R. v. Faroughi, 2020 ONSC 780

minicounsel

NEWMARKET COURT FILE NO.: CR-18-1796-00

DATE: 20200226

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Arian Faroughi

COUNSEL:

Kellie Hutchinson, for the Crown

Joseph Neuberger, for the Accused

HEARD: December 6, 2019

REASONS FOR SENTENCE

LEIBOVICH, J.

Overview

1Mr. Faroughi was convicted on June 19, 2019, after a trial by judge and jury of 1) communicating with a person believed to be under the age of 18 for the purposes of facilitating an offence under s. 286.1(2) of the Criminal Code; 2) communicating with a person believed to be under the age of 16 for the purposes of facilitating the offence of invitation to sexual touching, contrary to s. 152 of the Criminal Code; and 3) communicating with a person for the purpose of obtaining for consideration the sexual services of a person under the age of 18, contrary to s. 286.1(2) of the Criminal Code.

2On March 4, 2018, Mr. Faroughi, then 19, called a number listed on backpage.com. A series of text messages ensued whereby Mr. Faroughi arranged to pay for the sexual services of a prostitute for two hours at a price of $220 an hour. Part of the arrangement was that he could ejaculate four times. The escort communicated to him that she was 14 and in grade 8. Mr. Faroughi arrived at the hotel in question and was arrested by the police. He had $220 on him. The person that Mr. Faroughi was communicating with was not a 14-year-old escort. Rather, it was a police officer, Detective Cober, who, as part of “Project Raphael”, was posing as an underage escort.

3After trial, the accused brought a motion to stay on the basis that he was entrapped by the police. For reasons given in R. v. Faroughi, 2020 ONSC 407, on January 29, 2020, I dismissed the application. Submissions on sentencing were heard and the matter was adjourned to today, February 26, 2020 for my reasons. Counts 1 and 2 each have a mandatory minimum sentence of one year while count 3 has a mandatory minimum sentence of six months. The defence brings a constitutional challenge to strike out the mandatory minimum sentences as violating section 12 of the Charter and seeks a non-custodial sentence. The Crown supports the mandatory minimum sentences but states that I need not address the issue as the offences merit a one-year sentence.

Preliminary Issue – Which charges should be stayed pursuant to the Kienapple Principle

4The Crown and the defence agree that there should not be convictions on all three counts that flowed from the March 14, 2018 interaction with the undercover officer, but they differ on which counts should be stayed. The defence submits that counts 2 and 3 should be stayed while the Crown submits that count 1 should be stayed. Different Project Raphael cases have dealt with this issue differently.

5The Kienapple principle, which emanated from R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729, states that there ought not to be multiple convictions for the same “delict”, “matter”, or “cause”. For Kienapple to apply there must be both a sufficiently close factual nexus and a sufficiently close legal nexus between the two offences in the circumstances: see R. v. McGuigan, 1982 41 (SCC), [1982] 1 S.C.R. 284; R. v. Krug, 1985 2 (SCC), [1985] 2 S.C.R. 255; R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480; R. v. Provo, 1989 71 (SCC), [1989] 2 S.C.R. 3; R. v. Langevin (1979), 1979 2999 (ON CA), 47 C.C.C. (2d) 138 (Ont. C.A.); and R. v. R.K. (2005), 2005 21092 (ON CA), 198 C.C.C. (3d) 232 (Ont. C.A.); R. v. Meszaros, 2013 ONCA 682, 309 C.C.C. (3d) 392 at para. 30. The struggle in applying the Kienapple principle “is often of academic interest only, as its outcome has no impact on the actual sentence to be served by the accused.”; R. v. Ramage, 2010 ONCA 488, [2010] 257 C.C.C. (3d) 261 at para. 59. This case is typical in that Mr. Faroughi’s sentence will not be affected, irrespective of how I apply the Kienapple principle.

6It is usually not difficult to ascertain if there is a sufficient factual nexus. As stated in R. v. Meszaros at para. 32, “the more difficult question in the Kienapple analysis is whether there is a sufficient legal nexus between the offences, i.e., whether the offences constitute a single wrong or delict”. This requirement focuses on the presence of distinguishing elements between the offences rather than on the presence of common elements. As Dickson C.J.C. put it in R. v. Prince at para 32:

I conclude, therefore, that the requirement of sufficient proximity between offences will only be satisfied if there is no additional and distinguishing element that goes to guilt contained in the offence for which a conviction is sought to be precluded by the Kienapple principle.

7The rationale for this two-fold approach is to ensure that the Kienapple principle is not too easily triggered by a simple finding of a factual nexus. Parliament is entitled to abrogate the application of the Kienapple rule and to provide for the registration of more than one conviction where offences overlap but where the offender has been guilty of more than one wrong, or to impose an additional penalty for what is, in effect, an aggravated form of the underlying indictable offence; see R. v. Prince, at p. 498; R. v. McGuigan, at p. 318; R. v. Krug, at pp. 263-64; and R. v. R.K., at paras. 52-53. An approach that founds the application of Kienapple on a simple factual connection might well frustrate Parliament's legitimate intentions in that regard.

