Professional Documents
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2024 Onca 178
2024 Onca 178
BETWEEN
Respondent
and
Arian Faroughi
Appellant
Zarnett J.A.:
Overview
purchase sexual services from underage persons. To this end, advertisements for
undercover officer, posing as an escort, would describe themself as under the age
the prospective customer ultimately visited the agreed upon location they were
arrested.
[2] On March 4, 2018, the appellant, who was 19 years old, responded to an
text exchange, the undercover officer, posing as a female escort, asked if the
appellant was okay with her not yet being 18. The appellant answered that he was
okay with it and, in response to questions he asked, was told that she was 14 and
location, and a price. He was arrested when he arrived at the location with cash in
[3] Following trial by judge and jury, the appellant was found guilty of two counts
of child luring, contrary to ss. 172.1(1)(a) and (b) of the Criminal Code of Canada,
R.S.C. 1985, c. C-46 , and one count of communicating for the purpose of obtaining
for consideration the sexual services of a person under the age of 18, contrary to
[4] After the trial, the appellant brought an application to stay his convictions,
alleging entrapment. One of the appellant’s arguments was that the police induced
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him to commit the offences. After reviewing the totality of the circumstances, the
trial judge was satisfied that the appellant was not entrapped, and he dismissed
[5] At sentencing, the trial judge stayed, pursuant to Kienapple v. R., [1975] 1
S.C.R. 729, the child luring conviction under s. 172.1(1)(a) of the Code. He
proceeded to sentence the appellant for: (i) the child luring offence under
for the purpose of facilitating the offence of invitation to sexual touching); and
(ii) the communication offence under s. 286.1(2) of the Code (communicating for
the purpose of obtaining, for consideration, sexual services from a person under
18).
[6] Pursuant to ss. 172.1(2)(a) and 286.1(2)(a) of the Code, the child luring and
of Rights and Freedoms. The appellant’s position was that a conditional discharge
was the fit sentence in this case, and therefore the mandatory minimums were
grossly disproportionate for him. The appellant also argued, in the alternative, that
foreseeable offenders.
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[7] The trial judge determined that the fit sentence for the appellant was seven
communication offence required by s. 286.1(2)(a) of the Code, the trial judge only
considered the constitutionality of the one year minimum for the child luring offence
prescribed by s. 172.1(2)(a) of the Code. While he was satisfied that the one-year
[8] The appellant appeals his conviction and seeks leave to appeal his
sentence. On his conviction appeal, the appellant argues that the trial judge erred
by: (1) misdirecting the jury on the mens rea requirements of the child luring
offence and the communication offence; and (2) dismissing the entrapment
application by failing to conclude that the appellant was induced by the police.
[9] On his sentence appeal, the appellant argues that the sentence of seven
months’ imprisonment was the result of an error in principle and was unfit. In the
1 The trial judge’s determination that s. 172.1(2)(a) infringed s. 12 and was of no force or effect is not in
issue. This mandatory minimum, and its six-month counterpart under. s. 172.1(2)(b) for child luring offences
prosecuted by way of summary conviction, were found by the Supreme Court of Canada to infringe the
Charter in R. v. Bertrand Marchand, 2023 SCC 26, 487 D.L.R. (4th) 201.
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evidence that he presented no risk of reoffending. When the competing factors are
properly considered, the appellant submits that the fit sentence is a conditional
sentence. The appellant contends that the trial judge erred by failing to declare the
the Charter and of no force and effect, because it would result in a grossly
[10] To support his sentence appeal, the appellant also brought an application to
introduce fresh evidence. The fresh evidence consists of an affidavit from the
appellant, outlining the developments in his life following the sentencing hearing.
[11] In the reasons that follow, I explain why the appellant’s conviction appeal is
dismissed. I do not accept the appellant's argument that the trial judge misdirected
2 The appellant originally raised one further ground of appeal against his sentence in his factum: that the
trial judge erred in refusing to stay the conviction under s. 286.1(2) pursuant to Kienapple. The appellant’s
factum was written in April of 2021, years before the appeal was ultimately argued, and the appellant did
not advance this ground of appeal during oral argument in light of R. v. Haniffa, 2021 ONCA 326, 155 O.R.
(3d) 523, aff’d on other grounds 2022 SCC 46, 475 D.L.R. (4th) 496.
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the jury on the mens rea requirements of the offences, nor do I see any error in the
sentence, allow the sentence appeal, and strike down the six-month mandatory
– which could reflect the principles of denunciation and deterrence and the
principle of restraint for this youthful first offender – was not available on the child
luring count at the time of sentencing due to the 14-year maximum punishment
conditional sentence has been removed due to a change in the relevant Code
provisions. When there has been a change in the law of this nature between
principle because, through no fault of their own, they did not consider relevant
factors. In light of the exceptional mitigating factors present here, this “error” had
the appellant’s sentence may have been different had the appellant had the benefit
of the current law at the time he was sentenced. Appellate intervention is therefore
warranted.
