WARNING
The court hearing this matter directs that the following notice should be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code:
(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
NEWMARKET COURT FILE NO.: CR-17-2516-00
DATE: 20200214
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
C.D.R.
Defendant
Gemma Sang, for the Crown
Richard Litkowski, for the Defendant
HEARD: January 23, 2020
REASONS FOR DECISION
Delivered Orally
DE SA J.:
Overview
[1] The Applicant, C.D.R., was charged on an indictment that he committed three offences under sections 172.1, 172.2 and 286.1 of the Criminal Code. I found him guilty of these offences on July 29, 2019.
[2] On November 28, 2019, I dismissed an application to stay the proceedings on the basis of entrapment.
[3] The Applicant is facing mandatory minimum sentences of 1 year for the offences under sections 172.1(2)(a) and 172.2(2)(a) of the Criminal Code, and 6 months for the offence under section 286.1(2)(a) of the Criminal Code.
[4] The Applicant takes the position that these mandatory minimum sentences are grossly disproportionate and therefore violate section 12 of the Charter and are not saved by section 1. He seeks a declaration that the above noted mandatory minimum sentencing provisions of the Criminal Code should be declared of no force or effect pursuant to section 52 of the Constitution Act, 1982.
Analysis
[5] A mandatory minimum sentence infringes section 12 of the Charter if it imposes a “grossly disproportionate sentence”. The test for “gross disproportionality” requires a two-sage analysis:
a) The court determines the appropriate sentence for the offender and determines whether the mandatory minimum represents a grossly disproportionate sentence when applied to the circumstances of the specific offender before the court. If so, then the mandatory minimum sentence violates section 12.
b) Second, even if the mandatory minimum does not violate section 12 on the facts of the case, the judge must consider whether the mandatory minimum sentence would be grossly disproportionate in other reasonably foreseeable cases. This involves evaluating the scope of the offence, the nature of the offenders and circumstances that it may capture, and the resulting range of fit and proportionate sentences. Based on this analysis, if in a reasonably foreseeable case, imposing the mandatory minimum would result in a grossly disproportionate sentence, then the mandatory minimum violates section 12: R. v. Morrison, 2019 SCC 15, at paras. 143-144; 167-168.
[6] 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: R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at para. 6, citing Miller v. The Queen, 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 680, at p. 688; Morrisey, 2000 SCC 39, at para. 26; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14.
[7] In assessing whether a sentence is grossly disproportionate for a particular offender the Supreme Court of Canada has set out relevant factors for consideration including: the gravity of the offence, the personal characteristics of the offender, and the particular circumstances of the case.
[8] In order to have a full contextual understanding of the sentencing provision, the Court should also consider the actual effect of the punishment on the individual; the penological goals and sentencing principles upon which the sentence is fashioned; the existence of valid alternatives to the punishment imposed; and a comparison of punishments imposed for other crimes in the same jurisdiction: Smith, supra, at paras. 90-91; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309 at para. 337; R v. Goltz, 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485 at paras. 499-500; Latimer, 2001 SCC 1, at paras. 73-78; Morrisey, supra, at paras. 108-109.
[9] Mandatory minimum sentences are susceptible to section 12 challenges because most offences under the Criminal Code can be committed in a broad array of circumstances and by a wide range of people. The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate.
[10] In Morrison, the majority declined to adjudicate on the constitutional validity of s. 172.1(2)(a) of the Criminal Code. Nevertheless, Moldaver J. identified several features of the provision which suggest that the mandatory minimum “is, at the very least, constitutionally suspect”: at para. 146.
[11] First, s. 172.1 of the Criminal Code potentially encompasses conduct 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”: at para. 146.
[12] The Supreme Court also identified the discrepancy between the 6-month minimum sentence where the Crown proceeds summarily and the 12-month minimum sentence where the Crown proceeds by indictment as a key concern from the section 12 perspective.
[13] If the sentencing floor embodied by the summary conviction mandatory minimum represents a fit sentence in at least some reasonably foreseeable cases, there will necessarily be some reasonably foreseeable cases in which the application of the higher minimum of 1 year will be disproportionate: Morrison, supra, at paras. 149-153.