8Put another way, the Kienapple rule will apply where “the offences charged do not describe different criminal wrongs, but instead describe different ways of committing the same criminal wrong”; R. v. R. K. at para. 37. The Kienapple rule will not apply where the offences are designed to protect different societal interests; R. v. Prince at para 39.

9Whether one offence has distinct additional elements that are not present in the other is not always easy to decipher. As Doherty J.A. stated in R. v. R.K. at para. 36:

When will it be said that there are no “additional and distinguishing elements” between offences? As indicated in Prince at pp. 49-50, there can be “no precise answer” to this question. The sufficiency of the legal nexus between offences will depend on an interpretation of the statutory provisions that create the offences and the application of those statutory definitions to the circumstances of the case.

Applying the Kienapple Principle

10In my view, counts 1 and 2, the two luring counts, in the circumstances of this case, cover the same criminal wrong and are designed to protect the same societal interest against the criminal use of telecommunications. In this case, the jury was satisfied that in essence the two counts were the same, given the nature of the sexual activity that the accused sought to procure, but with respect to count 2 the jury had to be satisfied that the accused believed that the person he was communicating with was less than 16 years old.

11In my view, between count 1 and count 2, count 1 should be stayed as count 2 is more reflective of the gravamen of the offence in this case, as the jury was satisfied that the accused believed that the person he was talking to was under the age of 16 as opposed to under the age of 18.

12Count 3 is not an included offence with respect to count 2.¹ The Kienapple rule will not apply where the different offences protect different societal interests. While both these offences target the criminal use of communications, they have different, although related, societal interests; R. v. Dare, unreported decision Justice Bird, dated January 3, 2019. Section 286.1(2) seeks to protect against the evils of child prostitution, while section 172.1 seeks to protect, as set out below, the criminal use of the internet and other similar devices to sexually exploit children. I also note that in a similar case under Project Raphael, convictions were entered on both s. 172.1 and s. 286.1(2) charges: see R. v. Cowell, 2019 ONCA 972.

13Therefore, I will stay count 1 and proceed to sentencing Mr. Faroughi on counts 2 and 3.

Does the one-year mandatory sentence in s. 172.1(2)(a) violate s. 12 of the Charter?

14In determining whether a mandatory minimum sentence violates s. 12 of the Charter, one must apply the analytical framework set out in R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773, at para. 46. The court must first determine what constitutes a proportionate sentence in view of the objectives and principles of sentencing in the Criminal Code, and then determine whether the mandatory minimum sentence requires the judge to impose a sentence that is grossly disproportionate to the fit and appropriate sentence. If not, the court must then consider whether the mandatory minimum sentence would be grossly disproportionate in reasonably foreseeable circumstances.

Does the mandatory minimum sentence require me to impose a sentence that is grossly disproportionate to the fit and appropriate sentence?

What is a fit sentence in this case?

15The first stage of the analysis is to determine what would be a fit sentence in this case, having regard to the circumstances of the offence and the offender, the aggravating and mitigating factors, the range of similar sentences, and the principles and objectives of sentencing.

Circumstances of the Offence

16Mr. Faroughi testified at trial that he was just goofing around, did not intend to have sex with the escort, did not believe that she was under 18, and that he only went to the hotel to pay her the money because he was afraid that she would track him through his cell phone number. The jury was instructed that they must be satisfied beyond a reasonable doubt that the accused believed that the person was under the age of 18 for counts 1 and 3, and 16 for count 2, and that the purpose of the communication was to have sexual relations with that person. As stated, the jury convicted Mr. Faroughi of all counts.

17Mr. Faroughi also testified at trial that he was a first-year bio-medical student at Ryerson. He wanted to go to medical school. He met a casual friend, Yusaf, at a bar to blow off steam. He was feeling pressure from school. He did not have a girlfriend or much life experience. They had a couple of beers and two shots. Yusaf suggested that he contact an escort agency. He googled a couple, found two numbers, and one of them texted him back. Mr. Faroughi testified that in the beginning Yusaf told him what to text. He did not know what “hh”, “fh” or “gfe” meant. He testified that while he texted information about location, rates and services, he was just goofing around. He had no intention of obtaining sexual services from the escort. He had never used such a service.

