COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cordeiro-Calouro, 2019 ONCA 1002

DATE: 20191218

DOCKET: C64734

Hoy A.C.J.O., Lauwers and Nordheimer JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Rui Alberto Cordeiro-Calouro

Appellant

Alan D. Gold and Alex I. Palamarek, for the appellant

Alexander Alvaro and Jennifer Trehearne, for the
    respondent

Heard: December 11, 2019

On appeal from the convictions entered by Justice Dale
    Parayeski of the Superior Court of Justice on September 14, 2017, and from the
    sentence imposed on February 12, 2018.

REASONS FOR DECISION

A.

OVERVIEW

[1]

Rui Alberto Cordeiro-Calouro appeals his conviction on two counts of
    dangerous driving causing death and one count of dangerous driving causing
    bodily harm. The appellant also seeks leave to appeal the sentence of 18 months
    concurrent on the two counts of dangerous driving causing death and the
    sentence of 15 months on the one count of dangerous driving causing bodily harm.
    Finally, the appellant seeks to adduce fresh evidence regarding his proficiency
    in the English language.

[2]

At the conclusion of the hearing, we allowed the appeal and ordered a
    new trial with reasons to follow. We now provide those reasons.

[3]

As we shall detail below, the trial judge refused to grant the appellant
    an adjournment on the date scheduled for his trial. This decision began a
    series of events that led to the appellant not receiving a fair trial.

B.

Analysis

[4]

The appellant had had difficulty retaining counsel. He had two lawyers
    prior to trial, both of whom ceased to act for him for different reasons.
    Consequently, the appellants trial date had been marked with or without
    counsel. On the trial date, new counsel appeared for the appellant. This
    counsel had appeared on prior occasions to advise the court that the appellant,
    who had financial constraints, was trying to amass the necessary funds to
    retain him. Counsel said that he was now prepared to go on the record, that
    there would be a re-election to judge alone, that this, together with other
    concessions, would reduce the length of trial from three weeks to five days,
    and that the appellant would waive any s. 11(b) issues arising from the delay.
    All of this, however, was premised on the appellant being granted a four-week adjournment
    so that counsel could properly prepare for the trial.

[5]

This was the second adjournment of his trial that had been sought by the
    appellant. Crown counsel opposed the adjournment citing, among other reasons,
    that he was not available to do the trial four weeks later. The trial judge was
    understandably concerned about delay. It had been five years since the events
    giving rise to the charges. The trial judge offered the appellants counsel a two-week
    adjournment, but counsel said that would be an inadequate amount of time for
    him to properly prepare, including preparing the defence expert witness.
    Despite the fact that the adjournment sought was relatively short, that there
    was a s. 11(b) waiver, and the seriousness and complexity of the charges, the
    trial judge then refused the adjournment and ordered the trial to proceed with
    the appellant unrepresented.

[6]

When an accused person requests an adjournment of his trial on the date
    set for trial so that he can have counsel represent him, the trial judge is
    faced with two conflicting interests: the accuseds right to counsel, including
    counsel of choice, and the avoidance of delay. The resulting challenge is aptly
    expressed by Gillese J.A. in
R. v. Hazout,
(2005), 199 C.C.C. (3d) 474
    (Ont. C.A.), leave to appeal refused, [2005] S.C.C.A. No. 412, [2005] S.C.C.A.
    No. 501, at para. 31:

When an accused person requests an adjournment of his or her
    trial on the date set for trial, the trial judge is required to balance two
    rights. The first is the accused's constitutional right to be represented by
    counsel including, when possible, counsel of choice. This is a fundamental
    right vigorously guarded by the court. The second is the trial judge's right to
    control the trial process, a right that includes a wide discretion to grant and
    refuse adjournments. An appellate court should only interfere with a trial
    judge's balancing of these rights if the refusal of an adjournment deprives an
    accused of a fair trial or the appearance of a fair trial. [citations omitted]

[7]

In this case, the denial of the adjournment deprived the appellant of a
    fair trial. It opened the door to various errors in the manner in which this
    legally-complex trial was conducted that contributed to its unfairness.

[8]

After the trial judge ordered the trial to proceed, he told the appellant
    to review the two bankers boxes of disclosure. The evidence shows that the
    appellant cannot read or write. If this fact were not clear to the trial judge
    at the commencement of the trial, even though the appellant so advised him, the
    trial judge certainly became aware of it by the second day of the trial after
    the counsel, who had asked for the adjournment but been refused, took it upon
    himself to write to the trial judge and advise him, both of the fact that the
    appellant could not read or write, and that English was not the appellants
    first language. Notwithstanding this knowledge, the trial judge failed to take
    any steps to address the obvious problems that these facts would pose for the
    fair conduct of the proceedings. For example, the trial judge never asked the
    appellant whether he needed an interpreter. Instead, the trial judges reaction
    to counsels letter was to describe it as presumptuous and offensive.

[9]

As matters unfolded, the decision on whether the offences would be
    proven turned, to a large degree, on the expert evidence. Fortunately, the
    appellant had an expert witness to respond to the Crowns expert because one of
    his former lawyers had retained that expert. The defence expert was present to
    assist the appellant when the Crowns expert gave his evidence. After the
    Crowns expert completed his examination in chief, an issue arose as to how the
    cross-examination was going to take place because the appellant could not read his
    experts proposed questions for the Crowns expert. In response to this issue, the
    trial judge directed the defence expert to conduct the cross-examination of the
    Crowns expert, even though the defence expert pointed out that he was not a
    jurist. Indeed, the defence expert was not sure what questions he was allowed
    to ask.

[10]

There was no proper legal basis for the trial judge to instruct the
    defence expert to undertake the cross-examination of the Crowns expert. If the
    trial judge was concerned that the appellant was not able to properly conduct
    the cross-examination of the Crowns expert, as he should have been, then he
    ought to have considered whether it was necessary to appoint
amicus
for that purpose. The trial judge also appears to have forgotten the
    fundamental principle that experts are supposed to be non-partisan:
R. v. McManus
,
    2017 ONCA 188, 353 C.C.C. (3d) 493, at para. 67. It is hard to see how the
    defence expert could be expected to uphold his duty to be non-partisan once he
    was placed in the position of having to become the advocate for the appellant
    through cross-examination of the Crowns expert.

[11]

These errors occurred in the context of a trial that involved a legally
    complex issue of causation. The facts in this case were that the appellant was
    driving at a high rate of speed on a country road. He came over a hill to find
    another car coming in the other direction. The driver of the other car was impaired,
    and his car was over the centre line. The resulting collision caused the death
    of two people in the oncoming vehicle and serious injuries to one of the passengers
    in the appellants vehicle. The Crowns expert, while acknowledging that the collision
    would not have occurred had the other car not been over the centre line, also
    opined that, if the appellant had been travelling at a lower rate of speed, he
    would have had time to swerve and avoid the collision. The defence expert
    disagreed with the opinion of the Crowns expert.

[12]

It is not clear that the Crowns expert was entitled to give that latter
    opinion evidence. However, even if he was, the cross-examination of the expert,
    on that opinion, was of significant importance to the ultimate conclusion.

C.

Conclusion

[13]

For these reasons, the appeal was allowed. The conduct of this trial was
    anything but fair to the appellant. We would add that we are troubled by the
    failure of Crown counsel to intervene to ensure that the obvious problems with
    the manner in which the trial was proceeding were identified and corrected. On
    that point, we note that [t]he Crown is not an ordinary litigant. As a
    minister of justice, the Crown's undivided loyalty is to the proper
    administration of justice:
R v McNeil
, 2009 SCC 3, [2009] 1 S.C.R.
    66, at para. 49.

[14]

We ordered a new trial. In light of that conclusion, we do not reach the
    sentence appeal nor are we required to decide the appellants fresh evidence
    application.

