R. v Fluet, 2023 ONSC 3858

Court File and Parties

COURT FILE NO.: 21-SA4565 DATE: 2023/06/27 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – RYAN GRANT FLUET

Counsel: Matthew Brown, for the Crown Mellington Godoy, for Mr. Fluet

HEARD: May 24, 2023

PUBLICATION BAN Subject to any further order by a court of competent jurisdiction, an order has been made in this proceeding that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way, pursuant to s. 486.4(1) of the Criminal Code, R.S.C. 1985, c. C-46.

REASONS FOR SENTENCE

ryan bell j.

Overview

1Mr. Fluet has been found guilty of inviting a person under the age of 16 to touch him in a sexual manner. He was acquitted of sexual assault and sexual interference.

2I found Mr. Fluet guilty of the offence of invitation to sexual touching in respect of text messages sent by Mr. Fluet to S.R. on April 17 and 18, 2021, after S.R. stated in a text message to Mr. Fluet “I’m 15.” The defence conceded at trial that the offence of invitation to sexual touching had been made out for the time period April 17 to 18, 2021.

3In s. 152(a) of the Criminal Code, the offence of invitation to sexual touching carries a maximum sentence of 14 years imprisonment and a minimum sentence of one year imprisonment given that the Crown proceeded by indictment.

4I heard sentencing submissions on May 24, 2023 and reserved judgment. While an examination under s. 21 of the Mental Health Act, R.S.O. 1990, c. M.7 was ordered on March 3, 2023, as of the date of the sentencing hearing, Mr. Fluet had not been seen by a psychiatrist in relation to that examination.

5There are two issues to be addressed: (i) the constitutionality of the mandatory minimum sentence of one year in s. 152 (a) of the Criminal Code; and (ii) the fit and proportionate sentence in this case. The Crown seeks a three-year custodial sentence. Mr. Fluet takes the position that the appropriate sentence is time served, being six months as at the date of the sentencing hearing, followed by the maximum period of probation.

Facts relating to the offence

6In summary, the evidence at trial was that S.R. and Mr. Fluet met online in April 2021. Mr. Fluet had recently attempted suicide and had just gone through a breakup. S.R. sent her oldest sister’s picture to Mr. Fluet. They agreed to this being a “friends with benefits” arrangement.

7I did not accept S.R.’s evidence that she told Mr. Fluet on the first day they met that she was 15 years of age. There was evidence at trial that when she first met Mr. Fluet’s mother, S.R. told her that she was 18 years of age. S.R. admitted that she lied about her age on this occasion.

8On April 17, 2021, S.R. sent Mr. Fluet a text message in which she stated, “I’m 15.” After receiving this text message, Mr. Fluet sent two text messages or strings that I found – and Mr. Fluet conceded – constituted an invitation to sexual touching. The April 17, 2021 text message reads: “gonna be a long 2 weeks tho and u owe me sex once more at least right like you said the other day.” The April 18, 2021 string begins with a text message that reads: “U want pain, come have bdsm sex with me I’ll tie you up and wipe u and give u pain no scarring or marking much or for long but same satisfaction with intimate orgasmic pleasure as well because u like the pain and pleasure combined.”

Circumstances relating to the offender

9Mr. Fluet is now 28 years old. He was 25 at the time of the commission of the offence. Mr. Fluet has two children but does not have much communication with them, except through his mother.

10Mr. Fluet had a difficult upbringing. As a child, he was exposed to general and gang violence. Once he was stabbed in the face. Mr. Fluet’s mother has bipolar disorder. Before her bipolar disorder was diagnosed, she was often angry and unstable. Mr. Fluet’s father was addicted to alcohol and cannabis. Mr. Fluet was exposed to arguments between his parents that would become physically violent.

11Mr. Fluet’s father left the family home on Christmas Eve in 2002, when Mr. Fluet was seven years old. Since that time, Mr. Fluet has remained with his mother. He would only see his father on weekends. When Mr. Fluet’s mother found a new partner, Mr. Fluet was again exposed to fights and arguments.

12Mr. Fluet got into fights in elementary school, with the situation becoming worse after his parents separated. In grade 3, he was referred to the Crossroads Anger Management School for aggression. He successfully finished the program at Crossroads.