[13] Taking into account all relevant factors and the fresh evidence of the
appellant’s current medical condition, the fit sentence for the appellant is a nine-
therefore unconstitutional.
[14] At 3:14 p.m. on March 4, 2018, the appellant sent a text to a number
been placed there by Officer Cober, an undercover police officer working within
Project Raphael. It was titled “New Young n Fresh - 18 - 18”. The advertisement
[15] The appellant’s text said: “Hey babe you available[?]”. Officer Cober, posing
as an escort, replied to the appellant’s text confirming that “she” was available. A
text exchange ensued. About 40 minutes after the appellant’s initial text, Officer
Cober asked, “Do you mind if I’m not 18 yet babe?”. The appellant subsequently
replied, “I’m okay with it”. He also replied by asking for her specific age. Officer
Cober answered, “14 but i turn 15 soon hun”. Later in the conversation, when the
appellant asked the escort if she was in Grade 10, Officer Cober stated, “No grade
8”.
[16] During the text conversation, the appellant arranged for a two-hour
encounter that, in exchange for $220, would include oral and protected sex, and
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an opportunity to ejaculate four times. The appellant also requested a “gfe”; Officer
escort, but then re-engaged. At 4:16 p.m. he texted, stating “Nvm cant come sorry”.
Officer Cober replied, “Np bye”. At 4:31 p.m., the appellant re-commenced the text
conversation, saying he could “be there by 5”, and at 4:35 p.m. he answered
“Yeah” to the question “Are u coming?”. At 4:39 p.m., he texted saying “Nvm i wont
be able to come”. In response, Officer Cober stated, “Stop playing games” and
“U coming or not”. At 4:49 p.m. the appellant texted, “I’m coming”. Further texts
[18] The appellant ultimately arrived at the specified hotel at 5:54 p.m., where he
was arrested. The appellant had $220 cash on his person, the negotiated price of
[19] The appellant testified at trial that most of the text conversation took place
while he was at a bar with his friend, Mr. Yusaf.3 He claimed that Mr. Yusaf was
the individual who encouraged him to seek an escort after he disclosed that he
never had a girlfriend or sex before. The appellant explained that this was his first
time on a website like Backpage.com and that he was just “goofing around” with
his friend. According to the appellant, Mr. Yusaf told him that escorts often lie about
3 In the transcripts, this witness’ last name is spelled “Yusef”, but in the decision below it is spelled “Yusaf”.
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their age, so he never believed the escort was underage. He also claimed he did
not intend to meet the escort for sexual services. In cross-examination, the
[20] The appellant acknowledged that, by the time he called off the plan for a
second time, he was alone in his car. When asked to explain why he re-engaged,
the appellant cited the supposed escort’s messages in response to his statement
that he was not coming. He said that he feared the possibility that if he did not
provide the escort with the money, she may find his information using his cell
[21] During closing submissions, the Crown asked the jury to disbelieve the
appellant’s testimony, describing the appellant’s assertion that he feared the escort
as “farfetched and unbelievable”. The Crown also questioned the plausibility of the
odd that the appellant never attempted to contact Mr. Yusaf after his arrest.
[22] As noted, the appellant was found guilty by the jury of two counts of child
luring contrary to ss. 172.1(1)(a) and (b) of the Code and one count of sexual
appeal relates to the propriety of the jury charge and the trial judge’s entrapment
ruling.
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[23] The appellant argues that the trial judge misdirected the jury on the mens rea
[24] This ground of appeal is assessed taking a functional approach to the review
of the jury charge. An alleged error in charging the jury is considered in light of the
entire charge and the trial as a whole. The key question is whether the charge
enabled the jury to decide the case according to the law and the evidence: R. v.
Calnen, 2019 SCC 6, [2019] 1 S.C.R. 301, at paras. 8-9; R. v. Goforth, 2022 SCC
25, 470 D.L.R. (4th) 617, at paras. 20-21; R. v. Abdullahi, 2023 SCC 19, 483 D.L.R.