18To the extent that it is not already apparent from the jury’s verdict, I am satisfied beyond a reasonable doubt that it was Mr. Faroughi, not Mr. Yusaf, who was the driving force behind the text exchange with Detective Cober that night. I do not accept that it was Mr. Yusaf who told him what to text. Mr. Faroughi testified in cross-examination that his friend left him at 4:09 p.m. The nature of the texts that were sent after 4:09 p.m., after his friend left, are virtually the same as before he left. It was Mr. Faroughi, by himself, who, after ending the transaction, changed his mind, called back and texted that he was coming at 4:31 p.m. I do not have to decide whether Mr. Yusaf was even present that day, but I have no doubt, as I mentioned, that Mr. Faroughi was the driving force.

Circumstances of the Offender

19Mr. Faroughi is currently 20 years old and was 19 at the time of the offence. He grew up in a close-knit, loving family. He has a younger sister. His father is an engineer and his mother is a veterinarian. He has a great relationship with his parents. Sex was a taboo topic at home and not discussed. His family moved from Tehran to Montreal in 2010, when he was 12 years old, and then moved to Toronto in 2014. Mr. Faroughi did well in school. He learned French in Montreal and adapted well there, and he adjusted to Toronto. He is currently in the middle of a biomedical engineering program at Ryerson and he wishes to become a neurosurgeon one day.

20Dr. Gojer assessed Mr. Faroughi. Dr. Gojer’s report is found at Tab 8 of Exhibit 1. Mr. Faroughi underwent phallometric testing in Dr. Gojer’s laboratory. There was no indication of any pedophilia.

21Mr. Faroughi, after he was charged but prior to his trial, attended for counselling with Dr. Kalia. Dr. Kalia conducted a psychological assessment on Mr. Faroughi and then Mr. Faroughi started a sex offence therapy session. He participated in both phases of the program and spent over 44 hours doing so. Dr. Kali’s report is summarized in Dr. Gojer’s report, in part, as follows:

Mr. Faroughi’s PAI profile does not indicate presence of any clinical psychopathology. His interpersonal style is friendly and extroverted. He usually presents a cheerful and positive picture in the presence of others. He prefers activities that bring him into contact with others and sees himself as a person with many friends and as one who is comfortable in most social situations. He is worried and concerned about this current issues. Of particular relevance in the present context, there was no evidenced of any mental illness, personality disturbance, impulsivity, substance abuse, antisocial attitudes or behaviours.

When he became involved in phase II, Mr. Faroughi indicated at the outset that he was contesting his charges. He maintained that it was his belief that the person communicating with him was above the age of 18 years.

In phase II of the therapy, he has able to build on the psycho-educational strategies learned in Phase-1 and apply that knowledge to the dynamics his offending.

He actively participated in treatment and was insightful of the inappropriateness of engaging in contact with underaged children and the social and moral implications of prostitution. He also talked about events and factors surrounding the offending and appreciated why he allowed himself to engage with the alleged underaged female.

22Dr. Gojer stated that the accused was not at a high risk to re-offend. He found that even though Mr. Faroughi still maintained that he did not believe that the person was under the age of 18, he was regretful and remorseful and understands the harm of underage prostitution. Dr. Gojer concluded as follows:

Though Mr. Faroughi maintains that he did not believe that the person he was communicating with was an underaged female, he is able to see beyond his attitude towards his findings of guilt on the charges in that sexual contact with underaged persons is legally and morally wrong, and that since being charged is also aware of the law with respect to prostitution and purchase of sexual services from anyone below the age of 18 years. He is regretful and remorseful for his behaviour and understands the harm associated with underage prostitution. He is also very distraught as to the position he placed himself in and his family. He feels that he has let down his parents in a very major way and brought enormous shame on his family.

Mr. Faroughi has engaged in extensive therapy, both group and individual, and continues to engage in individual counseling with a forensic psychologist. He is aware of the boundaries that need to be maintained with respect to interactions with anyone for a sexual purpose and how the law impacts on those interactions. He seems wiser and is gaining mature views and is highly motivated never to put himself in a similar situation again.

Mr. Faroughi does not suffer from any psychiatric conditions, personality disorders or psychopathy that would cause any concerns. He has no prior history of criminality and he is essentially a prosocial young man attempting to educate himself and find a niche in society. He has very supportive and prosocial parents. I do not see him as suffering from pedophilia, hebephilia or any sexual deviation. I see his actions at the time of his offending as a product of very poor judgment as an immature sheltered 19-year-old male with virtually no prior sexual experiences. The charges and findings of guilt have been an eyeopener for him and he has become highly sensitized to the issues that led to his offending and seems to be highly motivated never to put himself in a similar situation again. I do not see him as posing any risk to society.

23After he was charged, from April 7, 2018 until October 27, 2019, Mr. Faroughi performed over 313 hours of community service for Habitat for Humanity.

24Mr. Faroughi’s parents provided a letter of support for their son. There is no issue that they care deeply for him even during these trying times. Mr. Faroughi spoke at the sentencing hearing and apologized for his actions and said that they were the actions of an immature person.