[15]

Before concluding, we would add that the counsel, who wrote to the trial
    judge to draw his attention to the deficiencies from which the appellant
    suffered in terms of being unrepresented, is to be commended for taking the
    step that he did. His actions were in the best spirit of the conduct of members
    of the Bar and were in the interests of justice.

Alexandra
    Hoy A.C.J.O.

P.
    Lauwers J.A.

I.V.B.
    Nordheimer J.A.


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Cowell, 2019 ONCA 972

DATE: 20191211

DOCKET: C63899

Benotto, Miller and Trotter
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Douglas Cowell

Appellant

Melanie J. Webb, for the appellant

Jennifer A.Y. Trehearne,
    for the respondent

Heard: June 20,
    2019

On appeal from the conviction entered on August 12, 2016,
    and the sentence imposed on May 15, 2017, by Justice Ronald A. Minard of the
    Ontario Court of Justice.

Trotter
    J.A.: (for the majority on all issues except the constitutional challenge to
    the mandatory minimum sentence under s. 172.1(2)(a); dissenting on the
    mandatory minimum under s. 172.1(2)(a))

A.

introduction

[1]

Douglas Cowell was convicted of child luring, contrary to s. 172.1(1)(a)
    of the
Criminal Code
, R.S.C. 1985, c. C-46, and communicating with a
    person he believed to be under the age of eighteen years for the purpose of
    obtaining sexual services for consideration, contrary to s. 212(4).
[1]

[2]

The appellant was one of 104 people caught in a police sting operation.
    He responded to an advertisement posted on Backpage.com  a website used to buy
    and sell sex  of a person posing as an adolescent female. In fact, the ad was
    posted by a male police officer who used the name Kathy.

[3]

The appellant responded to the ad by texting can you squirt for me when
    eaten? Over the next two days, further messages were exchanged, in which the
    poster said that she was 16 years old. A meeting was arranged for the purpose
    of exchanging money for sex, possibly including anal intercourse. When the
    appellant arrived at the designated meeting place  a hotel room  he was
    arrested.

[4]

The appellant testified that he knew that he was not conversing with a
    16-year-old girl. He thought he was engaged in a role-play with someone who was
    25-28 years old. The appellant explained that, even though he went to the hotel
    room as arranged, he never intended to have sex with anyone. This was despite
    having $200 in his front pocket (the agreed upon price), more money in his
    wallet, as well as condoms which Kathy had just asked him to purchase.

[5]

The trial judge rejected the appellants evidence. He concluded that,
    while it would have been open to the Crown to rely upon the presumption in s.
    172.1(3) of the
Criminal Code
(subsequently declared unconstitutional
    in
R. v. Morrison
, 2019 SCC
15,
375
    C.C.C. (3d) 153 (
Morrison (SCC)
, discussed below), it was not
    necessary to do so. The trial judge found that the appellant actually believed
    that Kathy was 16 years old. The appellant was convicted.

[6]

The trial judge rejected the appellants constitutional challenge under
    s. 12 of the
Canadian Charter of Rights and Freedoms
to the mandatory
    minimum sentences in ss. 172.1(2)(a) and 212(4) of the
Criminal Code
. He
    sentenced the appellant to the mandatory minimum sentences of 12 months
    imprisonment under s. 172.1(2)(a), and 6 months under s. 212(4), to be served
    concurrently. He imposed probation for two years and made other collateral orders,
    including a $400 victim surcharge under s. 737 of the
Code
.

[7]

The appellant challenges his convictions on two grounds. First, he submits
    that the trial judge erred in dismissing his application under s. 11(b) of the
Charter
.
    Second, he contends that the trial judge misapprehended parts of his evidence. He
    also appeals his sentence and renews his constitutional challenges under s.
    12 of the
Charter
.

[8]

The following reasons explain why I would dismiss the appeal from
    conviction. I would not reduce the sentence imposed by the trial judge, which
    was fit in the circumstances. However, I would allow the sentence appeal in
    part by declaring the mandatory minimum sentence in s. 172.1(2)(a) to be of no
    force or effect because it mandates the imposition of grossly disproportionate
    sentences in reasonably foreseeable circumstances. I would dismiss as moot the constitutional
    challenge to the mandatory minimum sentence under s. 212(4) of the
Criminal
    Code
. Finally, I would set aside the victim surcharge.

B.

factual overview

[9]

In October 2014, Detective Thai Truong of the York Regional Police
    posted the following advertisement on Backpage.com:

^^**BACK only TONIGHT  Tight
    Brand New girl in richmond hill today only  waiting ^^** - 18

[10]

The ad included two photos of a female clad in underpants and a bra. Her
    head and face were not visible. It was a police officer in her 30s. The ad
    included a cell number and the following email address: kathyblunt16@gmail.com.
    Detective Truong testified that he included the number 16 purposely to suggest
    the prospective age of Kathy.

[11]

In the early afternoon of October 26, 2014, the appellant texted, Can
    you squirt for me when eaten. Kathy responded ewww and then im 16 that's
    gross. Over the next two days, the appellant and Kathy exchanged messages.
    The appellants messages were sexually explicit. Kathy presented as an
    inexperienced 16-year-old sex trade worker. She said that she was fresh and
    that u better not be a cop I cud get in big trouble cause of my age. When the
    appellant suggested they get together in his truck, Kathy again wrote that
    she was 16.

[12]

The appellant arranged to meet Kathy at a hotel in Markham. On the day
    they were to meet, the appellant wrote, Little nervous here with your age and
    driving from brampton. They negotiated a price of $200, with an extra $50 if
    anal intercourse occurred. On his way to the hotel, Kathy asked the appellant
    to bring condoms, bottled water, and bubble gum. The appellant arrived at the
    hotel room with these items and the cash described above.

[13]

At the time of trial, the appellant was 54 years old, with a family. He
    ran a successful trucking company and had worked in the business for over 30
    years. When he was not driving, the appellant did office work, which he found
    to be boring. To break the tedium, he texted escorts. He said that he often led
    with the line can you squirt for me when eaten. His phone records reveal that
    he sent this text to dozens of sex trade workers.

[14]

The appellant testified that he did not believe that Kathy was 16. He thought
    the person in the photos was in her twenties. The appellant testified that, in
    his experience, escorts lie about their age. He apparently gathered this information
    through observing and conversing with prostitutes in downtown Toronto. The
    appellant said he went along with this role-play scenario, never intending to
    purchase sexual services, and certainly not from someone who was 16.

[15]

The trial judge rejected the appellants evidence, finding it to be
    fraught with vagueness and inconsistencies. He gave 19 reasons for reaching
    this conclusion.

[16]

For example, when the appellant was asked how long he had been texting
    escorts, he gave multiple estimates, finally settling on I dont really know.
    The trial judge considered this to be deliberately vague and evasive.

[17]

In cross-examination, the Crown asked the appellant about his opening
    line  Can you squirt for me when eaten. The appellant apparently used this
    greeting because he usually received no response. He claimed not to be sure
    what it meant, saying that he picked it up from his wifes friends who are
    lesbians. In the end, the appellant said he had no idea what the phrase
    meant. The trial judge found this to be deliberately false.

[18]

With respect to some other aspects of the appellants testimony, the
    trial judge said that, [H]e was at pains to avoid giving any answer that he
    thought may implicate him. The result [led] to some answers that bordered on
    the absurd. Perhaps the height of absurdity was reached when the appellant was
    asked about why he stopped to pick up condoms if, as he said, he had no
    intention of having sex with an escort. The appellant answered: If a
    prostitute was there she could use them, I wouldnt use them. He added that it
    was in my nature, I guess to try and be a nice person. The trial judge found
    that these answers were not credible.

[19]

The trial judge found that because Kathy repeatedly represented herself
    to be 16, the presumption in s. 172.1(3) could apply. Under this subsection,
    evidence that the young person was represented to the accused as being under 18
     absent evidence to the contrary  is proof that the accused believed the
    person was under 18.