[25] First the appellant submits that the charge grouped together separate
components of the mens rea of the offences in a manner that would have confused
the jury. The mens rea of the offences has both a knowledge component – the
who was underage – and a purpose component – the appellant must have
[26] The appellant points to the language in one portion of the charge. He
submits that in it, the trial judge improperly grouped the knowledge and purpose
components, in the sense of suggesting that the jury could only find the appellant
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not guilty if they believed, or were left with a reasonable doubt by, the appellant’s
[27] These passages of the charge refer, in summary form, to what the evidence
of the appellant actually was – that he did not intend to have sexual relations for
consideration with anyone (i.e. he did not subjectively meet the purpose
component) and that he did not believe that the person he was dealing with and
agreeing to meet was under the age of 18 (i.e. he did not subjectively meet the
knowledge component). The jury would have understood that the trial judge was
[28] But, when the charge is considered as a whole, these passages would not
have left the jury with the impression that the appellant had to negate, or raise a
[29] The trial judge, before reviewing the specific elements of each offence,
emphasized for the jury that there were “two critical issues that weave their way”
[30] The trial judge then outlined the essential elements of each offence, carefully
describing that the knowledge and purpose components were separate essential
elements; that the Crown had to prove each beyond a reasonable doubt; and that
a reasonable doubt on any element was sufficient for an acquittal, but only proof
[31] For example, for the child luring offence under s. 172.1(1)(b) of the Code,
he said:
[32] And for the communication offence under s. 286.1(2) of the Code, he told
the jury:
[34] These instructions, taken together, would have made it clear to the jury that
the appellant’s evidence did not need to be accepted, or raise a reasonable doubt,
on all elements for an acquittal to result. The jury would have understood that if
they accepted the appellant’s evidence or if it raised a reasonable doubt about any
element of the offences – for example the knowledge component or the purpose
[35] The appellant’s second submission on the mens rea point is that the trial
judge did not explain to the jury that the purpose component of the offences
argues that the trial judge wrongly left the impression that the act of offering money
for sexual services disposed of the purpose element. He submits that, while the
the appellant’s mind, it does not necessarily prove his subjective purpose. He says
the trial judge conflated the act of communicating and the state of mind of the
appellant, pointing to the portion of the charge in which the trial judge stated:
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[36] I do not accept this argument. When the charge is considered as a whole,
the jury would have understood the need to consider the appellant’s subjective
state of mind. In his instructions, the trial judge told the jury they had to determine
whether the purpose of the communication was to obtain for consideration the
sexual services of an underage person, and that they had to consider all of the
[37] And he referred to the defence evidence that the actual purpose was absent:
[38] Taking the instructions as a whole, it would have been clear to the jury that
exchange for sexual services and find, beyond a reasonable doubt, that these
[39] The portion of the impugned passage that I have underlined above (in
para. 35) would not have confused the jury, in light of the charge as a whole. As
was discussed at the pre-charge conference, its goal was to clarify for the jury what
in law constituted consideration. In my view, it would not have had the effect of
distracting the jury from their task of determining the appellant’s subjective state of
[40] Finally, the appellant contends that the charge did not make clear that the
that the jury would not have appreciated that if they believed the appellant intended
to secure sexual services at the beginning of the text exchange but changed his
mind sometime after being told the “escort” was under 18, they could not convict.
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[41] Contrary to this submission, however, the instructions clearly stated that the
jury needed to be satisfied beyond a reasonable doubt that “the purpose of the
under the age of 18”. As such, the jury would have recognized that, for a finding of
guilt, they needed to be satisfied that the appellant believed the undercover officer,
who was both the person he was communicating with and the one offering sexual
services, was under the age of 18 at the time he was communicating with her for
a prohibited purpose.
(d) Conclusion
[42] The jury was properly equipped to decide the case according to the law and
[43] Entrapment is a form of abuse of process, the remedy for which is a stay of
proceedings. In R. v. Mack, [1988] 2 S.C.R. 903, at pp. 964-65, the Supreme Court
of Canada outlined the two ways in which entrapment can occur: (a) the authorities
pursuant to a bona fide inquiry; or (b) although having such a reasonable suspicion
[44] At the oral hearing of the appeal, the appellant abandoned his argument on
the first manner of entrapment in light of R. v. Ramelson, 2022 SCC 44, 475 D.L.R.
arguing that the trial judge erred in his determination that the police did not induce
him to commit the offences. The appellant submits that the police knowingly
exploited his vulnerabilities of being youthful and nervous by pressuring him with
statements like “Stop playing games” and “U coming or not” after he indicated a
[46] In his reasons dismissing the entrapment application, the trial judge found
that it was “clear” the appellant was not induced to commit the offences. He noted
that: (a) the texts revealed no threat or coercion by the police; (b) the appellant
initiated the text exchanges, was actively involved in the conversation, and showed
an understanding of language associated with sex work; and (c) the appellant
[47] The inducement branch of the entrapment doctrine provides that the police
vulnerability and whether an average person in the position of the accused would
be induced: Mack, at p. 966. I agree with the Crown that the appellant’s argument
and his explanations for feeling induced, revealed only after the police conduct had
occurred, must be rejected. Given that the entrapment doctrine acts as a check on
police conduct that society may otherwise find intolerable, the focus of the
“the assessment is objective and focuses on the police’s conduct, not on that
conduct’s effect ‘on the accused’s state of mind’”: R. v. Jaffer, 2022 SCC 45, 475
[48] The trial judge was entitled to conclude that the appellant was not induced.