Aggravating and Mitigating Factors

25The aggravating factors revolve around the offence itself. Mr. Faroughi arranged to have extensive sexual activity with a 14-year-old. The activity included kissing, oral sex, sexual intercourse, and the opportunity to ejaculate four times in two hours. The mitigating factors are as follows:

The accused is a youthful first offender. He was only 19 at the time of the incident;
The accused has strong family support;
The accused has been assessed by Dr. Gojer as posing no risk to the public. Dr. Gojer found that although the accused maintained that he believed that the person was over the age of 18, the accused was remorseful for his actions and aware of the dangers of child prostitution;
The accused has proactively taken 44 hours of sexual offence treatment;
The accused has proactively logged over 313 hours as a volunteer for Habitat for Humanity; and
The accused has strong prospects of rehabilitation.

Analysis

26 Section 718 of the Criminal Code sets out the following in terms of the purpose of sentencing:

The fundamental purpose of sentencing is to protect society and 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 and the harm done to victims or to the community that is caused by 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 or to the community.

27Further, s. 718.1 of the Criminal Code provides that:

A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

28Section 172.1 was created to deal with the very real problem of child predators who use the anonymity of communicating electronically as a method to lure, entrap and abuse our most precious resource, our children. The nature of these telecommunications, whether through internet chat rooms, text exchanges, Instagram, Snapchat, or other platforms, is that it allows the predator the opportunity to groom and prepare their victim for abuse. The telecommunications allow the predator to cast his or her net widely and provides them with unprecedented opportunity for interacting with children, a private portal, as it were, that would be blocked in the physical world. Section 172.1 is an inchoate offence designed to stop the predators before they start. As stated by Moldaver J. in R. v. Morrison at paras. 39 and 40:

Before turning to the three issues raised on appeal, I find it useful to first describe the nature and purpose of the child luring offence. Parliament created this offence to combat the very real threat posed by adult predators who attempt to groom or lure children by electronic means. As this Court explained in Levigne, the offence seeks to protect 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": para. 24.

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: see Legare, at para. 25; R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 20, citing A. Ashworth, Principles of Criminal Law, (5th ed. 2006), at pp. 468-70. 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: see Legare, at para. 25. The offence reflects Parliament's desire to "close the cyberspace door before the predator gets in to prey": para. 25.

29Karakatsanis J. echoed similar thoughts in R. v. Morrison at para. 176.: See also R v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173 at paras 20 and 36; R. v. Legare, 2009 SCC 56, 2009 S.C.C. 56, [2009] 3 S.C.R. 551 at paras 25 and 26; R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3 at para. 24.

30Given the seriousness of the offence, Karakatsanis J. acknowledged in R. v. Morrison that where the offence has proceeded by indictment, the appropriate range is between 12 to 24 months. In R. v. Cowell, Trotter JA, speaking for the entire court on this point, found that the 12-month sentence that Mr. Cowell, a first-time offender, received was within the appropriate range. He stated at para. 103:

Ultimately, a sentence of 12 months’ imprisonment is within the range identified by this court, which was acknowledged by Karakatsanis J. in Morrison (SCC). Given the high degree of moral blameworthiness reflected in the appellant's conduct, it cannot be said that a sentence of 12 months' imprisonment is grossly disproportionate, even for a first offender in the appellant's circumstances. His conduct must be denounced. Moreover, it is hoped that this sentence will deter others who consider using the internet as a means of sexually exploiting children: see Criminal Code, s. 718.01; R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at para. 16; R. v. J.S., 2018 ONCA 675, 142 O.R. (3d) 81, at paras. 55, 93-94.

Also see R. v. Jarvis (2006), 2006 27300 (ON CA), 211 C.C.C. (3d) 20 (Ont. C.A.), at paras. 27 and 31; and R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 58).

31Mr. Faroughi, like Mr. Cowell, is a first-time offender and has no criminal record. However, while the absence of a criminal record is a factor to be considered, the highly culpable behaviour that Mr. Faroughi engaged in requires the imposition of a custodial sentence. A review of the Project Raphael cases that I have been provided, and that have been referenced in other cases, shows that offenders who receive lower, more lenient sentences between the three to seven-month range tended to involve “guilty pleas with supporting psychological reports that addressed risk factors” (see R. v. Cowell at para. 101) or individuals who faced immigration consequences; see R. v. Dare, R. v. Safari, 2019 ONCJ 861. Mr. Faroughi did not plead guilty. Although the absence of a guilty plea is not an aggravating factor, “the appellant has deprived himself of any potentially mitigating value that accompanies this manner of dealing with his charges”: R. v. Cowell, at para. 102.

