COURT FILE NO.: CR-16-2295
DATE: 20220204
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
SIVARATNAM SINNAPPILLAI
Defendant
Kellie Hutchinson for the Crown
Michael A. Romoff for Mr. Sinnappillai
HEARD: December 16, 2021
reasons for sentence
BOSWELL J.
OVERVIEW
[1] Mr. Sinnappillai was caught up in a police sting known as “Project Raphael” in the early spring of 2016.
[2] The sting operation was pretty straightforward. York Region police were concerned – rightly so – about underage prostitution being arranged through ads on a now-defunct website known as Backpage.com. They posted a fake ad for a sex worker identified as “Kathy”. She was described as being 18, “tight”, “brand new”, “sexy” and “young”. A phone number was provided for interested parties to contact her.
[3] Mr. Sinnappillai texted the number. Kathy was not a real person of course. Mr. Sinnappillai was unwittingly communicating with Inspector Ryan Hogan. A meeting was arranged for Mr. Sinnappillai to meet Kathy in a hotel for a half hour of “full service” sex. In keeping with the operational plan of Project Raphael, Inspector Hogan indicated to Mr. Sinnappillai that Kathy was in fact 15. Mr. Sinnappillai responded, “Don’t worry, I like”. A short time later he arrived at the hotel ready for his hook-up with Kathy. He was arrested on arrival.
[4] On July 16, 2019, following a five-day jury trial, Mr. Sinnappillai was convicted of two offences of internet child luring. Count one charged that he communicated with a person believed to be under the age of 18 for the purpose of committing an offence under s. 286.1(2) of the Criminal Code of Canada, contrary to s. 172.1(a) of the Code. Count two charged that he communicated with a person believed to be under sixteen years of age, for the purpose of committing an offence under s. 152 of the Code, contrary to s. 172.1(b).
[5] Crown counsel submits that counts one and two are essentially the same offence and arise from the same delict. She suggests that count one be conditionally stayed pursuant to the principles of R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. Defence counsel agrees. On consent, count one is conditionally stayed.
THE DELAY BETWEEN CONVICTION AND SENTENCE
[6] Mr. Sinappillai was convicted on July 16, 2019. Sentencing submissions were made some 29 months later, on December 16, 2021. This remarkable delay cries out for an explanation.
[7] Project Raphael generated a significant number of convictions. Those convictions, in turn, generated a significant number of entrapment applications.
[8] Following his conviction, Mr. Sinnappillai pursued his own entrapment application. By the time of his conviction, however, a number of other parties caught up in Project Raphael had already unsuccessfully argued entrapment applications. The issue with respect to whether the design of Project Raphael entrapped otherwise innocent persons was then before the Court of Appeal.
[9] At Mr. Sinnappillai’s request, and with a s. 11b waiver, he was remanded to September 27, 2019 to monitor the status of the Project Raphael cases on appeal. That remand was extended, for the same reason, and with a continuing s. 11b waiver, a number of times, including to October 16, 2019, November 20, 2019 and January 6, 2020. On January 6, 2020 I was unavailable due to other trial commitments. The matter was put over to March 11, 2020 for the hearing of a Crown motion to dismiss Mr. Sinnappillai’s entrapment application.
[10] On March 11, 2020, the Crown argued that other determinations about the legitimacy of Project Raphael rendered by this court bound me by virtue of the doctrines of stare decisis and judicial comity. In other words, the Crown said there was no reason for me to doubt the correctness of prior decisions of this court that the design of Project Raphael did not entrap otherwise innocent persons. The Crown argued that I was obliged to follow those decisions and pre-emptively dismiss Mr. Sinnappillai’s application.
[11] In a decision released April 7, 2020, I ruled in favour of the Crown. Based on a number of other decisions of this court, I determined that Project Raphael was a bona fide investigation, which by and large gutted Mr. Sinnappillai’s entrapment application.
[12] As at April 7, 2020, the normal operations of this court were suspended due to the impact of the COVID-19 pandemic. Mr. Sinnappillai’s sentencing was, in the circumstances, adjourned to be spoken to on June 3, 2020. That date was further postponed, due to the pandemic, to September 11, 2020.