13At the age of 12, Mr. Fluet stopped taking his ADHD medication because it made him feel groggy. Mr. Fluet began self-medicating with cannabis. As he progressed through high school, alcohol became his regular drug of choice. He started drinking excessively. At the age of 16, he began to use cocaine. He also used Ecstasy and MDMA.

14Mr. Fluet completed high school and, for a brief period of time, attended Algonquin College for the HVAC program. As a result of his drinking and taking drugs, Mr. Fluet was unable to obtain the grades he needed to pass.

15Mr. Fluet has a criminal record. That record includes convictions in November 2018 for use of an imitation firearm during the commission of an indictable offence and pointing a firearm. Mr. Fluet has no convictions for sexual offences.

16A s. 21 report was prepared in 2018. Dr. Braithwaite diagnosed Mr. Fluet with alcohol substance use disorder and personality disorder.

17As at the date of the sentencing hearing, Mr. Fluet had 118 days of pre-sentence custody. As of today, Mr. Fluet has 152 days of pre-sentence custody. While in custody, Mr. Fluet suffered from a physical assault resulting in a broken cheekbone requiring reconstructive surgery. The assault took place while he was in protective custody. Mr. Fluet has been on medication while in custody. He has completed 13 self-help modules, including in relation to addiction, anger management, and release into the community. He hopes to enrol in a barber program on his release.

Is the one-year mandatory minimum sentence for invitation to sexual touching in s. 152 (a) cruel and unusual punishment contrary to s. 12 of the Canadian Charter of Rights and Freedoms?

18In R. v. Hills, 2023 SCC 2, the Supreme Court of Canada clarified the legal principles that govern when the constitutionality of a mandatory minimum sentencing provision is challenged under s. 12 of the Canadian Charter of Rights and Freedoms. To assess whether a mandatory minimum violates s. 12 of the Charter, a court must: (i) assess what constitutes a fit and proportionate sentence having regard to the objectives and principles of sentencing in the Criminal Code; and (ii) consider whether the impugned provision requires the imposition of a sentence that is grossly disproportionate, not merely excessive, to the fit and proportionate sentence. This two-part assessment may proceed on the basis of either the offender before the court or another offender in a reasonably foreseeable case or hypothetical scenario: Hills, at paras. 40-41.

19Where the court concludes that the provision infringes s. 12, the court must consider whether the infringement can be justified under s. 1 of the Charter if arguments or evidence to that effect are raised by the Crown: Hills, at para. 42. No arguments or evidence in relation to s. 1 of the Charter were raised by the Crown in this case.

20Also relevant to my analysis are the rules of horizontal stare decisis and judicial comity, recently discussed by the Supreme Court of Canada in R. v. Sullivan, 2022 SCC 19. As set out at para. 73 of Sullivan,

Horizontal stare decisis applies to decisions of the same level of court. The framework that guides the application of horizontal stare decisis for superior courts of first instance is found in Spruce Mills, described by Wilson J. as follows (at p. 592):

... I will only go against a judgment of another Judge of this Court if:

(a) Subsequent decisions have affected the validity of the impugned judgment;

(b) It is demonstrated that some binding authority in case law, or some relevant statute was not considered;

(c) The judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.

21At para. 75 of Sullivan, the Supreme Court stated:

The principle of judicial comity – that judges treat fellow judges’ decisions with courtesy and consideration – as well as the rule of law principles supporting stare decisis mean that prior decisions should be followed unless the Spruce Mills criteria are met. Correctly stated and applied, the Spruce Mills criteria strike the appropriate balance between the competing demands of certainty, correctness and the even-handed development of the law. Trial courts should only depart from binding decisions issued by a court of coordinate jurisdiction in three narrow circumstances:

1. The rationale of an earlier decision has been undermined by subsequent appellate decisions;
2. The earlier decision was reached per incuriam (“through carelessness” or “by inadvertence”); or
3. The earlier decision was not fully considered, e.g. taken in exigent circumstances.

22Where a judge is faced with conflicting authority on the constitutionality of legislation, the judge must follow the most recent authority unless the criteria are met. In that situation, the judge must, in determining whether the prior decision was taken per incuriam, consider whether the analysis failed to consider a binding authority or statute relevant to the legal question: Sullivan, at para. 79.