[20]

However, the trial judge held that the Crown did not need to rely on s. 172.1(3)
    because he found that the appellant believed he was communicating with a
    person under 18 for the purpose of engaging in sex with that person for money
    to the exclusion of a reasonable doubt without reference to the presumption.

C.

the appeal against conviction

[21]

The appellant challenges the trial judges ruling under s. 11(b) of the
Charter
.
    He also submits that the trial judge erred in the manner in which he dealt with
    certain portions of the appellants evidence. At the hearing of the appeal, the
    Crown was not invited to make submissions on these two grounds. They may be
    disposed of quite briefly.

(1)

Unreasonable Delay

[22]

It took just over 14 months to get to the first trial date in the
    Ontario Court of Justice. When the appellant applied for a stay of proceedings
    for a breach of s. 11(b), it was governed by the framework in
R. v.
    Morin
, [1992] 1 S.C.R. 771. Before the proceedings were completed, the
    Supreme Court released its decision in
R. v. Jordan
, 2016 SCC 27,
    [2016] 1 S.C.R. 631. Although the case did not finish within the estimated time
    period and had to be adjourned a number of times, the appellant did not attempt
    to revisit the issue.

[23]

On appeal, the appellants written arguments focus largely on the trial
    judges application of the principles in
Morin
. During the hearing of
    the appeal, and relying on
Jordan
, the appellant also submitted that
    s. 11(b) was infringed because his trial did not finish until more than seven
    months after the trial judge delivered his s. 11(b) ruling. I would dismiss
    each of these arguments.

[24]

In terms of the applicable framework, although
Morin
considerations are still important in transitional cases, this issue is governed
    by
Jordan
. For the sake of completeness, I set forth both tests before
    concluding that neither was violated.

[25]

Under
Morin
, courts were required to balance four factors: 1)
    the length of the delay; (2) defence waiver; (3) the reasons for the delay,
    including the inherent needs of the case, defence delay, Crown delay,
    institutional delay, and other reasons for delay; and (4) prejudice to the
    accuseds interests in liberty, security of the person, and a fair trial:
Jordan
,
    at para. 30, citing
Morin
. For provincial courts,
Morin
suggested the appropriate guideline for institutional delay was between 8 and
    10 months:
Morin
, at para. 50.

[26]

In
Jordan
the Supreme Court rejected the
Morin
approach
    and established a new framework for s. 11(b) applications. Under
Jordan
a court must first calculate the total delay from the charge to the actual or
    anticipated end of trial, and then subtract any delay attributable to the
    defence:
Jordan
, at para. 60. If the net delay falls below the
    applicable presumptive ceiling  in this case, 18 months  the onus is on the
    defence to show that the delay is unreasonable. To do so, the defence must
    establish that (1) it took meaningful steps that demonstrate a sustained effort
    to expedite the proceedings,
and
(2) the case took markedly longer
    than it reasonably should have:
Jordan
, at para. 48 [emphasis in
    original].

[27]

In this case, the delay litigated at trial was within the
Morin
guidelines, and was well below the presumptive ceiling in
Jordan
.

[28]

The appellant was charged on October 29, 2014. His application to stay
    proceedings under s. 11(b) was dismissed on January 5, 2016. The trial judge
    found that the institutional delay was 6 months and 23 days. This was within
    the 8 to 10-month
Morin
guideline for institutional delay in
    provincial courts.

[29]

The trial then commenced, and the trial judge delivered his judgment on
    August 12, 2016. In the meantime, the Supreme Court released its reasons in
Jordan
on July 8, 2016.

[30]

The appellant submits that the trial judge incorrectly characterized a
    three-month period (January 30, 2015 to April 15, 2015) as neutral or intake
    time, and that he further erred in classifying another month (December 3, 2015
    to January 5, 2016) as defence delay. I disagree.

[31]

The trial judge did not err in concluding that the intake period ought
    to run until April 16, 2015. It was not until that date that defence counsel
    realized that important items of disclosure were missing. The trial judge said
    that, It appears to have been something that was just missed by both [the]
    Crown and defence counsel. It was first mentioned specifically on April 16th.
    During this time, the parties had carried on with normal intake activities,
    including a judicial pre-trial conference. No delay was occasioned by the late
    disclosure. Consequently, there was no error in characterizing the time as
    neutral.

[32]

Similarly, the trial judge did not err in characterizing the second
    period as defence delay. The trial judge found that earlier trial dates were
    offered, but defence counsel was unavailable. The period identified by the
    trial judge as defence delay (December 3, 2015 to January 5, 2016) accounted
    for these circumstances. The trial judge recognized that defence counsel was
    not required to drop all her activities or parts of them necessarily to give
    this matter some sort of superordinate priority. This was clearly a reference
    to
R. v. Godin
, 2009 SCC 26, [2009] 2 S.C.R. 3, in which Cromwell J.
    wrote, at para. 23, that for s. 11(b) purposes, defence counsel are not
    required to hold themselves in a state of perpetual availability. In this
    case, the trial judge would have been justified in attributing more time to
    defence delay, based on the dates that were offered:
R. v. Albinowski
,
    2018 ONCA 1084
,
371 C.C.C. (3d) 190, at
    paras. 30-34. In my view, he made no error in fixing this period at one month.

[33]

At trial, the appellant asserted prejudice in terms of the economic loss
    he suffered because of the delay in getting to trial. As noted above, the
    appellant owns a small trucking firm. He is involved in all aspects of the
    business, including driving the trucks. The appellant claimed that, due to
    restrictive bail conditions, he was unable to properly attend to his business.
    Further, during the winter of 2014/2015, he was unable to travel to his cottage
    to remove snow from the roof, resulting in costly property damage. In total,
    the appellant said he suffered financial losses of approximately $187,000. Following
    cross-examination, the trial judge found that his loss appeared closer to
    $20,000. He further found that the appellant ha[d] not acted with a reasonable
    degree of diligence in taking steps to mitigate that loss (i.e., hiring
    replacement drivers).

[34]

The appellants counsel was able to negotiate with the Crown to relax some
    of his bail conditions, but she was not entirely successful. I agree with the
    trial judge that the appellant could have brought a contested bail review application
    under s. 520 of the
Code
to achieve greater flexibility to travel and
    attend to his business. His failure to do so undermines his prejudice claim.

[35]

The trial judge acknowledged the emotional toll that the proceedings had
    taken on the appellant, including the need for anti-depressant medication.
    However, while accepting that part of it was due to delay, the trial judge said
    that the very nature of the charges is also a factor. The trial judge dismissed
    the application. He concluded that while the appellant demonstrated some
    prejudice, it was very significantly tempered, and did not establish a breach
    of his rights under s. 11(b). I see no error in the trial judges analysis
    under the
Morin
framework.

[36]

The appellants argument concerning the delay between the trial judges
    s. 11(b) ruling (January 5, 2016) and his Reasons for Judgment (August 12,
    2016) must also fail. The case did not finish within the two days originally
    set for trial (January 5 and 6, 2016). A series of adjournments occurred for
    various reasons, including the appointment to the bench of the appellants
    trial counsel. Newly retained counsel did not renew the application under s.
    11(b). This, in my view, is fatal on appeal.

[37]

I would dismiss this ground of appeal. The litigated period of delay was
    tolerable under both the
Morin
and
Jordan
frameworks.

(2)

Misapprehension of the Appellants Evidence

[38]

The trial judge provided thorough written reasons for judgment. It is
    not disputed that he correctly articulated the applicable legal framework. He
    instructed himself on the principles in
R. v. W.(D.)
, [1991] 1 S.C.R.
    742.

[39]

As noted above, the trial judge rejected the appellants evidence. He
    variously described it as deliberately vague and evasive, deliberately
    false, vague, argumentative and incredible, bordering on the absurd,
    incredulous, and simply not credible. As the trial judge said before
    itemizing his specific concerns:

I found the accuseds evidence to
    be fraught with vagueness and inconsistencies. I propose to set out a summary
    of these concerns so that the accused has a solid understanding of why I
    reached this conclusion. This summary should not be considered as necessarily
    exhaustive. Some of the factors raised herein obviously have more impact than
    others. They are in no particular order of importance but they do tend to
    follow matters raised sequentially in the evidence.