[13] On September 20, 2020, the matter was spoken to by way of teleconference. Mr. Sinnappillai’s counsel advised that she wished an opportunity to revisit my ruling about the bona fides of Project Raphael in light of developing caselaw. On consent, and with a further s. 11b waiver, the matter was put over to November 9, 2020 for further argument.
[14] On November 9, 2020 I heard argument on the defence motion to re-open the entrapment application. Defence counsel argued that there were, by that date, inconsistent decisions about the bona fide nature of the Project Raphael investigation. On November 17, 2020 I rendered a decision in Mr. Sinnappillai’s favour. I found that a change in the jurisprudence undermined the principles of stare decisis and judicial comity that had grounded my prior decision. I ruled that Mr. Sinnappillai could proceed with his entrapment application before me. On November 19, 2020, the entrapment application, and the sentencing more generally, were adjourned to February 17, 2021 for a two-day hearing.
[15] In the meantime, the parties continued to await guidance from the Court of Appeal on the entrapment issue with respect to Project Raphael cases.
[16] On February 17, 2021, counsel advised that the Court of Appeal had finally heard the appeal relating to Project Raphael and whether it entrapped otherwise innocent people. It was determined that Mr. Sinnappillai’s application would be adjourned to April 23, 2021 to await the decision of the Court of Appeal. Counsel agreed that delay was not an issue.
[17] At April 23, 2021 the Court of Appeal’s decision remained on reserve. Mr. Sinnappillai’s entrapment application was traversed to May 26, 2021.
[18] On May 17, 2021 the Court of Appeal released its decision in R. v. Ramelson, 2021 ONCA 328. Project Raphael was determined to be a bona fide investigation; its design did not entrap otherwise innocent parties. In the face of that decision, Mr. Sinnappillai abandoned his entrapment application on May 26, 2021. His sentencing was scheduled to proceed on August 6, 2021. As an aside, I note that Ramelson and two related cases, R. v. Haniffa and R. v. Jaffer, are now before the Supreme Court in relation to the entrapment issue.
[19] In any event, before the sentencing could proceed, Mr. Sinnappillai’s counsel was appointed a justice of the Ontario Court of Justice. Mr. Sinnappillai promptly retained new counsel but that counsel needed an opportunity to get up to speed. He also asked that a pre-sentence report be ordered, which was consented to by the Crown. The sentencing was adjourned to October 27, 2021 to be spoken to, with a s. 11b waiver.
[20] The pre-sentence report was delivered to counsel on October 26, 2021. Defence counsel required a short adjournment to absorb its contents, take instructions and prepare to make sentencing submissions. In the result, the sentencing was adjourned to December 16, 2021.
THE LEGAL PARAMETERS
[21] An offender convicted of internet child luring under s. 172.1(b) of the Criminal Code is subject to a maximum penalty of fourteen years imprisonment. Section 172.1(2)(a) imposes a minimum sentence of one-year imprisonment.
[22] The constitutional status of the one-year minimum is somewhat hazy.
[23] The determination of whether a mandatory minimum sentence meets constitutional muster requires the application of the analytical framework articulated by the Supreme Court in R. v. Nur, 2015 SCC 15. First, the sentencing judge must determine what a fit and appropriate sentence is for the offender before the court and decide whether imposition of the mandatory minimum would be a grossly disproportionate sentence in the circumstances. If it would not, then the sentencing judge must go on to consider whether it would be grossly disproportionate in other reasonably foreseeable cases.
[24] Applying the framework from Nur, the Court of Appeal for Ontario struck down the mandatory minimum sentence in s. 172.1(2)(a) as unconstitutional in R. v. Morrison, 2017 ONCA 582. Justice Pardu, for a unanimous court, held that the minimum sentence was grossly disproportionate to what would otherwise have been a fit and appropriate sentence for Mr. Morrison.