23On the constitutionality of the mandatory minimum sentence in s. 152 (a) of the Criminal Code, the Crown invites me to follow the decision of Bale J. in R. v. Richard, 2019 ONSC 4175. Mr. Fluet relies on the more recent decision of Davies J. in R. v. Mootoo, 2022 ONSC 384.

24I first consider Richard. The sentencing judge in that case agreed with the Crown that the minimum sentence of one year provided for in s. 152 (a) was not grossly disproportionate on the facts of the case before the court. He found the hypothetical situations posed by defence counsel to be “bereft of detail”, with neither demonstrating the minimum sentence to be unconstitutional. The sentencing judge acknowledged that there could be reasonable hypotheticals that would demonstrate the mandatory minimum sentence of one year to be unconstitutional but was of the view that the court was “not required to construct its own hypotheticals in order to determine the question”: Richard, at para. 25.

25In terms of reasonable hypotheticals, Mr. Fluet has referred me to the Court of Appeal for Ontario’s decision in R. v. B.J.T., 2019 ONCA 694. In B.J.T., the Court agreed with the hypotheticals posited in several cases and that the one-year mandatory minimum sentence for sexual interference would be grossly disproportionate to a proportionate sentence for the sentence for the offender in those circumstances. As a result, the mandatory minimum sentence for sexual interference constitutes cruel and unusual punishment contrary to s. 12 of the Charter.

26Mr. Fluet relies, in particular, on para. 74 of B.J.T.:

In Caron Barrette, the facts were that the offender was 23 years old. He engaged in a romantic relationship with a 14 year-old girl with her parents’ consent. Neither was aware that their conduct was illegal. The court found that a 90 day intermittent sentence was proportionate and that the one-year mandatory minimum was therefore grossly disproportionate. The court also confirmed that the three reasonable hypotheticals postulated by the trial judge were appropriate and supported the finding that the mandatory minimum of one year contravened s. 12 of the Charter. Those three were:

1. 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;
2. 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
3. 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.

27Mr. Fluet submits that the reasonable hypotheticals reviewed and accepted by the Court of Appeal in B.J.T., and in particular, the third hypothetical posited in Caron Barrette, bear some similarity to what occurred in this invitation to sexual touching case. Mr. Fluet met S.R. at a time when he was suffering from mental health issues, including depression. He was in a vulnerable position, having just suffered a relationship breakup and had recently attempted suicide. He believed that he was legally able to start a relationship with S.R. and they formed a “friends with benefits” relationship of sorts which was not sexual, but there was a desire for it to be. By the time Mr. Fluet realized that S.R. was underage, he had developed feelings for her and there was an invitation to sexual touching over the course of two days.

28I agree with Mr. Fluet’s submission that on these facts and in these circumstances, a one year sentence would be grossly disproportionate to a fit and proportionate sentence.

29In Mootoo, decided after Richard and after the Supreme Court of Canada’s decision in R. v. Friesen, 2020 SCC 9, Mr. Mootoo was to be sentenced for procuring a child to engage in prostitution, possessing child pornography for the purpose of distribution, luring a child under the age of 16, and invitation to sexual touching. The sentencing judge engaged in a detailed discussion of the mandatory minimum sentences in relation to each of these offences, stated she was not satisfied that any of the trial level decisions are “plainly wrong”, and sentenced Mr. Mootoo on the basis that the mandatory minimum sentences, including in s. 152 (a) of the Criminal Code, are unconstitutional and inapplicable.

30Invitation to sexual touching has a mandatory minimum sentence of one year imprisonment when prosecuted by indictment, but only 90 days when prosecuted by summary conviction. At para. 20 of Mootoo, the sentencing judge addressed the Supreme Court of Canada’s comments on the 90-day mandatory minimum sentence for luring a child. In R. v. Morrison, 2019 SCC 15, the Supreme Court allowed Mr. Morrison’s conviction appeal and ordered a new trial; his sentence appeal was therefore moot. However, the Supreme Court, at para. 146, commented that the mandatory minimum sentence was “at the very least, constitutionally suspect” because the offence captures a very wide variety of conduct and circumstances. In addition, the Supreme Court noted that the fact that child luring has different mandatory minimum sentences depending on how the Crown proceeds raises concerns about the constitutionality of the mandatory minimum sentence. The Court reasoned: “by identifying a sentencing floor embodied by the summary conviction minimum sentence, Parliament has openly acknowledged that there will be circumstances in which the application of the higher mandatory minimum will be harsher than necessary”: Morrison, at para. 151. In my view, these words are apposite to the mandatory minimum sentence in relation to the offence of invitation to sexual touching.