[40]

The appellant takes issue with the manner in which the trial judge
    handled some of the items of evidence, characterizing them as misapprehensions.
    He also asserts that the trial judge failed to address arguments made in
    support of the appellants version of events. I would reject this ground of
    appeal.

[41]

Ultimately, the appellants submission boils down to a complaint that he
    was not believed. A high level of deference must be shown to a trial judges
    credibility findings:
R. v. Gagnon
, 2006 SCC 17, [2006] 1 S.C.R. 621,
    at para. 23;
R. v. Dinardo
, 2008 SCC 24, [2008] 1 S.C.R. 788, at para.
    26. Even if it could be shown that the trial judge misapprehended some aspects
    of the appellants evidence, it would not detract from the overwhelming host of
    reasons for rejecting his evidence and the trial judges well-supported finding
    that the appellant believed that Kathy was 16 years old.

[42]

I would dismiss this ground of appeal, and the appeal against
    conviction.

D.

the appeal against sentence

(1)

Introduction

[43]

The appellant challenged the constitutionality of the mandatory minimum
    sentence of 12 months imprisonment under s. 172.1(2)(a), as well as the
    6-month mandatory minimum sentence under s. 212(4). He argued that they both
    constituted cruel and unusual punishment, contrary to s. 12 of the
Charter
.

[44]

The trial judge rejected both challenges and imposed the respective
    minimum sentences, ordering that they be served concurrently. The trial judge
    gave his ruling before this court held in
Morrison
that s. 172.1(2)(a)
    violated s. 12 and was of no force and effect: see
R. v. Morrison
,
    2017 ONCA 582, 350 C.C.C. (3d) 161 (
Morrison (ONCA)
), revd 2019 SCC
15,
375 C.C.C. (3d) 153 (
Morrison
    (SCC)
).

[45]

As discussed below, an appeal to the Supreme Court was allowed in part. The
    Court ordered a new trial. A majority of the Court declined to pronounce on the
    constitutional validity of s. 172.1(2)(a), but offered helpful observations on
    how the issue might be approached in the future. Karakatsanis J. (with whom
    Abella J. concurred on this issue) would have declared the provision of no
    force or effect.

[46]

This sequence of events makes this appeal somewhat unique. At the time
    the appellant filed his notice of appeal in this court,
Morrison (ONCA)
had
    determined that s. 172.1(2)(a) violates s. 12 of the
Charter
. However,
    given the manner in which the Supreme Court ultimately disposed of the case,
Morrison
    (ONCA)
no longer has precedential value. Moreover, and as I explain in
    greater detail below, in this court Pardu J.A. relied on her characterization
    of the fault requirement in s. 172.1 as largely objective to find that the
    mandatory minimum sentence in s. 172.1(2)(a) infringed s. 12.
Morrison (SCC)
clarified s. 172.1 such that the
mens rea
is now understood to be
    subjective in nature. Thus, a critical plank in the reasoning of Pardu J.A. has
    been removed.

[47]

Notwithstanding the refined
mens rea
requirement for offences
    committed under s. 172.1, I am of the view that the mandatory minimum sentence
    in s. 172.1(2)(a) violates s. 12 of the
Charter
. In reaching this
    conclusion I rely heavily on the reasons of Karakatsanis J., and on some of the
    observations made by the majority. As I explain below, a sentence of 12 months
    imprisonment is not grossly disproportionate as applied to the appellant.
    However, the broad range of conduct covered by s. 172.1 permits its application
    in reasonably foreseeable circumstances where the imposition of the mandatory
    minimum sentence would be grossly disproportionate. Moreover, the discrepancy
    between the minimum sentences for offences under s. 172.1 that are prosecuted
    by indictment and those that are prosecuted summarily also illustrates that, in
    some circumstances, the imposition of the mandatory minimum sentence in the
    former situation is grossly disproportionate.

[48]

I reach a different conclusion in relation to the minimum sentence in s.
    212(4). As I explain below, the trial judge did not conduct a separate
    constitutional analysis of this provision. In these circumstances, I would
    decline to decide the issue on this record: see
R. v. Plange
, 2019
    ONCA 646, at para. 30. Further, given the manner in which I would ultimately
    decide the sentence appeal  upholding the sentence imposed by the trial judge
     this issue is effectively moot.

[49]

I begin my analysis by setting out the reasons of the trial judge on each
    sentencing issue. I then review the
Morrison
litigation, emphasizing
    the critical considerations that informed the analysis of Pardu J.A. on the one
    hand, and Karakatsanis J. on the other. I then apply this framework to the
    facts of this case.

(2)

The Sentencing Proceedings and the Trial Judges Reasons

[50]

At the sentencing hearing, counsel for the appellant acknowledged that a
    custodial sentence was warranted, and submitted that three to six months would suffice.
    Crown counsel submitted that a sentence of 15 to 18 months would be fit.

[51]

The trial judge identified as primary the sentencing objectives of
    denunciation, deterrence, and the need to separate sexual predators from
    society for societys well-being and the protection of the children. He found
    that, while the appellant had engaged in sexually predatory conduct, he was not
    in any way, shape or form what could be considered a seasoned, sexual
    predator, if I can use that phrase.

[52]

The trial judge further observed that the appellant was in his
    mid-fifties with no previous criminal record. He had been a law-abiding and
    hard-working citizen. He took into account the two-year period in which the
    charges had been outstanding and how difficult it must have been for the
    appellant to navigate the court process as a first offender. The trial judge
    also took into account that the appellant enjoyed a highly supportive family
    network.

[53]

The trial judge then turned to the offence itself. He noted that the
    appellant did not send any photographs or pornographic material to Kathy  an
    aggravating factor present in other cases.

[54]

In terms of mitigating offence features, the trial judge acknowledged
    that the appellant was communicating with a police officer, not a 16-year-old
    girl. However, he tempered the weight assigned to this mitigating factor
    because of the intrusiveness of the sexual acts negotiated by the appellant, including
    digital penetration, fellatio, vaginal intercourse, and anal intercourse.

[55]

The trial judge identified aggravating features, including the fact that
    the appellant went to the hotel room as planned. Given that he had $200 in cash
    in his front pocket, as well as the other items requested by Kathy, the
    appellant clearly went there expecting a 16-year-old girl and ready to commit
    the sexual acts with her that had been negotiated.

[56]

Turning to the appellants
Charter
challenge, the trial judge
    discussed the approach to s. 12 claims set forth in
R. v. Nur
, 2015
    SCC 15, [2015] 1 S.C.R. 773, at para. 46. Under
Nur
, a court must first
    determine what constitutes a proportionate sentence in view of the objectives
    and principles of sentencing in the
Criminal Code
. Second, the court
    must ask whether the mandatory minimum sentence requires the judge to impose a
    sentence that is grossly disproportionate to the fit and appropriate sentence. The
    second stage may also require consideration of whether the mandatory minimum
    sentence would be grossly disproportionate in reasonably foreseeable
    circumstances.

[57]

Defence counsel drew the trial judges attention to a press release from
    the York Regional Police which announced that 104 people were charged in the
    same sting operation as the appellant. Of these 104 men, 32 of them pleaded
    guilty and received sentences of imprisonment in the range of three to seven months.
    All of the men were first-time offenders with stable jobs and families. Significantly,
    like the appellant, all of these men attended at a designated meeting point,
    prepared to pay money for sex with children.