[25] Morrison was appealed to the Supreme Court by both the Crown and the accused. One of the Crown’s grounds of appeal was that the Court of Appeal erred in finding the mandatory minimum in s. 172.1(2)(a) unconstitutional. The Supreme Court ultimately sent the case back for a new trial for reasons not germane to this sentencing. In terms of the mandatory minimum, Justice Moldaver, writing for the majority, expressed the view that it would be “unwise” to decide whether the minimum sentence ran afoul of s. 12 of the Charter on the record then before the court. The Court of Appeal’s ruling on the issue was, in the result, set aside and the matter remitted back to the trial judge. See R. v. Morrison, 2019 SCC 15 (hereafter “Morrison”).
[26] The issue of the constitutionality of the mandatory minimum was back before the Court of Appeal in R. v. Cowell, 2019 ONCA 972. Justice Trotter would have struck the minimum down as unconstitutional on the basis that, while not grossly disproportionate in Mr. Cowell’s case, it would be grossly disproportionate in other reasonably foreseeable circumstances. Justice Trotter was, however, in the minority. Justice Benotto, writing for the majority, agreed that a one-year sentence was not grossly disproportionate in Mr. Cowell’s case, but preferred to leave open the question of whether it might be grossly disproportionate in other reasonably foreseeable cases, because the record before the court did not lend itself to a full analysis of the issue.
[27] Subsequent to Cowell, at least two judges of this court have declared the mandatory minimum sentence provided for in s. 172.1(2)(a) to be unconstitutional. See, in particular, Justice de Sa’s decision in R. v. C.D.R., 2020 ONSC 645 and Justice Leibovich’s decision in R. v. Faroughi, 2020 ONSC 780. Both were Project Raphael cases.
[28] There are two schools of thought about the status of s. 172.1(2)(a) in light of the declarations from this court that it is unconstitutional. One school of thought is that the provision is now “off the books” and that all future cases heard by courts of concurrent or inferior jurisdiction are bound by it. See, for instance, R. v. McCaw, 2018 ONSC 3464. The other is that the ordinary principles of stare decisis apply. In other words, courts should respect earlier declarations of unconstitutionality made by other courts of concurrent jurisdiction absent a cogent reason to conclude that the earlier decision was plainly wrong. See R. v. Sullivan, 2020 ONCA 333 at para. 38. The Sullivan case was recently argued at the Supreme Court and is presently on reserve. For the time being at least, it is binding authority on this court.
[29] Neither counsel advanced arguments during the sentencing hearing about the status of the mandatory minimum and whether cogent reasons exist to conclude that the decisions in C.D.R. and Faroughi were plainly wrong. In the absence of such submissions, I am not able to say that the prior decisions are plainly wrong and consider myself bound by them according to the principles of stare decisis. I am accordingly proceeding on the basis that there is no applicable mandatory minimum sentence.
THE PARTIES’ POSITIONS
[30] The Crown initially advanced the position, in written submissions filed in advance of the sentencing hearing, that a fit sentence, having regard to Mr. Sinnappillai’s moral blameworthiness, is 2 years less a day in custody. She reduced her position to 16 months during oral submissions. In addition, the Crown seeks a year of probation; an order that Mr. Sinnappillai be registered as a sex offender for 20 years; an order that he provide a sample of his DNA; forfeiture of a cell phone and cash seized from Mr. Sinappillai at the time of his arrest; and several orders under s. 161 of the Criminal Code constraining Mr. Sinnappillai’s contact with persons under the age of 16.
[31] Crown counsel submits that sentencing ranges for other Project Raphael cases have historically ranged from 90 days (intermittent) to 14 months, with sentences in the 12-month range being most common. Having said that, the Crown contends that the Supreme Court’s decision in R. v. Friesen, 2020 SCC 9, has significantly re-set the yardsticks for sentencing in child luring cases, such that the range may now be described as 3 to 5 years.
