COURT FILE NO.: CR-22-10000227 DATE: 20241129 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HIS MAJESTY THE KING – and – NIMO ALI

Counsel: Brigid McCallum, for the Respondent James Miglin, for the Applicant

Heard: July 11, 2024

Before: B. P. O’MARRA J.

Ruling ON CONSTITUTIONALITY OF S. 279.02(2) of the criminal code.

Overview

[1] The applicant was found guilty by a jury of five counts related to human trafficking. One of those counts was the offence of receiving a material benefit from trafficking a person under 18 years of age, contrary to s. 279.02(2) of the Criminal Code. That subsection provides a mandatory minimum sentence of two years. The minimum sentences have already been found unconstitutional for both the trafficking and procuring offences: R. v. Purcell, 2019 ONSC 4683; R. v. Ahmed et al., 2019 ONSC 4822; R. v. Safieh, 2021 ONCA 643.

[2] The applicant submits that the mandatory minimum sentence for this section amounts to cruel and unusual punishment and is therefore contrary to s. 12 of the Charter and cannot be upheld under s. 1 of the Charter. The applicant further submits that the unavailability of a conditional sentence in accord with s. 742.1 of the Criminal Code results in an arbitrary and overly broad deprivation of liberty and is therefore contrary to s. 7 of the Charter and cannot be upheld under s. 1 of the Charter.

[3] The Crown submits that it is not necessary to deal with these constitutional issues since the appropriate total sentence for this and the other counts far exceeds the mandatory minimum sentence under s. 279.02(2) of the Criminal Code.

[4] Counsel have not provided any cases and I am not aware of any decisions in Ontario declaring that this mandatory minimum sentence violates the Charter. In R. v. Webber, 2019 NSSC 14, the Nova Scotia Supreme Court found that this minimum mandatory sentence violated s. 12 of the Charter and could not be saved by s. 1 of the Charter.

[5] In R. v. Nur, 2015 SCC at para. 65 the court concluded that a provision can be “challenged on the ground that it would impose a grossly disproportionate sentence either on the offender or on other persons in reasonably foreseeable situations.”

[6] Based on Nur, the applicant submits that the reasonable hypotheticals are defined by the essential elements of the offence. If the essential elements of the offence are very broad there will be difficulty in attaching a mandatory minimum sentence because they can be committed in such different ways in a variety of circumstances. The applicant submits that the mandatory minimums for sexual services offences and human trafficking have been struck down because they are grossly disproportionate since the conduct underlying those offences is broadly defined.

[7] The applicant submits that based on her personal circumstances and involvement in this offence she is at the lowest level of culpability and should be at least eligible for consideration of a conditional sentence.

[8] The Crown submits that a potential sentence of less than two years cannot address the situation, as here, where the accused receives a material benefit from the sexual exploitation of a child. In support the Crown refers to the comments of the SCC in R. v. Friesen, 2020 SCC 9.

Analysis

[9] There is a broad range of reasonable hypothetical situations that could be captured as an offence contrary to s. 279.02(1) of the Criminal Code. This indictable offence carries a maximum prison term of 10 years. Charges under this section are routinely accompanied by various other serious offences related to human trafficking. The cumulative sentences in such cases, bearing in mind factors including totality and the need to reflect denunciation, will routinely attract significant penitentiary terms.

[10] It is difficult to see how this mandatory minimum sentence can survive when similar provisions for other offences related to human trafficking have been struck down under the Charter. The maximum potential sentence will continue to properly reflect the seriousness of such offences.

[11] I find that the statutory minimum sentence in this section contravenes ss. 7 and 12 of the Charter and cannot be saved by s. 1 of the Charter.

The Result

[12] The application is allowed. The mandatory minimum sentence in s. 279.02(2) of the Criminal Code is struck down and of no force and effect.

B.P. O’Marra J. Released: November 29, 2024

COURT FILE NO.: CR-22-10000227 DATE: 20241129 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING Respondent – and – NIMO ALI Applicant

RULING B. P. O’MARRA J. Released: November 29, 2024