While the appellant’s texts revealed he was youthful – he said he was 20 years old
– the entirety of the conversation does not suggest the police exploited a particular
vulnerability that should have been known to them. The trial judge found that the
“Stop playing games” and “U coming or not”, the appellant re-engaged after a nine-
negotiate the price and refused to bring the cigarettes requested by the undercover
officer. I see no error in the trial judge’s conclusion that the statements of the
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undercover officer would not have induced an average person in the position of
the appellant.
that impacted the sentence, an appellate court will not intervene: R. v. Friesen,
2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 25-26; R. v. Lacasse, 2015 SCC 64,
[2015] 3 S.C.R. 1089, at para. 44. However, if one of the above errors is identified,
course, even if this court is permitted to sentence afresh, it is bound to respect any
mandatory minimum sentence for the offence in question, unless the mandatory
[51] The appellant submits that the trial judge ought to have imposed a
(i) the trial judge erred in principle in a way that impacted the sentence or that he
sentence; and (iii) the six-month mandatory minimum sentence applicable to the
First, he submits that the trial judge overemphasized the sole aggravating factor in
this case, which was the degree of sexual activity that the appellant arranged to
prospects. In oral argument, the appellant suggested that the trial judge
“devalued” these mitigating factors. The appellant also contends the concurrent
[53] When the competing factors are properly weighed, the appellant submits
sentence.
[54] The appellant argues that the mandatory minimum in s. 286.1(2)(a) is not an
disproportionate against him. He notes that prior Ontario Superior Court cases
[55] In contrast, the Crown argues that the trial judge properly weighed the
aggravating and mitigating factors, and that the sentence he imposed was fit. In
the appellant arranged extensive sexual activity with someone who he believed to
be 14 years old elevated the seriousness of the offences. As well, the trial judge
below the typical range of 12-24 months that was based on pre-Friesen caselaw.
demonstrably unfit sentence, the Crown contends that the mandatory minimum
[56] I will proceed to analyze the appellant’s sentence appeal in the following
steps. First, I briefly summarize the trial judge’s sentencing reasons. Second,
I explain why the failure of the trial judge to consider a conditional sentence – an
alternative to incarceration that was not available at the time of sentencing on the
child luring count but is available now due to a change in the relevant Code
Third, I discuss why I would admit the appellant’s fresh evidence. Fourth, I
conclude that concurrent conditional sentences of nine months are fit. Finally, I
[57] When ascertaining the fit sentence for the appellant, the trial judge began
his analysis by outlining the circumstances of the offence and the offender.
[58] Regarding the circumstances of the offence, the trial judge referred to the
mens rea requirements of the child luring and communication offences. By finding
the appellant guilty of the offences, the jury had been satisfied beyond a
reasonable doubt that: (i) the appellant believed the person with whom he was
communicating was under the age of 16; and (ii) the purpose of the communication
was to have sexual relations with that person. To the extent that it was unclear
from the jury’s verdict, the trial judge was satisfied that the appellant, and not Mr.
Yusaf, was the “driving force” behind the communications, rejecting the appellant’s
[59] Regarding the circumstances of the offender, the trial judge noted that:
(i) the appellant was 19 at the time of the offence; (ii) he had immigrated from Iran
to Canada in 2010 with his family which was supportive, close-knit, and loving;
(iii) sex was a topic never discussed in his home; and (iv) he had done well in
[60] The trial judge then referenced a report of Dr. Julian Gojer, a psychiatrist
who assessed the appellant at the request of his trial counsel. Dr. Gojer found that
or any sexual deviation. In Dr. Gojer’s opinion, the appellant, though maintaining
his position that he thought he was dealing with a person over 18, was remorseful,
and understands that sexual contact with underage persons is wrong as well as
the harm associated with underage prostitution. Dr. Gojer was of the view that the
therapy with a social worker to assist with dating and improve sociosexual skills.
Dr. Gojer concluded that the appellant did not pose any risk to society. He
considered the appellant’s actions to have been “a product of very poor judgment
experiences”.
[61] The trial judge also referred to the opinion of Dr. Monik Kalia, a forensic
sessions after he was charged with the offences at issue. Dr. Kalia opined that,
although maintaining that he thought the person he was dealing with was above
the age of 18, the appellant was insightful about the inappropriateness of “contact
with underaged children and the social and moral implications of prostitution”.
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Dr. Kalia also found no signs of mental illness, impulsivity, or antisocial attitudes
or behaviours.
hearing and his completion of 313 hours of community service for Habitat for
[63] The trial judge identified the aggravating factor to be the degree of sexual
activity that the appellant arranged to engage in with a 14-year-old. The trial judge
stated that the offences were serious and the sentencing range was 12-24 months.