[14] In Morrison, Karakatsanis J. would have found that s. 172.1(2)(a) violated s. 12 of the Charter. No section 1 Charter justification was advanced. She explained in Morrison at para. 187:
For these reasons, I would conclude that s. 172.1(2)(a) violates s. 12 of the Charter. Given the broad scope and hybrid nature of the child luring provision, it encompasses situations that can vary dramatically in the moral blameworthiness of the offender and the potential harm inflicted on the victim. An examination of the scope and potential applications of the offence, as informed by lower court jurisprudence, clearly demonstrates that short periods of imprisonment — or even conditional sentences, conditional discharges or suspended sentences — are sometimes fit and proportionate in the circumstances. Further, during the period at issue, Parliament itself contemplated that a 90-day period of incarceration would sometimes be appropriate for this offence. Sentencing someone to one year in jail when the fit and proportionate sentence would be 90 days or less is intolerable and would be shocking to Canadians. It is a cruel and unusual punishment and violates s. 12 of the Charter. [Emphasis added.]
[15] More recently in R. v. Cowell, 2019 ONCA 972, the Court of Appeal for Ontario split 2 to 1 on this constitutional issue. The majority chose not to fully consider the issue given that reasonable hypotheticals had not been advanced before the trial judge. On the specific facts before them, the majority held that the minimum was not grossly disproportionate.
[16] Trotter J.A., in the minority, chiefly for the same reasons of Justice Karakatsanis in Morrison, found the provision unconstitutional. He declined to consider the Section 286.1 issue since the trial judge did not conduct a separate constitutional analysis of this provision. In relation to s. 172.1(2)(a), he commented at paras. 104 and 106:
However, I agree with Karakatsanis J. that the mandatory minimum sentence in 172.1(2)(a) must be declared unconstitutional based on its application in reasonably foreseeable circumstances. I acknowledge that, as Moldaver J. clarified in Morrison (SCC), convictions under s. 172.1 will always be accompanied by a high level of moral blameworthiness. However, the wide range of conduct embraced by s. 172.1(2)(a), including the varied nature of the designated secondary offences, gives rise to situations in which the imposition of the one-year mandatory minimum sentence would be grossly disproportionate…
I also adopt the reasons of Karakatsanis J. in relation to the hybrid nature of the offence. As discussed, although the sentences imposed for those who pleaded guilty do not persuade me that the appellant’s sentence was too severe, the two-tiered mandatory minimum that was in place at the time the appellant was sentenced (one year vs. 90 days) demonstrates the comparative harshness of the upper tier. In combination with the expansive reach of s. 172.1, this renders s. 172.1(2)(a) grossly disproportionate in reasonably foreseeable circumstances, thereby infringing s. 12 of the Charter.
[17] The Applicant here, in reliance on these decisions, maintains that the hybrid nature of the offence renders the 1-year minimum unconstitutional given that 6-month sentences are routinely imposed for the same conduct when the Crown proceeds by way of summary conviction.
[18] The Applicant also relies on the hypotheticals advanced in the case of R. v. Badali, 2016 ONSC 788 and R. v. Lalonde, 2017 ONCS 2181, 2017 ONSC 2181.
[19] In Badali, the Court considered the constitutionality of section 212(4) of the Criminal Code [the predecessor of s. 286.1] and other related provisions. The trial judge considered the hypothetical of a young male paying for sexual services, such as a kiss, with a female person who is under the age of 18 years of age. The judge in that case noted that an instance such as this attracting the sentence imposed by the mandatory minimum would seem to be beyond the intent of the drafters of the legislation, and ultimately declared both s. 212(2) and s. 212(4) to be unconstitutional and of no force and effect.
[20] In the decision of R. v. Lalonde, the Court also found s. 212(4) to be unconstitutional and of no force and effect. Agreeing with the reasoning of the Court in Badali, the Court also posited the following hypothetical scenario: a young 18-year-old asks a 17-year-old classmate to let him see her breasts in return for $25. The offence is made out even if the girl refuses the request. But whether she refuses or acquiesces to the request, the young man faces a minimum of 6 months in prison. The Court found this to be a grossly disproportionate sentence.
[21] The Applicant submits that if you extrapolated these hypotheticals into the realm of child luring, and if these exchanges were conducted using telecommunication, then the young man would face a mandatory minimum sentence of one year.
[22] The Crown takes the position that the one-year minimum jail sentence provided for in s. 172.1(2)(a), 172.2(2)(a) and the six-month mandatory minimum jail sentence provided for in s. 286.1(2)(a) are not “grossly disproportionate”.
[23] The Crown submits that the appropriate sentence here is one of 12 months incarceration. The text messages between the Applicant and “Michelle” speak for themselves. The Applicant requested unprotected oral sex as well as unprotected sexual intercourse from both “Michelle” and her friend “Jamie”. He believed he was making an arrangement with an underaged escort for sexual services and then travelled to her hotel room in order to exchange money for sexual services from her and her underaged friend. A palpable risk of exploitation clearly existed in these circumstances.