31Because the Crown seeks to analogize the offence of child luring to the circumstances giving rise to the conviction in this case, I have also considered the Court of Appeal’s decision in R. v. Cowell, 2019 ONCA 972. The majority found that a one-year sentence for child luring was not grossly disproportionate for Mr. Cowell because of the high degree of moral blameworthiness of his conduct, and declined to rule on whether the mandatory minimum sentence would be unconstitutional when applied to other reasonably foreseeable scenarios because the issue was not argued at trial. Justice Trotter, dissenting on this issue, would have found the mandatory minimum sentence unconstitutional for the reasons articulated by the Supreme Court in Morrison, including because “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”: Cowell, per Trotter J.A. dissenting, at para. 106.

32The sentencing judge in Mootoo stated that the one-year mandatory minimum sentence in s. 152 (a) was declared unconstitutional by a judge of this court in R. v. Hussein, 2017 ONSC 4202. In Hussein, the sentencing judge proceeded on the basis that the one year mandatory minimums for sexual assault, sexual interference, and invitation to sexual touching are of no force and effect, relying on the trial decision in R. v. B.J.T., 2016 ONSC 6616, R. v. M.L., 2016 ONSC 7082, and R. v. Sarmales, 2017 ONSC 1869. None of these cases was an invitation to sexual touching case.

33The sentencing judge in Mootoo also referred to the decision of the Court of King’s Bench of Alberta in R. v. Reeves, 2020 ABQB 78. In Reeves, the sentencing judge found the mandatory minimum sentence in s. 152 (a) to be unconstitutional, relying on the Alberta Court of Appeal’s decision in R. v. Ford, 2019 ABCA 87 where the appellate court found the one-year mandatory minimum sentence for sexual interference unconstitutional. As summarized by the sentencing judge in Mootoo, at para. 23,

…[i]n Reeves the Court held that if the mandatory minimum sentence for sexual interference is unconstitutional, the same mandatory minimum sentence for invitation to sexual touching must also be unconstitutional. Sexual interference requires proof that the accused touched a child for a sexual purpose. Invitation to sexual touching does not require there to have been any actual touching. This means that invitation to sexual touching can be committed in circumstances that are less serious than sexual interference. The Court found that if the mandatory minimum is unconstitutional for the more serious offence, it must also be unconstitutional for the potentially less serious offence.

34I agree with this reasoning. The Court of Appeal in B.J.T. found the one-year mandatory minimum sentence for sexual interference unconstitutional. It follows that for the potentially less serious offence of invitation to sexual touching, the one-year mandatory minimum sentence must also be unconstitutional.

35The decisions in Reeves and Ford predate the Supreme Court of Canada’s decision in Friesen. The Crown submits that this is an important factor to be considered in determining what weight should be given to these cases. This issue was addressed by the sentencing judge in Mootoo. In Mootoo, the Crown argued that all of the decisions striking down mandatory minimum sentences were clearly wrong because they did not recognize the true harm caused by sexual offences against children.

36As the sentencing judge in Mootoo stated, the decision in Friesen sends a clear message to trial judges that sentences for sexual offences against children must increase to reflect the inherent gravity and harmfulness of these offences. The Supreme Court of Canada held that mid-single digit sentences should be the norm for such offences and that upper-single digit and double-digit penitentiary terms are not reserved for rare or exceptional cases: Friesen, at para. 114; Mootoo, at para. 26. However, as the sentencing judge in Mootoo observed, the Supreme Court in Friesen expressly declined to set a starting point for sentences for sexual offences against children, noting that “[t]he deferential appellate standard of review is designed to ensure that sentencing judges can individualize sentencing both in method and outcome”: Friesen, at paras. 36-39; Mootoo, at para. 26.