[58]

The trial judge considered the apparent disparity between the sentences
    received by these similarly situated offenders and the sentence sought by the
    Crown in the appellants case. He realized that access to the lower range required
    an election to proceed summarily under s. 172.1.
[2]
The Crown argued that, in those other cases, a plea of guilty was a key factor
    in the decision to proceed summarily. Also, the trial judge noted that there
    were detailed psychological assessments provided, some of which, if not all
    included phallometric testing, and that is absent in this case. The trial
    judge accepted that such testing may be beyond the financial means of certain
    accused people and expressed concern about the disparity. He said that to me,
    this whole situation with this media release is the most significant factor
    that the [appellant] has going for [him]  However, it is not the end of the
    case.

[59]

The trial judge reviewed authorities from this court and concluded that,
    when the Crown prosecutes cases under s. 172.1 by indictment, the sentencing
    range is 12 to 24 months: see
R. v. El-Jamel
, 2010 ONCA
575,
261 C.C.C. (3d) 293;
R. v. Woodward
,
    2011 ONCA 610, 107 O.R. (3d) 81. Based on this range, the trial judge concluded
    that even bearing in mind the media release and the issue of discretion on the
    [part of the] Crown, it would be illogical for me to conclude that the sentence
    violates  s. 12 of the
Charter
. Nevertheless, returning to the press
    release the trial judge said:

I can have some real sympathy for
    the accused, given the negotiated pleas in the other cases but, as I have said,
    those were guilty pleas. Crown proceeding summarily. Psychiatric or
    psychological assessments were filed. And, in this case I feel I am simply
    bound by the Ontario Court of Appeal decisions and I must find that the
    statutory minimum does not breach the Section 12 cruel and unusual punishment provision.

[60]

In discussing the high standard that must be met to succeed on a s. 12
    claim, the trial judge commented that the punishment must outrage standards of
    societal decency and amount to cruelty: see
R. v. Lloyd
, 2016 SCC
    13, [2016] 1 S.C.R. 130, at para. 24. He cautioned that we have to be careful
    as courts to avoid interpreting sentencing provisions that we may not like in a
    manner that, in the end tends to trivialize very substantial and rather harsh
    language contained in the
Charter
.

[61]

The trial judge then considered whether the mandatory minimum sentence
    in s. 172.1 was grossly disproportionate when compared with other jurisdictions
    in the Western world. He said, I do not think it would be. I [would] say in
    many jurisdictions it probably would be much more severe. Accordingly, the
Charter
challenge to s. 172.1(2)(a) was dismissed.

[62]

The trial judge did not conduct a separate constitutional analysis of s.
    212(4). He simply said: The statutory minimum is six months. I think most of
    the observations I have made so far apply with equal force to that. We are all
    talking about concurrent time so, in my view it is largely a moot point in any
    event.

(3)

Constitutional Validity of s. 172.1(2)(a)

(a)

The
Morrison
Litigation

The Facts

[63]

The facts in
Morrison
bear certain similarities to the facts in
    this case, as well differences which serve as useful points of contrast for
    sentencing purposes.

[64]

Morrison posted an advertisement on the website Craigslist. The ad was
    titled: Daddy looking for his little girl  m4w  45 (Brampton). A person
    calling herself Mia responded, claiming to be 14 years old. Over the course
    of more than two months, correspondence of a sexual nature transpired. Morrison
    invited Mia to touch herself and proposed a meeting to engage in sexual activity.
    Mia represented her age as 14 several times during this correspondence. In
    reality, Mia was an undercover police officer. Like the appellant in this
    case, Morrison testified that he thought he was involved in a role-play with an
    adult female, explaining that minors were not permitted to post ads on
    Craigslist. No meeting was ever arranged before Morrison was arrested. Morrison
    was charged under s. 172.1 of the
Criminal Code
, the designated offence
    being invitation to sexual touching, contrary to s. 152.

The Trial

[65]

At trial, Morrison challenged the constitutionality of ss. 172.1(3) and
    (4) of the
Criminal Code
. These sections provide:

Presumption re age

(3) Evidence that the person referred to in paragraph (1)(a),
    (b) or (c) was represented to the accused as being under the age of eighteen
    years, sixteen years or fourteen years, as the case may be, is, in the absence
    of evidence to the contrary, proof that the accused believed that the person
    was under that age.

No defence

(4) It is not a defence to a charge under paragraph (1)(a), (b)
    or (c) that the accused believed that the person referred to in that paragraph
    was at least eighteen years of age, sixteen years or fourteen years of age, as
    the case may be, unless the accused took reasonable steps to ascertain the age
    of the person.

[66]

The trial judge found that the reasonable steps requirement in s. 172.1(4)
    was constitutional, but held that s. 172.1(3) infringed the presumption of
    innocence under s. 11(d) of the
Charter
. Despite striking down s. 172.1(3),
    the trial judge was satisfied that the Crown had proved the offence without the
    benefit of the presumption because Morrison failed to take reasonable steps to
    ascertain the age of Mia. He found that the Crown had not proved subjective
    belief on the part of Morrison that Mia was underage and that his state of
    mind was closer to mere negligence. Nevertheless, because of Morrisons failure
    to take reasonable steps, he was found guilty: see
R. v. Morrison
,
    2014 ONCJ 673, at paras. 25-27.

[67]

The trial judge further found that the mandatory minimum sentence in s.
    172.1(2)(a) was grossly disproportionate, contrary to s. 12 of the
Charter
.
    Refusing to apply it, the trial judge sentenced Morrison to 75 days
    imprisonment, to be served intermittently.

Morrison (ONCA)

[68]

Morrison appealed his conviction to this court. He appealed the trial
    judges refusal to strike down s. 172.1(4), whereas the Crown appealed the
    trial judges decisions to strike down ss. 172.1(3) and s. 172.1(2)(a). Both
    appeals were dismissed.

[69]

Writing for the court, Pardu J.A. found that s. 172.1(3) of the
Criminal
    Code
violated s. 11(d) of the
Charter
. She found that [e]ven if
    the presumption of belief is triggered and there is no evidence to the
    contrary, the trier of fact could still be left with a reasonable doubt that
    the accused believes that the interlocutor is underage: at para. 59. The
    provision was not saved under s. 1: at paras. 63-77.

[70]

Turning to s. 172.1(4), the court concluded that, while the reasonable
    steps requirement did not infringe s. 7 of the
Charter
, it rendered
    the fault requirement in s. 172.1 partly objective in nature. Pardu J.A. examined
    the Supreme Courts early decisions on the constitutionality of fault
    requirements in
R. v. Vaillancourt
, [1987] 2 S.C.R. 636,
R. v.
    Martineau
, [1990] 2 S.C.R. 633, and
R. v. Logan
, [1990] 2 S.C.R.
    731. This line of cases emphasized the need for a correspondence between the
    fault required for a particular offence and the degree of stigma, punishment,
    and moral blameworthiness for that offence. On the one hand, the offences of
    murder (
Martineau
and
Vaillancourt
) and attempted murder (
Logan
)
    carry such a high level of stigma and moral blameworthiness that, for
    constitutional purposes, nothing less than subjective fault requirements will
    suffice. In contrast, the Court held that manslaughter is less morally blameworthy
    and stigmatizing, thereby permitting an objective standard of liability: see
R.
    v. Creighton
, [1993] 3 S.C.R. 3; see also
R. v. Finlay
, [1993] 3
    S.C.R. 103.

[71]

Applying this jurisprudence, Pardu J.A. acknowledged that a conviction
    for child luring carries a high degree of stigma and moral blameworthiness,
    at para. 92, but [t]he stigma of child luring  cannot be said to be as high
    as the stigma of murder: at para. 94. She found that, although the reasonable
    steps requirement adds an objective dimension to the fault standard for child
    luring, this was not fatal. Pardu J.A. said: The fault element of child luring
    established by subsection (4) is not purely subjective, even if it is not
    purely objective. However, I am not persuaded that the stigma of being
    convicted of child luring constitutionally mandates a purely subjective
    standard of fault, akin to the stigma of murder: at para. 101. Morrisons
    conviction appeal was dismissed on this basis.