32Counsel for Mr. Faroughi’s request for a non-custodial sentence is simply not appropriate given the seriousness of the offence and the typical range for these offences. While I disagree with Counsel for Mr. Faroughi that a non-custodial sentence is appropriate in this case, I do agree that there are other circumstances that may reduce a sentence for these types of cases below the typical range of 12-24 months. As stated by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089 at para. 57:

Where sentencing ranges are concerned, although they are used mainly to ensure the parity of sentences, they reflect all the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case:

Even when an appellate court has established a range, it may be that a fact pattern will arise, which is sufficiently dissimilar to past decisions that the “range”, as it were, must be expanded. The fundamental point is that a "range" is not a straitjacket to the exercise of discretion of a sentencing judge. (R. v. Keepness, 2010 SKCA 69, 359 Sask. R. 34, at para. 24).

33In this case we have a number of mitigating factors that do serve to reduce the Mr. Faroughi’s sentence to below the typical 12-24 months range. Mr. Faroughi, like Mr. Cowell, has the support of his family. He also has excellent prospects of rehabilitation. He was only 19 at the time of the offence. He was an adult, but a young adult who had just started his post secondary education. Dr. Gojer, found him to be immature and sheltered.

34Dr. Gojer’s report was filed on consent at sentencing. Mr. Faroughi maintained the same position with Dr. Gojer and Dr. Kalia, that he did not believe that the person he was communicating with was under the age of 18. Dr. Gojer did not accept Mr. Faroughi’s position, but nevertheless found, after a full assessment, that Mr. Faroughi posed no risk to society. The Crown does not challenge this finding. In addition, Mr. Faroughi has already undergone extensive sex offence therapy treatment to ensure that whatever drove him to commit the offence will not re-occur. Furthermore, as perhaps a way to make amends for his behaviour, Mr. Faroughi has volunteered at Habitat for Humanity.

35Balancing these mitigating factors against Mr. Faroughi’s “highly culpable conduct” (R. v. Cowell at para. 100) in that he arrived at a hotel expecting to purchase extensive sexual activity from a 14-year-old, in my view, an appropriate sentence would be seven months.

Is a seven month sentence grossly disproportionate to the mandatory minimum sentence of 12 months?

36The fact that the mandatory minimum would require me to impose a sentence five months longer than what I determined was fit does not automatically make the sentence grossly disproportionate. Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. As stated by C.J. McLachlin in R. v. Nur at para. 44:

Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality in sentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that may deprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range. They may, in extreme cases, impose unjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle of proportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing.

37Therefore, the court must determine if the sentence imposed is not just disproportionate but grossly disproportionate. “Grossly disproportionate” is a high bar to meet. As stated by Benotta J.A. in R. v. Cowell at para. 119:

A mandatory minimum sentence violates s. 12 of the Charter if it is grossly disproportionate: Morrison, at para. 164. Section 12 of the Charter prohibits any “cruel and unusual treatment or punishment.” The “gross disproportionality” test that has developed under s. 12 presents a high bar: Morrison, at para. 165. The punishment must be “so excessive as to outrage standards of decency” (citations omitted): R. v. Smith, 1987 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1072; see also Miller v. The Queen, 1976 12 (SCC), [1977] 2 S.C.R. 680, at p. 688. Moreover, the threshold for gross disproportionality captures conduct that Canadians would find “abhorrent or intolerable”: R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90, at para. 26.

38Having regard to the purpose of the legislation and the high moral blameworthiness of the offence, imposing a sentence five months higher than what I determine would be a fit sentence would not outrage the moral standards of Canadians. The mandatory minimum sentence does not require me to impose a grossly disproportionate sentence in this case.

Would the mandatory minimum sentence result in a grossly disproportionate sentence in reasonably foreseeable circumstances?

Positions of Counsel

39It is the defence’s position that looking at reasonably foreseeable circumstances, the one-year mandatory minimum would result in a grossly disproportionate sentence. It cannot be that where the mandatory minimum sentence has been struck down in a case where a sexual offence has been committed, it can nevertheless survive when applied to the preparatory stage. There are numerous other luring cases where a sentence far below the one-year minimum has been imposed. In addition, the proposed “reasonable hypothetical” is not only reasonable but based on an actual case. The Crown submits that there does not have to be symmetry between the luring offences and the secondary offences because what must be remembered is that the section prohibits the criminal use of a telecommunication device. The secondary offences and their sentences are separate considerations. The other luring cases are of minimum importance given that they occurred before the elements of the offence and the high moral blameworthiness of the offence was cemented in R. v. Morrison. In addition, older cases with lower sentences are no longer relevant given that the maximum sentence has been increased to 14 years.

The Legal Principles

40The Supreme Court of Canada in R. v. Nur, at paras. 61, 68, 72, 74, 75 has provided the following guidance on how to approach the reasonably foreseeable circumstances analysis:

the focus must be on the other conduct that the section could capture;
while some personal circumstances of the offender can be considered to give context to the conduct at issue, one cannot use “personal features to construct the most innocent and sympathetic case imaginable - on that basis almost any mandatory minimum could be argued to violate s. 12 and lawyerly ingenuity would be the only limit to findings of unconstitutionality”;
the emphasis is on reasonable, “far-fetched or remotely imaginable examples should be excluded from consideration”; and
the court is allowed to consider examples captured in real life cases.