37The sentencing judge in Mootoo summarized the impact of Friesen on the constitutionality of mandatory minimum sentences at para. 27 of her reasons:

Even if a “substantial sentence” will be required in most cases of sexual violence against children, that does not mean a sentence of one-year or more will be proportionate in every case. It also does not mean that the trial judges who concluded the mandatory minimum sentences are unconstitutional failed to appreciate the inherent wrongfulness and harmfulness of sexual offences against children. Even after Friesen, there can be cases in which a one-year sentence will be grossly disproportionate. Importantly, the Ontario Court of Appeal struck down the mandatory minimum sentence for procuring a child to engage in prostitution after the Supreme Court’s decision in Friesen. The Quebec Court of Appeal also struck down the mandatory minimum sentences for luring a child after Friesen. This supports my conclusion that the Supreme Court’s direction that sentences for sexual offences against children should generally increase does not mean the mandatory minimum sentence for those offences will be proportionate in all circumstances.

38In summary, I agree with the analysis and reasoning of my colleague in Mootoo. Although the decision is not binding on me, I also agree with the sentencing judge in Reeves. I find that the one-year mandatory minimum sentence in s. 152 (a) of the Criminal Code infringes s. 12 of the Charter. The Crown has offered no s. 1 justification. As no declaration of invalidity was made in Mootoo or Hussein, I do so here. I declare the mandatory minimum sentence provided for in s. 152(a) of the Criminal Code to be of no force or effect: Constitution Act, s. 52(1).

A fit and proportionate sentence in this case

39The principles of sentencing are set out in ss. 718, 718.1, and 718.2 of the Criminal Code. The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1. Of particular importance in this case is s. 718.01. Section 718.01 provides when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. See also Friesen, at paras. 101-105.

(i) Aggravating factors

40Mr. Fluet’s criminal record is an aggravating factor. In addition to the offences to which I have already made reference, Mr. Fluet’s record includes convictions in December 2022 for causing a disturbance and uttering threats which involved his using racial insults.

41Parliament has identified the abuse of persons under the age of 18 as a statutory aggravating factor: Criminal Code, s. 718.2(ii.1). In Friesen, at para. 116, the Supreme Court of Canada reviewed four legislative “signals”, including s. 718.2 (ii.1), before stating:

This is a clear indication in the Criminal Code that Parliament views sexual violence against children as deserving of more serious punishment. These four legislative signals reflect Parliament’s recognition of the inherent vulnerability of children and the wrongfulness of exploiting that vulnerability.

42S.R. was 15 at the time of the offence. The fact that the victim is a child increases Mr. Fluet’s degree of responsibility. S.R. did not provide a Victim Impact Statement.

43While the Crown suggested that Mr. Fluet’s conduct was not isolated, and was a “repeated choice” to commit the offence, I do not accept this characterization. The offence relates to two text messages sent over two days. The conduct was of extremely limited duration and was not ongoing.

(ii) Mitigating factors

44There are several mitigating factors in this case. Mr. Fluet conceded at trial that the offence of invitation to sexual touching had been made out for the time period April 17 to 18, 2021.

45As Doherty J.A. explained in R. v. Hamilton and Mason, at para. 91, “[t]he ‘degree of responsibility of the offender’ refers to the offender’s culpability as reflected in the essential substantive elements of the offence – especially the fault component – and any specific aspects of the offender’s conduct or background that tend to increase or decrease the offender’s personal responsibility for the crime.” Mr. Fluet was in a depressed and vulnerable state when he met S.R. online. By the time she told him she was 15, he had already formed a bond with her. He went so far as to provide S.R.’s aunt with a screenshot of the Criminal Code which he read as saying he could communicate with S.R. when clearly, on the face of the provision he sent, he could not do so.

46Mr. Fluet continues to have the support of his mother. His mother gave evidence at his trial and attended at the sentencing hearing. She is present in court today. They have a good relationship and, on his release, Mr. Fluet wants to reside with his her. She, in turn, has readied her home for this eventuality.

47Finally, and to his credit, Mr. Fluet has been engaged in self-study programs while in custody, including in respect of anger management and addiction.

(iii) Other decisions

48The only sentencing decisions for invitation to sexual touching to which I have been referred are Richard and Mootoo. In Richard, the offender was sentenced to a term of imprisonment of one year, followed by two years of probation. In my view, the facts of this case are less serious than those in Richard, where the offender was the complainant’s uncle, they had engaged in text messaging over the course of several years, and the complainant was 14 years old at the time of the text messages which resulted in the conviction.