He cited R. v. Cowell, 2019 ONCA 972, 151 O.R. (3d) 215, leave to appeal refused,
[2020] S.C.C.A. No. 54, to support his conclusion that this range was appropriate
[64] The trial judge rejected the defence submission that a non-custodial
sentence would be fit. He stated that the appellant’s “highly culpable” behaviour
[65] The trial judge recognized that the appellant’s mitigating factors served to
reduce a fit sentence for the appellant below the typical range. However, he
distinguished the appellant’s case from others where sentences as low as three
months were imposed, noting that those involved guilty pleas with supporting
[66] Ultimately, the trial judge was satisfied the fit sentence for each offence was
seven months’ imprisonment, to be served concurrently. While the trial judge held
offence was not grossly disproportionate against the appellant, he was satisfied
communication offence.
(a) Introduction
[67] I accept the appellant’s submission that the sentence imposed does not give
proper effect to the mitigating factors and thus to the principle of restraint which
Because the appellant was challenging the validity of the mandatory minimum
sentences, the trial judge was obliged to first consider what would be a fit sentence
for the appellant without regard to restrictions on that sentence due to the
mandatory minimums. While the trial judge did proceed in that way, and considered
custodial alternatives.
available for the child luring count because it carried a maximum sentence of
14 years. Between the time of sentencing and this appeal, there has been an
sentence arising from the 14-year maximum sentence no longer exists. As a result
of this change in the law, and through no fault of the trial judge, the appropriateness
principle that can justify appellate intervention: R. v. Bunn, 2000 SCC 9, [2000] 1
[69] The principle of restraint is codified in ss. 718.2(d) and 718.2(e) of the Code,
which require a sentencing judge to take into consideration “all available sanctions,
para. 90, it is due to the restraint principle that the failure to seriously consider a
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conditional sentence “when the statutory prerequisites are met … may well
the case involves a first-time offender who is youthful: R. v. Sousa, 2023 ONCA
incarceration will still be appropriate for first-time offenders who commit child luring:
see e.g., Cowell, at para. 103; R. v. Jaffer, 2021 ONCA 325, 155 O.R. (3d) 535
(“Jaffer (ONCA)”), at para. 28, aff’d on other grounds 2022 SCC 45, 475 D.L.R.
(4th) 490. This is consistent with the instruction in Friesen that the objectives of
sexual crimes against children: at para. 101. When a judge fails to do so, and
the gravity of the offence, they commit an error justifying appellate intervention: R.
v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, at paras. 32-33.
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denunciation and deterrence: Proulx, at paras. 102, 107; R. v. Jacko, 2010 ONCA
452, 101 O.R. (3d) 1, at paras. 71-73. And the restraint principle continues to be
principles are denunciation and deterrence: R. v. A.B., 2023 ONCA 254, at para.
55; R. v. S.K., 2021 ONCA 619, at para. 12. This court has recognized that, in
convicted of sexual offences against children: see e.g., R. v. M.M., 2022 ONCA
441, at para. 16; R. v. B.M., 2023 ONCA 224, 166 O.R. (3d) 721, at para. 2.
[74] Whether the restraint principle has been given appropriate consideration is
sentence. This was the context for the trial judge’s statement that a non-custodial
sentence was “simply not appropriate given the seriousness of the offence and the
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typical range for these offences”. Although the Crown relies on this comment to
show that the trial judge did consider, and reject, non-custodial sentencing options
light of the non-custodial sentencing options that were available to the trial judge
at the time. It does not show that the trial judge, in applying the restraint principle,
sentence was not available at the time on the child luring count, not because of the
mandatory minimum which the trial judge struck down as unconstitutional, but
[76] At the time the appellant committed the offences in March of 2018, through
to the time the trial judge released his sentencing decision in February of 2020,
indictment for which the maximum term of imprisonment is 14 years or life. At the
time of sentencing (and now), the child luring count provided for a maximum term
Crown did in this case. This meant that a conditional sentence was not available
for the child luring count at the time of sentencing.4 The trial judge was alive to this
and specifically adverted to the unavailability of a conditional sentence for the child
4 I note that the sentencing outcome requested by defence counsel below – a conditional discharge – was
also not available for the child luring count at the time (and still is not) given the 14-year maximum sentence,
irrespective of the mandatory minimums: see s. 730 of the Criminal Code. There was some discussion
about this at the sentencing hearing.
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luring count due to the 14-year maximum punishment. He said, at para. 41 of his
[77] Between sentencing and the time this appeal was argued, Parliament
passed An Act to amend the Criminal Code and the Controlled Drugs and
Substances Act, S.C. 2022, c. 15, which received royal assent on November 17,
2022 and replaced the 14-year maximum restriction previously in s. 742.1(c) with
a new restriction that has no application to this appeal. The mandatory minimum
sentence for child luring when prosecuted by indictment was struck down by the
2023 SCC 26, 487 D.L.R. (4th) 201). Therefore, a conditional sentence is now
[78] When there has been a change in the law of this nature between sentencing
because, through no fault of their own, they did not consider relevant factors. As
the Supreme Court explained in Bunn, at para. 21, which was also a case where
appeal:
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See also R. v. Lavergne, 2023 ONCA 592, 429 C.C.C. (3d) 444, at para. 16; R. v.