[24] The Crown maintains that one would struggle to find members of the Canadian public at large who would find a twelve-month sentence for the offence “so excessive as to outrage standards of decency” given the high moral blameworthiness of such conduct and the pervasive social ill of child prostitution.
[25] The Crown also relies upon the recent decision in Cowell, where the Ontario Court of Appeal upheld a 12-month sentence in similar circumstances for a first offender of prior good character with family support. The majority in Cowell commented at paras. 120 and 121:
In determining whether a provision contravenes s. 12 of the Charter, the purpose of the legislation must be considered. The social reality is that “access to the Internet among Canadian children is now almost universal” and “predators lurking in cyberspace, cloaked with anonymity” are able to meet, groom, and sexually exploit vulnerable children through telecommunication: Morrison, at para. 2. Children are defenceless to the sexual exploitation of adult predators, who are only one click away: R. v. Woodward, 2011 ONCA 610, at para. 72. The harm caused by this offence is often life-altering for innocent children: Morrison, at paras. 3, 153; Woodward, at para. 76. These considerations factor into the determination of a s. 12 Charter breach.
Parliament enacted Criminal Code provisions to ensure that predators who lure children through telecommunication receive “a punishment that reflects the gravity and seriousness of the offence”: Morrison, at paras. 2-3. Luring attracts a high degree of moral blameworthiness, especially since its victims are “one of the most vulnerable groups within Canadian society – our children”: Morrison, at para. 153. I do not agree that a one-year minimum sentence would outrage the moral standards of Canadians.
[26] The Crown points out that courts owe Parliament deference in a section 12 analysis. Parliament has the power to make policy choices with respect to the imposition of punishment for criminal activities and the crafting of sentences that it deems appropriate to balance the objectives of deterrence, denunciation, rehabilitation and protection of society. As Borins Dist. Ct. J. stated in an oft-approved passage:
It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency: R. v. Guiller (1985), 1985 CanLII 5996 (ON SC), 48 C.R. (3d) 226 (Ont.), at p. 238.
[27] Sentences for child sexual offences have steadily increased in recent years. Part of this change has been brought about by Parliament’s introduction of minimum sentences and the continued expansion of those minimum sentences. These changes reflect the public’s increased demand for just forms of punishment and greater protection for children.
[28] The Crown also submits that the hypotheticals advanced by the Applicant (from Badali and Lalonde) are far-fetched and would be unlikely to result in a criminal charge and/or a prosecution.
[29] In general, I agree with the Crown. Parliament has made clear that offences involving the sexual exploitation of children are to be treated severely. As evident from Cowell, a 12-month sentence would generally be an appropriate starting point for offences of this nature.
[30] I also agree that the hypotheticals advanced from Badali and Lalonde would be unlikely to make their way through the system. Generally speaking, I expect the police would choose to charge and the Crown would choose to prosecute more serious crimes than the examples referenced in the Applicant’s hypotheticals. That said, I cannot say these hypotheticals are not within the reasonably foreseeable reach of the law. R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, para. 62. And if the Crown did choose to proceed with charges similar to the hypotheticals advanced here, and the matters came before a judge on a plea or after trial, that judge would be obliged to impose the statutory minimum. While the Crown retains a discretion to proceed, the judge would not. The resulting sentence (whether it be 1 year or even 6 months) would clearly be grossly disproportionate in the circumstances. See also R. v. JLM, 2017 BCCA 258.
[31] I am also troubled by the discrepancy between the 1-year minimum in play here as compared to the 6-month minimum when the Crown elects to proceed summarily. As the Crown confirmed, numerous cases of a very similar nature have resolved in provincial court for 6-month sentences.
[32] In this case, I asked Crown counsel why the Crown chose to proceed by way of indictment. The Crown acknowledged that there was nothing particular about the facts that would distinguish it from cases that would ordinarily proceed summarily and face the lower minimum [s. 172.1(2)(b) and s. 172.2(2)(b)].
[33] The fact that sentences of 6 months have been found to be appropriate for the exact same conduct at issue here gives me pause. How can a seemingly arbitrary imposition of an additional 6 months incarceration in this case not be grossly disproportionate?
[34] In R. v. Saffari, 2019 ONCJ 861, Henschel J. found the mandatory minimum outlined in s. 172.1(2)(a) to be unconstitutional. Much like the case here, Henschel J. found as a fact that Mr. Saffari initially believed that the person in the advertisement looked over 18 years old. During the conversation with the undercover officer, however, Mr. Safari came to believe that the person he was speaking with was only 14 years old. He still chose to communicate with her for the purpose of obtaining sexual services and attended the hotel for that purpose.