49In Mootoo, the offender was sentenced to three years for attempting to procure a child under the age of 18 to provide sexual services for money, three years to be served concurrently for luring a child under the age of 16, two years to be served concurrently for invitation to sexual touching, and six months in custody to be served consecutively for possession of child pornography for the purpose of distribution. In that case, the aggravating factors included: the offender engaged in a process of grooming the complainant; the messages and images sent by the offender were very graphic; the offender communicated with the complainant in an overtly sexual manner over several days; and the offender’s offences caused actual harm to the complainant. In my view, Mr. Fluet’s moral blameworthiness is far less than that of the offender in Mootoo.

50The Crown has also referred me to R. v. Carbone, 2020 ONCA 394 and R. v. Moolla, 2021 ONSC 3702. Carbone was an appeal by the accused from his conviction for invitation to sexual touching and addresses the mens rea to convict on a charge under s. 152: see Carbone, at para. 131. The Court of Appeal allowed the appeal and ordered a new trial.

51In Moolla, the offender was sentenced to three and a half years for child luring. In that case, the sentencing judge found the character of the text messages sent to be aggravating because they were graphically sexual and voluminous, they included a photograph of a partially erect male penis, and they indicated a significant amount of planning. In addition, the offender was “overt and explicit from the outset, that he was interested in sex with a young girl”: Moolla, at para. 22. The offender in Moolla, convicted of a different offence, was clearly a worse-situated offender than Mr. Fluet, who did not set out looking for someone who was underage.

Sentence and ancillary orders

52In all these circumstances, and bearing in mind the directive of the Supreme Court of Canada in Friesen that sentences for sexual offences against children must increase to reflect the inherent wrongfulness and harmfulness of sexual offences against children, I find that a sentence of seven months imprisonment, followed by three years of probation, is appropriate for this offence and this offender. Mr. Fluet is entitled to one and a half days credit for each day he has spent in pre-sentence custody, resulting in a total as of today of 228 days or 7.6 months. Accordingly, the sentence is effectively one of “time served.”

53The conditions of the probation are:

(i) Mr. Fluet will keep the peace and be of good behaviour;

(ii) he will not communicate, directly or indirectly, with S.R., and will refrain from going within 100 metres of S.R.’s place of residence, education, employment, or worship;

(iii) he will appear before the court when required by the court to do so;

(iv) he will report to a probation officer immediately upon his release from custody, and thereafter, when required by the probation officer, and in the manner directed by the probation officer, and he will sign any consents that will allow the probation officer to monitor his compliance;

(v) Mr. Fluet will be required to attend and actively participate in, to the satisfaction of the probation officer, any assessment, treatment, or counselling as recommended by the probation officer, and Mr. Fluet will sign any consents or releases as required to allow the probation officer to monitor and verify his compliance. Mr. Fluet will provide written proof of completion of any assessment, treatment, or counselling to his probation officer.

54I make the following ancillary orders:

(i) an order requiring Mr. Fluet to provide a DNA sample pursuant to s. 487.051(1) of the Criminal Code;

(ii) an order requiring Mr. Fluet to comply with the Sex Offender Information Registration Act for 20 years. In this regard, I note that in R. v. Ndhlovu, 2022 SCC 38, the Supreme Court of Canada declared s. 490.012 of the Criminal Code to be unconstitutional; however, the Supreme Court suspended the declaration for one year to allow Parliament time to amend the provision to bring it into constitutional compliance. Therefore, at the present time, an offender must bring a constitutional challenge in order to be exempt from a SOIRA order. Mr. Fluet has not made such application and therefore, a SOIRA order is mandatory. Mr. Fluet may make an application to be removed from the registry, if he deems it appropriate to do so: see Ndhlovu, at para. 140; R. v. H.M., 2023 ONSC 1002, at para. 42.

55Although requested by the Crown, I do not make any order under s. 161 of the Criminal Code. The scope and duration of a prohibition order under s. 161 must be tailored to the individual offender and informed by the nature and extent of the risk to re-offend. There is nothing in the record before me with respect to Mr. Fluet’s risk to reoffend and, although Mr. Fluet communicated with S.R. via text message, in my view, this alone does not justify the imposition of a s. 161 order.