant is to be sentenced for the sexual exploitation of a student he assisted while a teacher at Arthur Voaden Secondary School. The aggravating factors were the obvious breach of trust exhibited by the defendant, the age of the victim, the evidence of grooming and the post offence contact with the victim despite a clear court order.
[11] The offence with which the applicant has been charged, and to which he has been found guilty, is a straight indictable offence, punishable by a maximum sentence of 14 years in prison.
[12] As the Supreme Court of Canada has said in R. v. Friesen 2020 SCC 9:
Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. Our society is committed to protecting children and ensuring their rights and interests are respected (Baker v. Canada (Minister of Citizenship & Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817 (S.C.C.), at para. 67). As Otis J.A. stated in R. v. L. (J.) (1998), (sub nom. R. v. L. (J.-J.)) 1998 12722 (QC CA), 126 C.C.C. (3d) 235 (C.A. Que.) [hereinafter L. (J.-J.)], [TRANSLATION] "the protection of children constitute[s] one of the essential and perennial values" of Canadian society (p. 250). Protecting children from becoming victims of sexual offences is thus vital in a free and democratic society (R. v. Mills, 2019 SCC 22 (S.C.C.), at para. 23).
[13] As stated in Nur (supra) at paras, 86 and 88, the moral culpability element is about the mental state required by the offence: “[...] An intention to bring about a prohibited consequence ranks at the top of the criminal law hierarchy of blameworthiness or moral culpability.”
[14] To subject the applicant to mandatory minimum sentences, the Crown must prove that the specified aggravating factors exist.
[15] The court must also examine the personal circumstances of the applicant. This stage of the analysis starts with a comparison of “the mandatory minimum sentence to the sentence that would have been imposed under a sentencing scheme that was identical to the existing scheme, save for the requirement of the mandatory minimum”: Nur (supra) at para. 104.
[16] The applicant is a first offender. Due to his conviction his career plans have undoubtedly been impacted. Further, the media attention that followed him, clearly caused him shame and embarrasment.
[17] The issue of course, is not whether the mandatory minimum sentence is higher, but rather whether it is “grossly disproportionate to punishment that is appropriate”.[^2]
[18] Section 12 of the Charter imposes a constitutional baseline, and accordingly the threshold for demonstrating that a particular sentence is “grossly disproportionate” is a strict one. Every disproportionate or excessive sentence will not be found to be a constitutional violation. As the Supreme Court of Canada held in Steel v. Mountain Institution, 1990 50 (SCC), [1990] 2 S.CR. 1385, at paras. 80-81:
80 It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions of s. 12 of the Charter. The test for determining whether a sentence is disproportionately long is very properly stringent and demanding. A lesser test would tend to trivialize the Charter.
81 As well, it should not be forgotten that there is in place a method whereby appellate courts can review sentences to ensure that they are appropriate. In R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, Lamer J. set out the strict test for reviewing a sentence under s. 12 of the Charter. At page 1072 he wrote:
• The test for review under s. 12 of the Charter is one of gross disproportionality, because it is aimed at punishments that are more than merely excessive. We should be careful not to stigmatize every disproportionate or excessive sentence as being a constitutional violation, and should leave to the usual sentencing appeal process the task of reviewing the fitness of a sentence. Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the applicant as to be grossly disproportionate.
[19] The Court of Appeal for Ontario has held in R. v. Barua, 2014 ONCA 34, [2014] O.J. No. 248:
[…] a sexual assault on a young victim in the circumstances of this case would normally attract a medium to high range reformatory sentence even for a first offender.
[20] The rationale for this position is simple, as the court stated in R. v. D.D. (2002), 2002 44915:
We as a society owe it to our children to protect them from the harm caused by offenders like the appellant. Our children are at once our most valued and our most vulnerable assets. Throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and as such, they make easy prey. People like the appellant know this only too well and they exploit it to achieve their selfish ends, heedless of the dire consequences that can and often do follow.
[21] In the circumstances of this case, considering the particular circumstances of the applicant and the aggravating factors, I am not satisfied that the mandatory minimum sentence is “grossly disproportionate”.
[22] Accordingly, I move on to the second stage of the analysis.