[79] When read as a whole, and in light of the principle in Bunn, the sentencing
[80] Although the trial judge made reference to mitigating factors in reducing the
custodial sentence below what he considered the typical range, the trial judge’s
reasons contain no discussion about how a carceral sentence was compatible with
Marzouk, 2021 ONCA 855, at para. 23; R. v. Francis, 2022 ONCA 729, 164 O.R.
(3d) 401, at para. 81. And although the trial judge referenced the appellant’s
would still promote, rather than hinder, his rehabilitation. This reinforces the idea
that the principle of restraint was not considered in the manner that it should have
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been had the alternative of a conditional sentence been available: R. v. Ali, 2022
conditional sentence to meet those objectives for a teenaged first offender like the
appellant. For example, at para. 30 of his reasons the trial judge cited cases
involving older offenders, such as Cowell. He did not meaningfully distinguish the
appellant from those cases: for a similar error, see R. v. Folino (2005), 77 O.R.
[83] The appellant was very young at the time of the offences and exhibited
predominant principles in sentencing for these offences, but the restraint principle
remains applicable and has a heightened importance when the first-time offender
incarceration was the fit sentence. Through no fault of his own, the trial judge was
deterrence while advancing rehabilitation. The result is that the trial judge did not
properly consider and give effect to the restraint principle in determining the
sentence that was fit in these circumstances. This is treated as an error in principle:
[84] Not every case where a conditional sentence was not available to the
fact that he was a first-time offender, and the other mitigating factors discussed
below – I conclude that there has been an impact on the sentence. In other words,
may have been different had the appellant had the benefit of the current law at the
[87] The appellant seeks to introduce an affidavit from himself, dated May 26,
2023, that outlines developments in his life since the trial judge imposed his
recently co-founded his own business. Most notably he describes the recent onset
of significant health problems including severe back pain and urinary problems that
required surgery. As part of his recovery, the appellant walks with a cane, and
[88] This court has broad discretion under s. 683(1) of the Code to admit fresh
The Queen, [1980] 1 S.C.R. 759: see R. v. Lévesque, 2000 SCC 47, [2000] 2
S.C.R. 487, at para. 22. The Supreme Court in Lévesque articulated Palmer criteria
[89] I am satisfied that the Palmer criteria are met. There can be little dispute
about the first three factors. With respect to the fourth factor, although some of the
fresh evidence is confirmatory of the positive path the appellant’s life was expected
to take based on the information available at the sentencing hearing, the evidence
of health issues is completely new. This court has recognized that the development
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cases, make incarceration harsher than anticipated at the time of sentencing: see
health issues post-sentence may not always warrant appellate interference with an
offender’s sentence, in this case there is a real risk that the appellant’s physical
limitations will heighten the harms of incarceration that are often experienced by
youthful offenders: see R. v. Hilbach, 2023 SCC 3, 477 D.L.R. (5th) 84, at para.
106. Even in cases of sexual offences against children a health issue can be an
exceptional reason why a conditional sentence, rather than a custodial one, would
together with the other evidence, would have affected the determination of whether
grant the appellant’s fresh evidence application and consider the affidavit when
[91] With the trial judge’s sentence set aside, this court must determine a fit
[92] This determination starts with the recognition that the fundamental
para. 30; R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 61. The
[93] In terms of the gravity of the appellant’s offences, there is no question that
they were serious, particularly in light of their mens rea requirements. As Friesen
made clear, courts must impose sentences that are commensurate with the gravity
understanding of the severity of the harm arising from such offences, sentences
for these crimes must increase, and mid-single digit penitentiary terms should be
[94] In ascertaining the gravity of sexual offences against children, courts must
give effect to (a) the inherent wrongfulness of these offences; (b) the potential harm
to children that flows from these offences, and (c) the actual harm that children
suffer as a result of these offences: Friesen, at para. 76. Because of their inherent
wrongfulness, inchoate offences that occur within the context of a police sting
operation, such as the ones committed by the appellant, should never be viewed
accused gets no credit for this factor: Friesen, at para. 93. In the child luring
facilitated; (b) the duration and frequency of the communications; and (c) the age
difference between the parties: see R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R.
3, at paras. 146-47.
[95] When these considerations are weighed, it remains undoubtedly true that
the offences were serious, recognizing that the appellant communicated with
someone who he believed to be below the age of 16 for the purpose of obtaining
relevant, including: (a) the mens rea of the offence; (b) the offender’s conduct in
the commission of the offence; (c) the offender’s motive; and (d) the offender’s
personal circumstances: R. v. Hills, 2023 SCC 2, 477 D.L.R. (4th) 1, at para. 58.