[72]

Turning to the claim under s. 12 of the
Charter
, Pardu J.A. concluded
    that the mandatory minimum sentence faltered as applied to Morrisons
    situation, making it unnecessary to consider reasonably foreseeable
    applications of the law.

[73]

Key to Pardu J.A.s analysis was Morrisons degree of moral blameworthiness.
    The Crown argued that the trial judge erred in finding that it was diminished
    in the circumstances. Pardu J.A. disagreed, holding, at para. 121:

The Crown failed to prove that the
    accused believed he was communicating with an underage person. It did prove he
    failed to take reasonable steps to ascertain the age of the other person. This
    degree of fault, negligence, taking into account what was known to Morrison, is
    significantly less blameworthy than the conduct of someone who, for example,
    deliberately sets about to lure a child. It is axiomatic that a person who
    commits an offence by negligence is less morally blameworthy than someone who
    intentionally commits a criminal offence.

[74]

Pardu J.A. also rejected the Crowns submission (based on
R. v.
    Jarvis
(2006), 211 C.C.C. (3d) 20 (Ont. C.A.) and
Woodward
) that
    the 75-day sentence imposed on Morrison was unfit. At para. 122, Pardu J.A.
    acknowledged that in
Woodward
, this court recognized that the 12 to
    24-month sentencing range previously established in
Jarvis
needs to
    be revised and that much stiffer sentences, in the range of three to five
    years might be warranted to meet the relevant objectives of sentencing. In
Woodward
,
    this court affirmed a global sentence of six and one-half years. However, as
    Pardu J.A. pointed out, at para. 126, the facts in
Woodward
were far
    more serious and involved, among other things, a meeting in which the accused
    had sex with a 12-year-old girl: see also
R. v. D.M.
, 2012 ONCA 520,
    111 O.R. (3d) 721.

[75]

Pardu J.A. also referred to
R. v. Alicandro
, 2009 ONCA 133, 95
    O.R. (3d) 173, in which a 90-day intermittent sentence for child luring was
    upheld. Like
Morrison
,
Alicandro
involved a sting operation
    where the accused was communicating with an undercover officer: at para. 125.

[76]

After considering this line of cases, Pardu J.A. concluded, at para. 128:
    What emerges from this brief review of the case law on the range is that the
    parameters established in
Jarvis
are flexible and dependent on the
    particular facts of the case. The range of seriousness of offences committed
    under s. 172.1 is evidently wide. In this vein, Pardu J.A. was alluding to the
    Supreme Courts admonition in
Lloyd
, at para. 35, that mandatory
    minimum sentences which apply to offences that can be committed in various
    ways, under a broad array of circumstances and by a wide range of people are
    vulnerable to constitutional challenge.

[77]

The court concluded that the mandatory minimum sentence in s. 172.1(2)(a)
    infringed s. 12 of the
Charter
as applied to Morrisons circumstances.
    There was no need to consider reasonably foreseeable applications of the law: at
    para. 135. No s. 1 justification was offered by the Crown. The Crowns appeal
    from sentence was dismissed.

Morrison (SCC)

[78]

The Supreme Court unanimously upheld the lower courts finding that s.
    172.1(3) violated s. 11(d) of the
Charter
. A majority of the Court
    decided that the reasonable steps provision in s. 172.1(4) was constitutionally
    sound. Dissenting in part, Abella J. would have declared s. 172.1(4) invalid. A
    majority of the court declined to rule on the constitutionality of the
    mandatory minimum sentence in s. 172.1(2)(a). Abella and Karakatsanis JJ. would
    have struck down the provision for violating s. 12 of the
Charter
.

[79]

Before turning to the impact of
Morrison (SCC)
on the validity
    of s. 172.1(2)(a), it is necessary to consider the Courts reasoning as it
    relates to the fault requirement for the offence.

[80]

Writing for the Court on this issue, Moldaver J. held that s. 172.1(3)
    violated s. 11(d) because proof of the basic fact (i.e., a representation as to
    the age of the person) does not inexorably lead to proof of the presumed fact
    or essential element (i.e., actual belief in the age of the person). In other
    words, there was no inexorable connection between the two: at paras. 56-57, 62.
    The violation could not be justified under s. 1 of the
Charter
, as the
    provision faltered on the minimal impairment test and the proportionality requirement:
    at paras. 67-72.

[81]

Turning to the reasonable steps requirement in s. 172.1(4), Moldaver J. held
    that the provision did not infringe s. 7 of the
Charter
. Referring to
    the Courts previous decisions in
Vaillancourt
,
Martineau
,
Logan
,
    and
Creighton
, Moldaver J. said that, while child luring carries a
    high degree of stigma and potentially severe sentences, he was very doubtful
    that these features rise to a level that requires subjective
mens rea
:
    at para. 79. However, it was not necessary to decide the issue in view of how
    the Court interpreted the role of s. 172.1(4).

[82]

Moldaver J. held that s. 172.1(4) does not create a second pathway to
    conviction; instead, it merely limits access to a defence: at paras. 80, 82. As
    he explained, at para. 83:

Consequently, if the Crown proves
    beyond a reasonable doubt that the accused did not take reasonable steps, then
    the trier of fact is precluded from considering the defence that the accused
    believed the other person to be of
legal age
.
But that does
    not relieve the Crown of its ultimate burden of proving beyond a reasonable
    doubt that the accused believed the other person was
underage
.
    Thus, to illustrate, if the trier of fact can only conclude from the evidence
    that the accused was negligent or reckless with regard to the other persons
    age, the Crown would not have met its burden, and the accused would be entitled
    to an acquittal
. This is because negligence and recklessness are states of
    mind that do not entail any concrete belief about the other persons age.
In
    short, there is but one pathway to conviction: proof beyond a reasonable doubt
    that the accused believed the other person was underage. Nothing less will
    suffice
. [Italics in original; underlining added.]

[83]

The essential nature of s. 172.1 in requiring subjective
mens rea
was emphasized in other parts of the majority reasons, with the Court stressing
    that only subjective belief or wilful blindness will suffice, not recklessness:
    see paras. 92-93, 96-101. As Moldaver J. summarized, at para. 102: [T]o
    establish the second element outlined above in the context of a police sting
    where there is no underage person, the Crown must prove beyond a reasonable
    doubt that the accused (1) believed the other person was underage or (2) was
    wilfully blind as to whether the other person was underage.

[84]

Given this clarification on the operation of s. 172.1, the majority concluded
    that both the trial judge and this court had proceeded on an incorrect
    assumption about the requirement for subjective fault. A new trial was ordered.

[85]

The majority declined to adjudicate on the constitutional validity of s. 172.1(2)(a).
    Moldaver J. said, at para. 145, it would be unwise to rule on the matter
    given that the courts below proceeded on a misunderstanding of the fault
    requirement and the parties did not have the opportunity to make submissions
    with the benefit of the Courts clarification.

[86]

Nevertheless, Moldaver J. made some observations about the mandatory
    minimum sentence in s. 172.1(2)(a). He identified several features of the
    provision which suggest that the mandatory minimum is, at the very least,
    constitutionally suspect: at para. 146.

[87]

First, s. 172.1 potentially encompasses conduct ranging from a single
    text message sent by a 21-year-old young adult to a 15-year-old adolescent, to
    those involving numerous conversations taking place over weeks or months
    between a middle-aged mature adult and a 13-year-old child: at para. 146.
    Moreover, the section criminalizes communications sent to facilitate a wide
    array of secondary offences, varying in gravity and accompanied by mandatory
    minimum sentences that are much shorter than the one year of imprisonment
    required by s. 172.1(2)(a). Indeed, some secondary offences have no mandatory
    sentences at all: at para. 147. As Moldaver J. said, at para. 148, despite the
    wide reach of s. 172.1, Parliament has not included a safety valve that would
    permit judges to exempt outlier cases where a significantly lower sentence
    might be appropriate, making the mandatory minimum provision vulnerable to
    constitutional challenge.