Second Stage of the Gross Disproportionality Analysis: Reasonable Hypotheticals
[23] The burden is on the applicant to identify reasonable hypothetical scenarios in which the impugned law would give rise to a punishment that is not simply harsh, but so grossly disproportionate that it warrants the extreme remedy of striking down the law: Goltz (supra) at para. 45, 85.
[24] In Nur (supra) at paras. 54-65 the Supreme Court of Canada affirmed that courts should not test the constitutionality of legislation under s. 12 of the Charter based on “marginal”, “far-fetched” or remote” or “extreme” fact patterns. Further, the court refined the hypotheticals to ones based on “reasonable foreseeability”.
[25] The court went on to state that while the use of personal circumstances of hypothetical applicants may be considered, using personal features to construct the most innocent and sympathetic case is to be avoided.[^3]
[26] The applicant has not advanced any hypothetical scenarios where the mandatory minimum sentence in s. 153 (1.1)(a) of the Criminal Code would violate s. 12 of the Charter. Rather at paragraph 17 of the applicant’s factum it is stated:
The applicant is as well positioned as would be any reasonable hypothetical set out in R. v. Nur (supra) and R. v. Lloyd[^4]. However, Nur involved a mandatory minimum for the possession of a prohibited weapon and Lloyd involved the mandatory minimum punishment for the possession for the purpose of trafficking in narcotics. Neither case dealt with sexual exploitation.
[27] The applicant fails on both steps of the analysis.
[28] The applicant has not established that s. 153 of the Criminal Code violates s. 12 of the Charter.
[29] The constitutional application is accordingly dismissed.
[30] I turn now to the appropriate sentence to be imposed.
[31] In determining an appropriate sentence, the court must be mindful that the fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) To denounce unlawful conduct;
(b) To deter the offender and other persons from committing offences;
(c) To separate offenders from society, where necessary;
(d) To assist in rehabilitating offenders;
(e) To provide reparations for harm done to victims or to the community; and
(f) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.[^5]
[32] However, as Chief Justice Lamer stated in R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, (1996), 105 C.C.C. (3d) 327, at paragraph 92:
Sentencing is an individualized process, and the search for a single appropriate sentence for a similar applicant and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of accepted sentencing goals will depend on the just needs and current conditions of and in the particular community where the crime occurred.
[33] While Mr. Reid is a first time offender, the extreme grooming behaviour, together with the post-offence conduct that was clearly an attempt to reunite with the victim and/or circumvent the course of justice, a strong message of denunciation must be sent.
[34] The offender is sentenced to 18 months in jail. During your incarceration, there will be an order pursuant to s. 743.21 of the Code prohibiting you from communicating directly or indirectly with Z.A.
[35] Pursuant to principles as articulated in R. v. Kienapple[^6] the count of sexual assault is stayed.
[36] Following the term of incarceration, Mr. Reid will be placed on probation for a period of 12 months. The terms are as follows:
Report in person to a probation officer within two working days of your release;
Reside as directed;
Take whatever treatments your probation officer may recommend;
No contact, directly or indirectly with the victim Z.A., or any member of his immediate family;
Not to be within 250 metres of any place where you know any of the aforementioned persons reside, work or attend school;
Not to be in contact, by any means, or in the company of any males under the age of 18, unless approved of in writing by your probation order; and
No weapons.
[37] There will be a DNA order (primary designated).
[38] SOIRA order for 20 years.
[39] Order pursuant to s. 161 (1)(b) of the Code prohibiting the applicant from seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust and authority towards persons under the age of 18 years for a period of 20 years (s.161(1)(b)).
Justice K.A. Gorman
Released: September 11, 2020
COURT FILE NO.: 16-26
DATE: 20200911
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ROGER REID
REASONS FOR JUDGMENT
Gorman, J.
Released: September 11, 2020
[^1]: See also Nur (supra) at para. 67.
[^2]: Nur (supra) at para. 39.
[^3]: Nur (supra) at paras. 73-76
[^4]: 2016 SCC 13
[^5]: S. 718 Criminal Code of Canada
[^6]: 1974 14 (SCC), [1974] S.C.J. No. 76