[32] Defence counsel seeks a conditional sentence on terms left to the discretion of the court. The main thrust of his position centers around Mr. Sinnappillai’s personal circumstances, his lived experience as a refugee fleeing Sri Lanka and his responsibility as the sole supporter of a wife and two children who live in India and are entirely dependent on the money he sends them monthly for their support. A conditional sentence can be significantly punitive, he argues, while at the same time allowing Mr. Sinnappillai to continue to work and to support his family.
[33] Defence counsel takes no issue with the ancillary orders sought by the Crown.
[34] In reply to the defence position, the Crown argues that a conditional sentence is not available to Mr. Sinnappillai because of the operation of s. 742.1(c) of the Criminal Code. That provision removes conditional sentences from judicial consideration where the offence is one for which the maximum sentence is 14 years or life. As I noted a moment ago, the maximum sentence for child luring, pursuant to s. 172.1(2)(a) is 14 years.
[35] Section 742.1(c) was struck down by the Court of Appeal for Ontario as unconstitutional, in R. v. Sharma, 2020 ONCA, 478, at para. 180, leave to appeal to the Supreme Court granted, [2020], S.C.C.A. No. 311. For at least the time being, it is not an impediment to the imposition of a conditional sentence on Mr. Sinnappillai.
THE PRINCIPLES AND PURPOSES OF SENTENCING
[36] The objectives of sentencing are codified in s. 718 of the Criminal Code (“Cr. C.”) and include: the denunciation of unlawful conduct; general and specific deterrence; the separation of the offender from society where necessary; rehabilitation; reparation for harm done to the victims and the community; and the promotion of a sense of responsibility in offenders and acknowledgment of the harm done.
[37] The importance of these individual objectives, and how they interact, varies from case to case. It is well-settled that, in child luring cases, the key sentencing objectives are denunciation and deterrence. See Friesen, at para. 101. See also s. 718.01 Cr. C.
[38] In pursuit of the recognized objectives, the court is guided by the overarching principle of proportionality. Indeed, the starting point for any sentencing is the requirement that the sentence imposed be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1 Cr. C.
[39] Proportionality engages two distinct concepts: censure and restraint. See R. v. Ipeelee, 2012 SCC 13, at para. 37. It ensures that a sentence reflects the gravity of the offence, promotes justice for victims and ensures public confidence in the justice system. At the same time, it ensures that a sentence does not exceed what is appropriate, in light of the moral blameworthiness of the offender.
[40] The concept of proportionality compels courts to treat like cases alike and to recognize where there are material differences between different offenders and different offences. Section 718(2)(b) Cr. C. specifically provides that “a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances”.
[41] At the same time, the court must recognize that sentencing is an acutely individualized exercise. The court must carefully consider the particular circumstances of the offence and of the offender. Any aggravating and mitigating circumstances must be taken into account.
DISCUSSION
The Circumstances of the Offender
[42] Mr. Sinnappillai’s counsel urged the court to give strong consideration to Mr. Sinnappillai’s background in mitigation of any sentence imposed.
[43] Mr. Sinnappillai is Sri Lankan by birth. He was born in 1977 and grew up in the midst of the Sri Lankan civil war. He was arrested and subjected to torture at one point. He fled the country in 2010 as a refugee. He arrived by sea in Canada on one of two large vessels of Tamil refugee claimants.
[44] Mr. Sinnappillai’s refugee claim was subject to close scrutiny by Canadian immigration authorities. It remained unresolved at the time Mr. Sinnappillai was charged with the index offences. As a result of the charges it was put on hold.
[45] Mr. Romoff advised the court that as a result of Mr. Sinnappillai’s conviction, he will be ineligible for refugee status. He may have one avenue left open to him, which is to request a pre-removal assessment report and seek a determination that he is a person in need of protection. According to his counsel, his chance of success is statistically low, but he may yet be able to remain in Canada, though without the status of a permanent resident.
[46] Mr. Sinnappillai has a wife and two children. He has never met his youngest child, an 11-year-old daughter who was born after he fled Sri Lanka. His wife and two children reside in India. They have no status there. His wife is unable to work. Without permanent resident status here, Mr. Sinnappillai will be unable to apply to bring his wife and children to Canada.