The mens rea of the appellant’s offences are highly morally blameworthy: see
[97] There are also factors that attenuate the appellant’s culpability including his
[98] A fit sentence must also consider the appellant’s other mitigating factors,
including: his lack of criminal record, his sincere remorse, his pro-social lifestyle,
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his family support, his complete lack of risk to the public, his proactive participation
in sexual offence treatment, his proactive volunteer work, and, as indicated in his
this appellant require this court, while giving due consideration to denunciation and
sentences will rarely be appropriate for sexual offences against children: see M.M.,
incarceration will not be appropriate. For example, without creating any bright-line
rules, this court in M.M. suggested that some offenders experiencing medical
hardship that cannot be adequately addressed within a correctional facility may fall
within these circumstances: at para. 16. As I will explain, I am satisfied that, given
the appellant’s immaturity and sexual inexperience at the time of the offence, the
fact that this was his first offence, his recent medical hardships, and his impressive
efforts in taking accountability for his actions and serving his community post-
[100] To be clear, nothing in these reasons should be taken as suggesting that the
sentencing range for these offences has changed, nor should it be taken as
[101] However, other Project Raphael cases where carceral sentences were
found to be appropriate are clearly distinguishable from the case at bar. In the
Aguilar, 2022 ONCA 353. This court also upheld or substituted carceral sentences
however, remain distinct from those cases because he was a teenager at the time
of the offences and he has other significant mitigating factors, particularly his
community service.
must engage in a two-step process. First, the court must make a preliminary
at para. 58; R. v. Scholz, 2021 ONCA 506, 156 O.R. (3d) 561, at paras. 26-27.
enumerated under s. 742.1 of the Code, the court must determine whether a
[103] In this case, the preliminary step is satisfied because probation would
years or greater would be excessive. Moreover, the appellant meets the other
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fit sentence can still consider the adequacy of this alternative to a carceral
context of sexual offences against children, conditional sentences will often fail to
for these kinds of offences: see Friesen, at paras. 101-5. As stated in Proulx, at
para. 114, “[w]here punitive objectives such as denunciation and deterrence are
[105] However, because the appellant was a first-time offender and was still a
teenager at the time of the offence, the restraint principle, and the associated need
importance. Similarly, the recent onset of the appellant’s significant physical health
completing his engineering degree, and volunteering hundreds of hours for charity,
the appellant has taken real steps to rehabilitate, provide reparations to the
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need for the sentence to reflect the principles of denunciation and deterrence while
sentences of nine months are fit: see Proulx, at para. 100. To adequately achieve
include punitive conditions, such as house arrest: Proulx, at paras. 102-3, 107.
These objectives will also be achieved by the stigma associated with the
true here. There is a real risk that a carceral sentence, even of a limited duration,
would expose this youthful offender to harm and interfere with his rehabilitation.
[107] The final issue on the appellant’s sentence appeal is whether the fit
anyone for the purpose of obtaining for consideration, the sexual services of a
whether a mandatory minimum complies with s. 12 of the Charter. First, the court
must assess what constitutes a fit and proportionate sentence having regard to the
objectives and principles of sentencing in the Code: at para. 40. Second, the court
must assess whether the impugned provision requires the imposition of a sentence
that is grossly disproportionate to the fit and proportionate sentence: at para. 40.
This two-part assessment can proceed on the basis of either the actual offender
before the court or another offender in a reasonably foreseeable case: at para. 41.
[109] The appellant submits that the imposition of the mandatory minimum against
[110] Trial court decisions in Ontario and Alberta have struck down the six-month