[88]

Moldaver J. also identified the hybrid nature of the offence as a factor
    pointing toward invalidity: see paras. 149-52. He observed that, in determining
    whether a mandatory minimum sentence is grossly disproportionate, a court may
    not take into account the prosecutors discretion to proceed summarily to avoid
    the imposition of overly harsh sentences in appropriate cases: at para. 150;
    see
Nur
, at paras. 85-86. Consequently, the hybrid nature of s. 172.1 may
    give rise to reasonably foreseeable cases in which the longer mandatory minimum
    sentence would be disproportionate or too severe. As I discuss in the following
    section, the appellants case provides a good illustration of this problem.

[89]

However, Moldaver J. cautioned that the Court in
Nur
did not
    hold that every two-tier mandatory minimum sentence will necessarily lead to a
    conclusion that the sentence that must be imposed on indictment will be grossly
    disproportionate: at para. 154; see e.g.,
R. v. EJB
, 2018 ABCA 239, 72
    Alta. L.R. (6th) 29; but see
R. v. Hood
, 2018 NSCA 18, 45 C.R. (7th)
    269.

[90]

Moldaver J. also listed considerations that make it at least arguable
    that the mandatory minimum  is not grossly disproportionate in reasonably
    foreseeable applications: at para. 153. He stressed the serious nature of the
    offence, which targets children, one of the most vulnerable groups in society.
    And while the offence may be committed in a wide array of circumstances, the
    heightened
mens rea
requirement means that a conviction will not stand
    absent a high level of moral blameworthiness: at para. 153. Given the
    requirement of actual belief or wilful blindness, a one-year mandatory sentence
    may not be grossly disproportionate.

[91]

In concurring reasons, Karakatsanis J. echoed the majoritys admonition
    that child luring is a very serious offence. Section 172.1 protects potential
    child victims by allowing the criminal law to intervene before the harm caused
    by the commission of the secondary offences actually occurs: at para. 176.
    Pointing to the decisions of this court (discussed in para. 59, above), she
    agreed that [i]n most cases proceeding by indictment, the appropriate range
    will be from 12 to 24 months: at para. 177. However, ultimately Karakatsanis
    J. would have found s. 172.1(2)(a) invalid.

[92]

Because the Supreme Court ordered a new trial, Karakatsanis J. said that
    it was not prudent to consider whether the mandatory minimum was grossly
    disproportionate as applied to Morrison: at para. 174. Accordingly, her reasons
    focused exclusively on reasonably foreseeable applications of the provision.

[93]

Chief among Karakatsanis J.s concerns was the broad and divergent range
    of conduct constituting child luring under s. 172.1. Discussing the provisions
    expansive reach, Karakatsanis J. said: This alone makes [it] vulnerable to
    constitutional challenge because such laws almost inevitably capture cases
    where the mandatory minimum sentence will be grossly disproportionate: at
    para. 179; see also
Lloyd
, at para. 35;
Nur
, at para. 82. Karakatsanis
    J. offered several juxtapositions to illustrate this point: (1) offences may be
    committed by those intent on physically exploiting children, as well as those
    who have no intention of meeting their victims; (2) some cases involve extended
    dialogues in which the victim is groomed, whereas others involve a few
    exchanges over a short period of time; (3) some instances involve
    communications between people close in age, while other cases involve a mature
    adult and a young child; and (4) the offence may be committed through actual
    communication with an underage child, or with a police officer posing as a
    child: at para. 182; see
R. v. Rafiq
, 2015 ONCA 768, 342 O.A.C. 193,
    at para. 49. As Karakatsanis J. said, at para. 182: These factors may impact
    the level of harm caused by the offence, thereby informing what constitutes a
    fit and proportionate sentence (see s. 718 of the
Criminal Code
).

[94]

Similarly, the personal circumstances of accused persons may differ
    vastly, sometimes in ways which diminish the moral blameworthiness associated
    with the offence, or otherwise operate in mitigation: at para. 183.

[95]

This wide array of offence/offender features demonstrates that a
    proportionate sentence may be significantly less than mandated by s.
    172.1(2)(a): at para. 184. Karakatsanis J. referenced other cases, some from
    this court, in which intermittent, conditional, or suspended sentences were
    found to be appropriate: see e.g.,
Alicandro
;
R. v. Folino
(2005), 77 O.R. (3d) 641 (C.A.); and
Hood
.

[96]

The hybrid nature of s. 172.1(2)  highlighted in Moldaver J.s reasons
     also featured prominently in Karakatsanis J.s analysis. At the time Morrison
    was sentenced, if prosecuted summarily, the mandatory minimum sentence was 90
    days imprisonment. This was also true for the appellant in this case. Pointing
    to the disparity between cases prosecuted by indictment and by summary
    conviction, Karakatsanis J. said, at para. 155, that it clearly demonstrates
    that Parliament understood that, in certain circumstances, a sentence far below
    that required by the one-year mandatory minimum would be appropriate. She
    found that this strongly supports the assertion that s. 172.1(2)(a) is
    grossly disproportionate: at para. 186.

[97]

For these reasons, Karakatsanis J. would have found that s. 172.1(2)(a)
    violated s. 12 of the
Charter
. No s. 1 justification was advanced.
    However, the Crown argued that instead of striking down the section, the Court
    should read into the indictable offence the mandatory minimum associated with
    procedure by way of summary conviction. Karakatsanis J. would have declined to
    do so, concluding that this remedy would involve an unwarranted judicial
    incursion into the legislative role: at paras. 189-91; see also
R. v.
    Ferguson
, 2008 SCC 6, [2008] 1 S.C.R. 96, at paras. 49-57.

(b)

Application to This Case

(i)

Not grossly disproportionate in relation to the appellant

[98]

Adhering to the analytical framework in
Nur
, it must first be
    determined whether the 12-month mandatory minimum sentence mandated by s. 172.1(2)(a)
    is grossly disproportionate as applied to the appellant. Counsel for the
    appellant argued that, given the appellants personal situation and the nature
    of his offending, a 12-month sentence would be grossly disproportionate. She
    submitted that a proportionate sentence would be 90 days imprisonment. I
    disagree.

[99]

Although I respectfully disagree with the trial judges conclusion on
    the constitutional validity of s. 172.1(2)(a), I agree with his analysis of the
    relevant aggravating and mitigating circumstances of this case:
R. v.
    Lacasse
, 2015 SCC 64, [2015] 3 S.C.R. 1089. I accept the importance of the
    appellants status as a first-time offender. He is a hard-working and
    contributing member of society. He continues to enjoy the support of his family.
    It is also true that the appellant communicated with an adult, and no child was
    directly at risk: see
Rafiq
, at para. 49.

[100]

Nevertheless,
    the appellant engaged in highly culpable conduct. He attended at a hotel room,
    armed with condoms, expecting to purchase sex from a 16-year-old girl.

[101]

The appellant
    relies on the more lenient sentences received by those individuals caught in
    the same sting operation but whose cases proceeded summarily. These individuals
    received sentences in the three to seven-month range. However, as the Crown at
    trial submitted, all of these cases involved guilty pleas, with supporting
    psychological reports that addressed risk factors.

[102]

A guilty plea
    typically mitigates a sentence:
R. v. Wong
, 2018 SCC 25, [2018] 1
    S.C.R. 696, at para. 26; however, the circumstances of the guilty plea,
    including its timing, may influence the degree to which it can be recognized as
    a sincere indication of remorse: see
Lacasse
, at para. 81;
R. v.
    Faulds
(1994), 20 O.R. (3d) 13 (C.A.), at p. 17;
R. v. F.H.L.
,
    2018 ONCA 83, 360 C.C.C. (3d) 189, at paras. 22-24. This factor is missing in
    the appellants case. The lack of a guilty plea is not aggravating, but the
    appellant has deprived himself of any potentially mitigating value that
    accompanies this manner of dealing with his charges.