[47] Mr. Sinnappillai is afraid to return to Sri Lanka. He has no right to move to India. He has lived like this, in limbo and separated from his family, for over a decade.
[48] Mr. Sinnappillai works as a truck mechanic. He earns between $1,500 and $3,000 per month. He sends $1,000 per month to his wife in India. She and the children are totally dependent on that money for their support. His wife is unaware of the charges against him in Canada.
[49] Mr. Romoff describes Mr. Sinnappillai’s life to date as a difficult but peaceful one. He has no criminal antecedents.
The Impact of the Offence
[50] This was a police sting operation, so no actual underaged person was lured by Mr. Sinnappillai. That does not, however, mean it was a victimless offence. Indeed, the Supreme Court directed, at para. 94 of Friesen, that child luring should never be viewed as a victimless crime, even in the context of police sting operations.
[51] The Crown filed a community impact statement pursuant to s. 722.2(1) Cr. C. The statement was prepared by the Canadian Centre for Child Protection Inc. (“C3P”), which describes itself as a registered Canadian charity dedicated to the personal safety of all children. It is an organization based in Winnipeg, Manitoba with some fifty staff members. Its focus is on the reduction of the sexual abuse and exploitation of children.
[52] C3P submits that disadvantaged groups, including Indigenous women and girls, 2SLGBTQQIA individuals, racialized communities, children in care and those experiencing homelessness are most at-risk of being sexually exploited or abused. They cite research finding that the average age at which a person begins to be exploited through prostitution is between 13 and 16. They go on to note the obvious: that a person willing to purchase sex from a child contributes to the overall demand for sexual services from children. This demand is the fuel that drives the industry.
[53] The “industry”, to be clear, is the commodification of young girls’ bodies and souls for the sexual gratification of a certain segment of the adult male population. These young girls are typically vulnerable and are frequently coerced or manipulated into prostituting themselves. The experience is a traumatizing one, frequently leading to post-traumatic stress disorder, substance abuse, anxiety and depression, and other serious mental health conditions.
The Appropriate Sentence
[54] Twenty years ago, in R. v. D.(D.), 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 (C.A.), Moldaver J.A., as he then was, sent a clear message to adult sexual predators who put the lives of innocent children at risk: they will pay a heavy price. That message was repeated in R. v. Woodward, 2011 ONCA 610 at para. 73.
[55] In the Supreme Court’s decision in Morrison, Justice Moldaver observed, at para. 39, that Parliament created the child luring offence “to combat the very real threat posed by adult predators who attempt to groom or lure children by electronic means.” Child luring, he said at para. 153, “is a serious offence that targets one of the most vulnerable groups within Canadian society – our children...it involves a high level of moral blameworthiness.”
[56] Justice Karakatsanis observed, in the same decision, that in most child luring cases proceeding by indictment, the appropriate sentencing range will be from 12 to 24 months. See Morrison, para. 177.
[57] More recently, in Friesen, the Supreme Court reinforced the message that sexual offences against children are grave offences with profound and long-lasting consequences for the children victimized by them. They highlighted a number of compelling factors engaged in the sentencing process for offenders who commit sexual offences against children. These include:
(a) Sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence. Sentences must reflect the “life-altering consequences” that can and often do flow from sexual violence (Para. 74);
(b) The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers and communities (Para. 76);
(c) The wrongfulness of the exploitation of children is always relevant to the normative character of the offender’s conduct and thus the gravity of the offence (Para. 78);
(d) Intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable. The use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions (Para. 90); and,
(e) The absence of a specific victim is a relevant consideration in crafting a fit and appropriate sentence but one that should not be over-emphasized. The accused gets no credit for it. A conviction for child luring in the context of a police sting means that the accused intentionally communicated with a person who he believed was a child and that he had the specific intent to facilitate the commission of a sexual offence against that child (Para. 93).
[58] Citing Parliament’s legislative initiatives with respect to sexual offences against children – particularly the increase in maximum sentences for a significant number of offences – and “the contemporary understanding of the profound harm that sexual violence against children has”, the Supreme Court expressly instructed that an upward departure from prior precedents and sentencing ranges may well be required to impose sentences that are proportionate to the moral blameworthiness of offenders who commit sexual offences against children. (Friesen, para. 107).