41I agree that luring cases that occurred before the Supreme Court of Canada released its decision in R. v. Morrison are of limited assistance when considering the constitutionality of the one-year mandatory minimum. In many cases, the accused was convicted because of failing to take reasonable steps. The high moral blameworthiness of the accused, made clear by the Supreme Court of Canada’s decision in R. v. Morrison, may or may not have been present in those cases. Furthermore, the Court’s decision and other legislative changes show that the tariff for luring offences has increased. The maximum sentence is now 14 years. The mandatory minimum sentence for summary offences has been increased to six months. Earlier cases simply do not reflect this new reality; see R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81 at paras. 58-59; R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481 at para. 81. I agree with the following comments by Henschel J in R. v. Safari, 2019 ONCJ 861 at para. 46

In my view, the amendments introducing mandatory minimum sentences and increasing the maximum sentences reflect Parliament’s view of the gravity of the offence and these changes have an upward pull on the range of sentences that should be imposed by courts, irrespective of whether the mandatory minimums remain intact, due to the greater maximum penalty. By creating mandatory minimum sentences, and by raising the maximum sentence to 14 years, where the Crown proceeds by indictment, Parliament made conditional sentences unavailable. Folina and El-Jamel are of limited usefulness, beyond establishing that as a rule, the sentence imposed on convicted child lurers is generally at least 12 months to 2 years, and, in light of the subsequent legislative changes, the range may now be higher.

42There have been a number of cases where, even when it was established that the accused knew that the victim was underage, a sentence below the one year minimum sentence was imposed due to the personal circumstances of the accused. However, the following comments of Benotta J.A.’s, for the majority, in R. v. Cowell at paras. 121 and 122 cast considerable doubt on whether those situations in a post Morrison world, would result in a grossly disproportionate sentence:

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.

In my view, the one-year minimum sentence does not meet the standard of gross disproportionality

43The Supreme Court of Canada in R. v. Morrison, and Trotter J.A. in R. v. Cowell, noted the wide range of conduct covered by section 172.1. Karakastanis J. and Trotter J.A. would have struck down the mandatory minimum in section 172.1(2) as a result of the wide-ranging conduct covered by the section. Mandatory minimum sentence provisions that apply to offences that can be committed in various ways, under a broad array of circumstances, and by a wide range of people are constitutionally vulnerable; R. v. Lloyd, 2016 SCC 13, 2016 S.C.C. 13, [2016] 1 SC.R. 130. The luring offences cover a broad array of conduct in three respects:

The same minimum penalty applies regardless of whether the person believed the person was under the age of 18, 16 or 14;
Using a telecommunication device to lure the person can itself happen in many different ways and quickly, over a few texts, or over a prolonged period of weeks or even months; and
The secondary offences themselves contain a wide range of conduct. In addition, the secondary offences themselves have different, and in some cases lower mandatory minimum sentences, or the mandatory minimum sentence for these hands on offences have been struck down; R. v. B.J.T., 2019 ONCA 694.

44Moldaver J., speaking for the majority in Morrison, and Benotta J.A. speaking for the majority in Cowell, found that the case before them, for different reasons, did not lend itself to a proper analysis on the issue. In Cowell, the majority did leave open the possibility that the one-year mandatory minimum could be grossly disproportionate due to the wide-ranging conduct it covers but left the issue to be decided for another day. Benotta JA stated at para. 123 that:

Nor do I agree that in the present appeal this court can confidently rely on scenarios that were not argued in the court below, or properly raised in submissions before this court. Morrison left open the possibility that s. 172.1(2)(a) is constitutional. As Moldaver J. said, "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, at para. 153. Consequently, this court should have the benefit of full submissions before deciding the constitutionality of s. 172.1(2)(a). To properly consider the constitutionality of the mandatory minimum under s. 172.1(2)(a), the court must have the benefit of reasonable hypotheticals fully argued. In the absence of this record, it is inappropriate for this court to decide the constitutionality of s. 172.1(2)(a) on this appeal: Morrison, at para. 155.