27 C.R. (7th) 191; Sa Majesté La Reine c. Jacques Lalonde, 2017 ONCS 2181; R.
v. C.D.R., 2020 ONSC 645; R. v. Charboneau, 2019 ABQB 882, 448 C.R.R. (2d)
108; R. v. Alvi, 2018 ABPC 136, 73 Alta. L.R. (6th) 407. In R. v. J.L.M., 2017 BCCA
258, 353 C.C.C. (3d) 40, leave to appeal refused, [2017] S.C.C.A. No. 386, the
Court of Appeal for British Columbia found the six-month mandatory minimum in
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s. 286.1(2)(a) grossly disproportionate for the offender before the Court, who was
a first-time Indigenous offender suffering from various health problems. The Court
end of the sentencing range for that offender, which was a suspended sentence,
and was therefore grossly disproportionate: at paras. 53-55. The Court also went
minimum in C.M. In that case, the Court held that a sentence of 6 months was not
grossly disproportionate for the 55-year-old offender before the Court. The Court
hypotheticals because they had not been considered by the trial judge and were
[112] The Ontario Court of Justice followed C.M. and declined to strike down the
mandatory minimum in R. v. Dawson, 2022 ONCJ 540. The court held that the
mandatory minimum would not be grossly disproportionate for Mr. Dawson, who
was not a young offender, and who the court emphasized had sought to exploit the
planning and premeditation: at paras. 66-67. The court also declined to follow the
hypotheticals because they pre-dated Friesen (and in some cases, dealt with the
predecessor to s. 286.1(2) rather than s. 286.1(2) itself). In both C.M. and Dawson,
[113] Here, there is no need to consider whether the mandatory minimum fails on
the basis of the reasonable hypotheticals put forward in prior cases (the parties did
not argue any further hypotheticals). The unique circumstances of the offender
before the court make the six-month mandatory minimum punishment grossly
[114] I have already determined the fit sentence for this appellant to be concurrent
conditional sentences of nine months. I recognize that the standard for gross
warranted (but for the mandatory minimum), and yet not meet the constitutional
the scope and reach of the offence; (b) the effects of the penalty on the offender;
and (c) the penalty, including the balance struck by its objectives: Hills, at
para. 122.
[116] Regarding the scope of s. 286.1(2), it is clear that the provision captures a
range of conduct as it prohibits both obtaining for consideration the sexual services
because of the mens rea associated with both modes of liability, there will be a
degree of variation in the offence’s gravity that will impact what constitutes a fit
sentence: R. v. Alcorn, 2021 MBCA 101, 407 C.C.C. (3d) 395, at paras. 54-55,
[117] Similarly, as made clear in this case, s. 286.1(2) captures offenders who
may be very close in age to the victim and therefore have diminished culpability.
sexual offences: see R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670, at paras. 38-
40; R. v. B.J.T., 2019 ONCA 694, 378 C.C.C. (3d) 238, at paras. 72-75; R. v.
Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at paras. 150-155; and R. v. Safieh,
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2021 ONCA 643, 158 O.R. (3d) 224, at paras. 18-20. The very young age of the
[118] When comparing the effects of the mandatory minimum on the appellant,
I would note that the Supreme Court has already recognized that when a
[t]he disparity … is more readily apparent because the comparison involves two
different types of punishment and the effects are often more extreme”: Hills, at
para. 48. This is particularly true in circumstances where, like here, the offender is
very young and currently suffers from a physical disability: Hills, at paras. 135, 165.
[119] With respect to the appellant’s youth, in Badali, Lalonde, C.D.R. and J.L.M.,
youthful offender is concerned. This concern flows both from the lessened moral
culpability that may exist in a youthful offender and the potentially harmful effects
of prison on them. For youthful first-time offenders, the fit sentence is the shortest
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possible sentence proportionate to the offence: see R. v. Brown, 2015 ONCA 361,
126 O.R. (3d) 797, at para. 7; R. v. Laine, 2015 ONCA 519, 338 O.A.C. 264, at
where the reformative needs of young people are met”: at para. 165, citing Clayton
C. Ruby, Sentencing, 10th ed. (Toronto: LexisNexis, 2020), at §5.191; see also
[120] In this case, the unchallenged expert opinion was that the appellant’s
offence was “a product of [his] very poor judgment as an immature sheltered 19-
sentence of six months would impede his recovery from his recent surgery. While
conditions of incarceration for six months will impact this offender in light of his
[122] The appellant’s affidavit indicates that he has received medical advice that
he requires at least twelve more months to fully recover from his surgery, and that
three time per week, and other prescribed exercises. Sending this appellant to jail
for six months would provide little societal benefit but would exact a severe cost on
[123] Finally, a consideration of the penalty and the balance it strikes between
sentencing objectives shows that, for this mandatory minimum as applied to this
noted, separating the appellant from the community, for which he poses no risk,
and placing him in a provincial facility, would only serve to further the objectives of
denunciation and deterrence. While those objectives are no doubt critical in light
where such an objective is crucial, fortifies the conclusion that this penalty is
infringes s. 12 of the Charter. Since the Crown did not advance any argument that
the s. 12 infringement may be justified under s. 1, I need not address this issue.
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Conclusion
[125] I would dismiss the appellant’s conviction appeal. I would admit the fresh
the Constitution Act, 1982. Concurrent conditional sentences of nine months are
mandatory conditions set out in s. 742.3(1) of the Code, the sentences will include
[126] Since we did not receive submissions on the precise language or details of
the proposed terms of the conditional sentences, counsel should confer and
provide the court with an agreed form of order. If counsel are unable to agree, they
should provide written outlines, not exceeding five pages, setting out the areas of,
and reasons for, disagreement about the terms, within ten days of the release of
these reasons. The court will then specify the precise terms. Until the sentence is
finalized, the appellant shall remain on release in accordance with the terms of his