[35] Having considered the circumstances of the case and the offender, Henschel J. determined that a five-month sentence would be an appropriate and fit sentence in the circumstances. She concluded that the mandatory minimum sentence of one year was grossly disproportionate when applied to the circumstances of this offender and infringed s. 12 of the Charter. She explained at paras. 88-89:
In my view, this case is an example of where the concern expressed by the Supreme Court of Canada about the potential differential sentence to be imposed as a result of the Crown election has been manifested. Mr. Stewart candidly agreed that the Crown in factually similar circumstances has proceeded summarily and that this is a case where having regard to the circumstances of the offender and the offence, it would not have been inappropriate to proceed summarily. Had the Crown proceeded summarily, the mandatory minimum sentence would be six months, instead of 12.
In my view, sentencing Mr. Saffari to one year in jail when the fit and proportionate sentence would be five months, having regard to his personal circumstances, frailties, and the collateral consequences, is intolerable and would be shocking to Canadians. In my view to impose the one-year mandatory minimum sentence, even having regard to the gravity of the offence, is grossly disproportionate. It is not merely excessive but is a sentence that is “so excessive as to outrage the standards of decency” and “abhorrent or intolerable” to society. It is a cruel and unusual punishment and violates s. 12 of the Charter. [Emphasis added.]
[36] In R. v. Dare, Oral Reasons for Sentence dated January 3, 2019, a jury convicted the offender of offences very similar to the offences before this court. Bird J. imposed a sentence of 90 days imprisonment to be served intermittently, and to be followed by 12 months’ probation. Notably, this sentence was imposed shortly after the Ontario Court of Appeal found the mandatory minimum unconstitutional, and just prior to the decision of the Supreme Court in Morrison.
[37] The Applicant has no criminal record. Much like Mr. Saffari and Mr. Dare, the Applicant was not looking to arrange a sexual encounter with an underage girl. Rather, when presented with the opportunity by an undercover officer, he accepted it. While the nature of the police intervention was not sufficient to amount to entrapment, it clearly is relevant to the appropriate sentence in this case. Unlike in the case of Cowell where the unlawful communications went on for some days, the Applicant’s misconduct appears to be more in the nature of a serious – but brief – lapse in judgment. In my view, an appropriate sentence here would be closer to 5-6 months even taking into consideration the importance of denunciation and deterrence for these types of offences.
[38] Given that 6-month sentences are routinely being imposed for the exact same conduct, I am satisfied that a mandatory minimum of 1-year is grossly disproportionate (for both s. 172.1(2)(a) and s. 172.2(2)(a). The 1-year minimum is twice the length of sentence that is being routinely imposed for similar matters which proceed summarily. In my view, sentencing the Applicant to one year in jail when a fit and proportionate sentence for similar conduct is 6-months, is intolerable and would be shocking to Canadians.
[39] Similarly, on the basis of the hypotheticals advanced, namely the examples referenced from R. v. Badali and R. v. Lalonde, I am satisfied that the 6-month mandatory minimum stipulated in section 286.1(2)(a) of the Criminal Code is also unconstitutional. As evident from the decision in Cowell, in most cases a 6-month sentence would be low for offences captured by 286.1(2). However, there are clearly still conceivable situations where a 6-month jail sentence would be grossly disproportionate. Again, I rely primarily on the hypothetical advanced by the Applicant where a young 18-year-old asks a 17-year-old to let him see her breasts in exchange for $25. I disagree with the Crown that the 17-year-old girl showing her breasts for money would not amount to the provision of a sexual service.
[40] In Morrison, at para. 188, Justice Karakatsanis observed that “it is difficult to imagine how a mandatory minimum sentence which is found to be grossly disproportionate… could represent a justifiable infringement of s. 1 of the Charter.” In this case, the Crown does not seek to justify the infringement under s. 1 of the Charter.
[41] As explained in R. v. Lloyd, a “safety valve” to permit for an exercise in judicial discretion in an appropriate case would likely be an easy way to remedy the constitutional deficiency. However, whether Parliament should enact judicial safety valves to mandatory minimum sentences and if so, what form they should take are questions of policy that are within the exclusive domain of Parliament: R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130.
[42] The mandatory minimum sentences of 1 year stipulated in s. 172.1(2)(a) and s. 172.2(2)(a) of the Criminal Code, and the 6-month mandatory minimum sentence stipulated in 286.1(2)(a) of the Criminal Code are declared to be inconsistent with s. 12 of the Charter and not justified under s. 1 of the Charter. They are therefore declared to be of no force or effect under s. 52(1) of the Constitution Act, 1982.
Justice C.F. de Sa
Released Orally: February 14, 2020
NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.