Analysis

45Section 172.1(1)(a) states that it is an offence for any person to communicate by means of a telecommunication with any person who the accused believes is under the age of 18 for the purpose of facilitating the following offences:

a) Sexual exploitation, contrary to section 153 of the Criminal Code;

b) Incest, contrary to section 155 of the Criminal Code;

c) Child pornography, contrary to section 163.1 of the Criminal Code;

d) Parent/Guardian procuring sexual activity, contrary to section 170 of the Criminal Code;

e) Householder permitting prohibited sexual activity with a person under the age of 18, contrary to section 171 of the Criminal Code;

f) Trafficking, contrary to section 279.011 of the Criminal Code;

g) Material Benefit from Trafficking, contrary to section 279.02 of the Criminal Code;

h) Withholding or destroying documents to facilitate a trafficking offence, contrary to section 279.03 of the Criminal Code;

i) Child Prostitution, contrary to section 286.1(2) of the Criminal Code;

j) Material Benefit from prostitution, contrary to section 286.2(1) of the Criminal Code;

k) Material Benefit from child prostitution, contrary to section 286.2(2) of the Criminal Code; or

l) Procuring a person to be a prostitute, contrary to section 286.3(2) of the Criminal Code.

46Section 172.1(1)(b) states that it is an offence for any person to communicate by means of a telecommunication with any person who the accused believes is under the age of 16 for the purpose of facilitating the following offences:

a) Sexual interference, contrary to section 151 of the Criminal Code;

b) Invitation to sexual touching, contrary to section 152 of the Criminal Code;

c) Bestiality, contrary to section 160(3) of the Criminal Code;

d) Indecent Act, contrary to section 173(2) of the Criminal Code;

e) Sexual Assault, contrary to section 271 of the Criminal Code;

f) Sexual Assault Causing bodily harm or with a weapon, contrary to section 272 of the Criminal Code;

g) Aggravated Sexual Assault, contrary to section 273 of the Criminal Code; or

h) Abduction, contrary to section 280 of the Criminal Code.

47Section 172.1(1)(c) states that it is an offence for any person to communicate by means of a telecommunication with any person who the accused believes is under the age of 14 for the purpose of facilitating the offences of child abduction contrary to section 281 of the Criminal Code.

48If the Crown proceeds summarily for any of the luring offences, the minimum punishment is six months in jail. If the Crown proceeds by indictment for any of the luring offences the minimum punishment is one year in jail.

49In R. v. B.J.T. the Ontario Court of Appeal struck down the one-year mandatory minimum for sexual interference. I agree that at first blush, it seems odd that a mandatory minimum sentence for the actual commission of the sexual offence against a child could fail Charter scrutiny, but the mandatory minimum sentence for an inchoate preparatory offence could survive Charter scrutiny. However, the peculiarity dissipates when one looks at why the Court of Appeal struck down the one-year mandatory minimum for section 151 in R. v. B.J.T. The Court found at para. 74 that applying the mandatory minimum to the following situations would result in the imposition of a grossly disproportionate sentence:

A romantic relationship similar to that which existed between the offender and the victim, but for a period of several days, which only involved kissing and touching;
An isolated caress, over the clothes, on the thigh or buttocks, not in the context of an abuse of authority, where the sexual touching is found to be without consequences for the victim; and
A romantic relationship in which the victim is 15 ½ years old and legally unable to consent at the beginning of the relationship, and the relationship continues after she reaches 16 years old.

50Section 172.1 requires the use of a telecommunication to facilitate the commission of the section 151 offence. One cannot simply graft the use of a telecommunication to any of the above scenarios and determine that there is a violation of section 12. The critical word is reasonable and none of the above scenarios have been seen in the luring context nor is it reasonable to conclude that such a scenario is reasonably foreseeable. Therefore, when assessing a reasonably foreseeable circumstances that commences as a real case in a non luring context, the court must still determine that it is reasonably foreseeable that the suggested circumstance will arise in the context of a s.172.1 offence.

The defence proposed reasonably foreseeable circumstance

51The defence has proposed the following reasonably foreseeable circumstance as an example of conduct that could be caught by section 172.1, demonstrating that the one-year mandatory minimum sentence results in a grossly disproportionate sentence and violates section 12 of the Charter.

Angela, an 18-year-old girl, is communicating via text with her friend, Pamela, who is 17 years old. Angela and Pamela are both prostitutes. Through text messaging, they agree to rent a hotel room to commit acts of prostitution. Angela agrees to rent the room, and both will share the expense.

Angela is thus guilty of being a householder permitting prohibited sexual activity under s. 171 C.C. which is a predicate offence for being found guilty under s. 172.1(1)(a) C.C.

Under s. 172.1 C.C., it does not matter that Angela did not recruit Pamela, or that they did not have a relationship of exploitation, nor that Angela did not receive financial compensation above a reduction in the cost of the room they rented for their trade. Provided that Angela and Pamela used a telecommunication device to ‘facilitate’ the plan, Angela would be captured by the provisions of s. 172.1 C.C. and would be subject to the 1-year minimum sentence.

52Counsel for Mr. Faroughi have submitted that this is a reasonable example because it is taken from a real case, R. v. Johnson, 2019 ONCJ 224, and modified slightly to have the arrangement done via texts. In R. v. Johnson, Ms. Johnson was found guilty of being an occupant of a hotel room while knowingly permitting two 15-year-old females to use the room for acts of prostitution, contrary to section 171 of the Criminal Code.