[59] On December 7, 2021, the government introduced Bill C-5, which proposes to eliminate some twenty mandatory minimum sentences across the Criminal Code and Controlled Drugs and Substances Act. Notably, they do not propose to eliminate the one-year mandatory minimum in s. 172.1(2)(a), even in the face of Justice Moldaver’s observation in Morrison that certain features of s. 172.1 make the mandatory minimum “constitutionally suspect”. (Morrison, para. 146).
[60] Project Raphael resulted in more than 100 arrests. Those arrests led to dozens of prosecutions, a substantial number of convictions and, ultimately, sentences. Almost all of those sentences were imposed prior to the release of Friesen. In light of Friesen they remain of little precedential value. I am not bound to seek parity with a range of sentences that our highest court has found to have been too low.
[61] Recently, in R. v. Moolla, 2021 ONSC 3702, Justice Code considered the impact of Parliament’s decision to increase the maximum penalty for luring from 10 to 14 years as well as the guidance provided to sentencing judges in the cases of Woodward and Friesen. He concluded that 3 to 5 years is now the appropriate range in child luring cases.
[62] Moolla, I note, involved a police sting. The offender had placed an ad on Craigslist seeking a sexual relationship with a girl between the ages of 16 and 19. An undercover police officer responded, posing as a 14-year-old girl. Two days of communications led to an arranged meeting for the purpose of sexual relations. Mr. Moolla was arrested when he showed up for the meeting.
[63] Justice Code imposed a sentence of three-and-a-half years for internet child luring.
[64] I am reluctant to jump too quickly to the conclusion that there is now a set range of 3 to 5 years for internet child luring cases. I say this for two reasons. First, internet child luring is an offence that may be committed in a wide range of circumstances. It does not easily lend itself to a narrow range of appropriate sentences. Second, everyone agrees that the Supreme Court in Friesen has urged trial and appellate courts to nudge up the severity of sentences imposed for sexual offences against children. There is no doubt that the yardsticks are in motion. But, in my view, there isn’t yet a sufficient body of post-Friesen sentencing jurisprudence, particularly at the appellate level, that a set range might confidently be pronounced.
[65] In any event, the Crown in this instance is not seeking a sentence in the 3 to 5-year range. In written submissions, the Crown urged the court to consider a sentence of 2 years less a day to be served in the reformatory. In oral submissions she adjusted that figure downward to account for the mitigating effect of Mr. Sinnappillai’s personal circumstances, suggesting that an appropriate sentence would be 16 months.
[66] I agree that Mr. Sinnappillai’s personal circumstances are ones that evoke a sympathetic response. He has not had an easy life. Those of us fortunate enough to have lived our lives peacefully in a free and democratic country like Canada, are unable to fully appreciate what it must be like to grow up in the midst of war; to be summarily detained and tortured; and to live in fear every day for the safety and security of one’s self and one’s family members.
[67] Mr. Sinnappillai has been separated from his wife and children for over a decade. They rely entirely on the money he sends to India every month for their survival. They have no idea that their lifeline is in jeopardy.
[68] While eliciting sympathy, none of Mr. Sinnappillai’s personal circumstances inform his decision to sexually exploit a person he understood to be a minor, nor excuse his conduct in doing so.
[69] Mr. Sinnappillai was afforded the right of allocution during the sentencing process. He took no responsibility for the offence, offering instead that he had no intention to have sex with a minor. I lack the ability to see into Mr. Sinnappillai’s mind at the time the offence was committed. That said, Mr. Sinnappillai had a fair trial before a jury of his peers. After hearing all of the evidence, including his testimony in his own defence, the jury concluded that he did intend to have sex with a minor. I must sentence Mr. Sinnappillai on the basis of the facts found by the jury.