53In R. v. Johnson, the two 15-year old females had run away from home and set up a prostitution business in a hotel room at Motel 6. They were assisted in this business by a number of adult males. Ms. Johnson was not involved in recruiting or encouraging the victims to enter into the business of prostitution. She only became involved once the girls had already started working out of Motel 6. One of the adult males recruited Ms. Johnson because he needed someone to extend the room rental. He was unable to do so himself because he did not have any valid identification, and the other adults who had been involved had disappeared after the first night. Ms. Johnson had a serious cocaine addiction and the adult male had offered Ms. Johnson a location where she could freely use cocaine without her parents' knowledge. Ms. Johnson, who was 19 at the time, accepted his invitation.

54It was never disputed that Ms. Johnson knew that the two victims were providing sexual services for money from the same hotel room. Ms. Johnson stayed there with them for two days. She did not receive any money from the sexual services provided by the victims. Justice Konyer struck down the one-year mandatory minimum sentence.

55Crown counsel agrees that the proposed reasonably foreseeable circumstance is a scenario that could come before the court, but objects to Counsel for Mr. Faroughi using “personal features to construct the most innocent and sympathetic case imaginable”. I do not that think Counsel for Mr. Faroughi has fallen into that trap. The offences allow for a conviction if the intended victim is younger than 18, no matter how much younger. In addition, I think it is a realistic scenario to consider the situation where two prostitutes close in age, one an adult and the other not, plan to share expenses. In the proposed hypothetical, I do not think having the accused as a prostitute necessarily diminishes her moral culpability. The 18-year-old is facilitating the underage person in committing acts of prostitution. However, like in R. v. Johnson, the accused in the hypothetical presented did not encourage the other to be a prostitute, take part in the exploitation of the underage victim, or profit from her work as a prostitute. I agree with Crown counsel that this scenario could come before the court. It is certainly conceivable, even likely, that such an arrangement could be done via texts thus bringing it within the ambit of s.172.1(1)(a). I also believe that it would be conceivable that if such a situation arose, charges could be laid under this section even if it the offence is also covered by s. 172.2(1)(a). What can be seen from the Project Rafael cases, including this case, is that numerous charges are laid with respect to the same factual scenario. In fact, in R. v. Cowell the accused was charged with committing an offence under s.172.1(1)(a) and s.172.2(1)(a) before the later was stayed pursuant to R. v. Kienapple by the trial judge; unreported decision of the trial judge dated May 15, 2017.

56In both cases the accused used a tele-communication device with a person known to the accused to be under 18 to facilitate the commission of a listed offence. This behaviour is serious and carries with it a high degree of moral blameworthiness. Crown counsel submits that the crime is in the use of the tele-communication device. Crown counsel further submits that the secondary offence is irrelevant for the purposes of sentencing as there would be a separate criminal offence and criminal sanction if the secondary offence is in fact committed. I disagree. Which offence the accused wanted to facilitate by using the tele-communication device is critical in assessing the moral culpability of the accused and his or her risk to society and prospects of rehabilitation. In the hypotheticals put forward, the accused is not attempting to touch the child sexually or have the child touch her sexually or pave the way for these acts to commit in the future. I agree that the actions of the accused assist the underage prostitute in committing acts of prostitution with others. However, in these scenarios the accused is not encouraging the victim to engage in an act of prostitution, nor did she benefit from those acts. The conduct is far removed from the behaviour that is at the core of the conduct that is meant to be captured by s.172.1 and the impetus for the creation of the offence. As stated by Justice Moldaver in R. v. Morrison at para 39, “Parliament created this offence to combat the very real threat posed by adult predators who attempt to groom or lure children by electronic means.” These proposed scenarios demonstrate that the mandatory minimum sentence can result in a grossly disproportionate sentence.

57Imposing a one-year minimum sentence is grossly disproportionate in reasonably foreseeable circumstances, thereby infringing on s. 12 of the Charter. Consequently, I declare s. 172.1(2)(a) of no force or effect: Constitution Act, s. 52(1).

Does the six-month mandatory sentence in s. 286.1(2)(a) violate s. 12 of the Charter

58I have determined that a fit sentence in this case is seven months. Given my conclusion it is unnecessary to address whether the six-month mandatory sentence in s. 286.1(2)(a) violate s. 12 of the Charter; R. v. Cowell, at para. 8; R. v. Hewitt, 2018 ONCA 561.

Conclusion

59For the reasons given, I sentence the accused as follows:

(a) Count 2 – 7 months;

(b) Count 3 – 7 months concurrent;

The Honourable Justice H. Leibovich

Released: February 26, 2020

NEWMARKET COURT FILE NO.: CR-18-1796-00

DATE: 20200226

ONTARIO

SUPERIOR COURT OF JUSTICE