[70] The jury determined that Mr. Sinnappillai intentionally communicated by text messages with a person he understood to be a 15-year-old girl, for the purpose of committing the offence of invitation to sexual touching. He negotiated for a half-hour of unprotected, “full service” sex with a 15-year-old, in exchange for $100. These facts reflect significant moral blameworthiness on his part.
[71] It is not difficult to imagine the unfortunate life circumstances that a young girl of 15 years must be experiencing to be selling her body for sex out of a hotel room in Markham. There is nothing sexy or glamorous about those circumstances. They reflect only suffering. Mr. Sinnappillai sought to exploit them for his own sexual gratification. He arrived at the hotel room door, $100 in hand, expecting to spend the next 30 minutes sexually abusing a vulnerable child.
[72] The following passage at paras. 42 and 43 of Justice Mainella’s ruling in R. v. Alcorn, 2021 MBCA 101 is apposite:
[42] Child prostitution is a paradigm of serious wrongdoing. Like other sexual offences, child prostitution is a universally accepted wrong. There is no reasonable debate against the law taking a hard, paternalistic approach to prohibit child prostitution. Such behaviour offends core societal values as to harm, autonomy, culpability and, because the victims are primarily of one race and one gender, equality. The harmful consequences—physical, psychological and societal—that flow from child prostitution are justification to treat it as severely as other sexual offences of violence or exploitation.
[43] Moreover, children are not instruments to be bought for another’s sexual desires. At its core, the wrongfulness of child prostitution is a denial of a child’s humanity; the sexual relationship between the exploiter and the child is one of objectification where the powerful party, the exploiter, converts the child to an object to be sexually dominated. Such conduct is abhorrent and turns the fundamental value of protecting children “on its head” (Friesen at para 65). Thinking of child prostitution in this sense also allows a strong parallel to be drawn to other sexual offences.
[73] Having regard Justice Mainella’s comments, with which I agree, and to the Supreme Court’s clear direction in Friesen, I am of the view that a sentence in the range suggested by the Crown is not inappropriate. Indeed, it is arguably at the low end of an appropriate range.
[74] Mr. Sinnappillai’s difficult history notwithstanding, a conditional sentence is, in my view, grossly disproportionate to the gravity of the offence and the moral blameworthiness of the offender.
[75] It is appropriate that the court consider collateral consequences when imposing a sentence. See R. v. Pham, 2013 SCC 15. Collateral consequences are “any consequences for the impact of the sentence on the particular offender.” (Pham, para. 11).
[76] Immigration considerations are a collateral consequence frequently raised with the court. In this case, Mr. Sinnappillia’s counsel made it clear that the conviction sealed Mr. Sinnappillai’s fate in terms of his immigration status. It is, in the result, a non-factor on this sentencing.
[77] There will likely be a particularly difficult financial collateral consequence impacting on Mr. Sinnappillai’s wife and children. While terribly unfortunate, that is not an impact that directly bears on the offender. Nor can it reduce the sentence imposed to a level that is disproportionate to the gravity of the offence and the moral blameworthiness of the offender.
[78] In my view, the sentence suggested by Crown counsel in oral submissions is fit and appropriate in all the circumstances and it is the sentence I impose.
[79] In the result, I sentence Mr. Sinnappillai on count 2 as follows:
(a) To 16 months imprisonment, followed by one year of probation on the following terms, in addition to the statutory terms:
(i) to report to a supervisor within 2 business days of his release from custody;
(ii) to attend and participate in such counselling as may be recommended by his supervisor; and,
(iii) not to attend any hotels, motels or inns without the prior written consent of his supervisor;
(b) A SOIRA order for 20 years;
(c) An order that Mr. Sinnappillai provide a sample of his DNA;
(d) An order, pursuant to s. 161 of the Criminal Code that, for a period of 5 years, he not have any contact – including communicating by any means – with a person who is under the age of 16 years, except for communications with his own children or other communications while in the presence of another adult of at least 21 years of age; and,
(e) A forfeiture order with respect to the cell phone and cash seized by the police at the time of Mr. Sinnappillai’s arrest.
C. Boswell J.
Released: February 4, 2022