[103]

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

(ii)

Grossly disproportionate in reasonably foreseeable circumstances

[104]

However, I agree
    with Karakatsanis J. that the mandatory minimum sentence in 172.1(2)(a) must be
    declared unconstitutional based on its application in reasonably foreseeable
    circumstances. I acknowledge that, as Moldaver J. clarified in
Morrison
    (SCC)
, convictions under s. 172.1 will always be accompanied by a high
    level of moral blameworthiness. However, the wide range of conduct embraced by s.
    172.1(2)(a), including the varied nature of the designated secondary offences,
    gives rise to situations in which the imposition of the one-year mandatory
    minimum sentence would be grossly disproportionate. Although these outlier
    cases are not likely to occur or to be prosecuted with great frequency, they
    are nevertheless reasonably foreseeable and demonstrate that in some cases, the
    mandatory minimum sentence in s. 172.1(2)(a) is grossly disproportionate.

[105]

This point is
    illustrated in a different way in
R. v. Chang
, 2019 ONCA 924, a recent
    decision of this court. Sentenced after s. 172.1(2)(a) was struck down in
Morrison
    (ONCA)
, but before
Morrison (SCC)
, Chang received a sentence of
    eight months imprisonment. On appeal, this court reduced the sentence to six
    months less a day based on adverse immigration consequences faced by Chang
    under the
Immigration and Refugee Protection Act
, S.C. 2001, c. 27:
Chang
,
    at para. 15; see
R. v. Pham
, 2013 SCC 15, [2013] 1 S.C.R. 739. This
    court said, at para. 14, that this reduction, will not render the sentence
    demonstrably unfit, having regard to all the circumstances of the offence and
    this youthful first offender.
[3]

[106]

I also adopt the
    reasons of Karakatsanis J. in relation to the hybrid nature of the offence. As
    discussed, although the sentences imposed for those who pleaded guilty do not
    persuade me that the appellants sentence was too severe, 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.
    In combination with the expansive reach of s. 172.1, this renders s. 172.1(2)(a)
    grossly disproportionate in reasonably foreseeable circumstances, thereby
    infringing s. 12 of the
Charter
.

(iii)

Remedy

[107]

As in the
Morrison
litigation, the Crown has offered no s. 1 justification. Consequently, I would
    declare s. 172.1(2)(a) of no force or effect:
Constitution Act
, s.
    52(1).

[108]

In reaching this
    conclusion, I reject the Crowns submission that to prevent a legislative void,
    this court should order that all prosecutions under s. 172.1 are subject to the
    mandatory minimum applicable upon summary procedure: see s. 172.1(2)(b).
    Such an order would constitute an improper incursion into the legislative realm:
    see
Morrison (SCC)
, at paras. 189-91,
per
Karakatsanis J.

[109]

A similar
    argument was advanced in
R. v. B.J.T.
, 2019 ONCA 694, in which this
    court found that the one-year mandatory minimum sentence for sexual
    interference in s. 153(a) violated s. 12 of the
Charter
. In rejecting
    the submission that the mandatory minimum sentence of six months imprisonment
    in s. 153(b) (when proceeding summarily) should apply to all sexual interference
    prosecutions, Feldman J.A. wrote, at para. 78: [P]roceeding in [this] way
    would require a second
Nur
analysis and a finding regarding the
    mandatory minimum sentence for the summary offence when that issue is not
    directly raised by this appeal. I would adopt the same reasoning.
[4]

(c)

Should the remainder of the sentence be stayed?

[110]

The appellant
    has served roughly 53 days of his one-year sentence. He has received bail
    throughout these proceedings. The appellant submits that given his age, the passage
    of time since he was charged, and his perfect compliance with bail conditions,
    this court should stay the execution of the remainder of his sentence.

[111]

I am not
    persuaded that the appellants circumstances ought to prevent him from serving
    the rest of his sentence. The appellant has served only a small fraction of his
    sentence imposed for serious offences designed to prevent the exploitation of
    children. It is simply not in the interests of justice to remit any portion of
    the fit and appropriate sentence that was imposed by the trial judge: see
R.
    v. E.C.
, 2019 ONCA 688, at paras. 18-20;
R. v. Davatgar-Jafarpour
,
    2019 ONCA 353
,
146 O.R. (3d) 206,
at para.
50.

(d)

Conclusion

[112]

Consequently, I
    would strike down s. 172.1(2)(a) of the
Criminal Code
. With the consent
    of the Crown, I would set aside the victim surcharge:
R. v. Boudreault
,
    2018 SCC 58, 369 C.C.C. (3d) 358. However, I would not alter any other part of
    the sentence imposed by the trial judge.

E.

disposition

[113]

I would dismiss
    the appeal from conviction. I would allow the appeal from sentence in part.

Gary Trotter J.A.

Benotto J.A.: (for the majority on the challenge to mandatory
    minimum sentence under s. 172.1(2)(a))

[114]

I agree with my
    colleagues disposition of the appeal in all ways but one. I would not strike
    down s. 172.1(2)(a) of the
Criminal Code
, R.S.C. 1985, c. C-46
.

[115]

My colleague
    concludes that the mandatory minimum sentence (although not grossly
    disproportionate for the appellant) is grossly disproportionate based on its
    application in reasonably foreseeable circumstances. He reasons that the wide
    range of conduct embraced by s. 172.1(2)(a) gives rise to numerous examples
    where the imposition of the minimum sentence would be grossly disproportionate.

[116]

This is where we
    part company.

[117]

There are
    several reasons for my conclusion: (i) by clarifying the
mens rea
for
    the offence,
R. v. Morrison
, 2019 SCC 15

has narrowed the
    range of conduct embraced by the section; (ii) the one-year minimum does not
    meet the standard of gross disproportionality, particularly in light of the
    purpose of the legislation; (iii) the reasonable hypotheticals have not been
    fully argued; and, (iv) the hybrid nature of the offence does not automatically
    render the mandatory minimum on indictment grossly disproportionate.

(1)

Morrison
has narrowed the range

[118]

Morrison

has clarified the
mens rea
for
    the child luring offence under s. 172.1. Consequently, the range of
    potential conduct has been significantly narrowed. The Crown must prove beyond
    a reasonable doubt that the accused intentionally communicated with a person
    who is or is believed to be underage. The accused must also have the specific
    intent to facilitate one of the listed offences. The wide net of the offence
    has been greatly narrowed to catch only these offenders:
Morrison
, at
    para. 153.

(2)

Grossly disproportionate is a high bar

[119]

A mandatory
    minimum sentence violates s. 12 of the
Charter
if it is grossly
    disproportionate:
Morrison
, at para. 164.

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

[120]

In determining
    whether a provision contravenes s. 12 of the
Charter
, the purpose of
    the legislation must be considered. The social reality is that access to the
    Internet among Canadian children is now almost universal and predators
    lurking in cyberspace, cloaked with anonymity are able to meet, groom, and
    sexually exploit vulnerable children through telecommunication:
Morrison
,
    at para. 2. Children are defenceless to the sexual exploitation of adult
    predators, who are only one click away:
R. v. Woodward
, 2011 ONCA 610,
    at para. 72. The harm caused by this offence is often life-altering for innocent
    children:
Morrison
, at paras. 3, 153;
Woodward
, at para. 76. These
    considerations factor into the determination of a s. 12
Charter
breach.

[121]

Parliament
    enacted
Criminal Code
provisions to ensure that predators who lure
    children through telecommunication receive a punishment that reflects the
    gravity and seriousness of the offence:
Morrison
, at paras. 2-3.
    Luring attracts a high degree of moral blameworthiness, especially since its
    victims are one of the most vulnerable groups within Canadian society  our
    children:
Morrison
, at para. 153. I do not agree that a one-year
    minimum sentence would outrage the moral standards of Canadians.

[122]

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

(3)

Reasonable hypotheticals

[123]

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

[124]

My colleague, referring to this courts decision in
R. v. Plange
,
    declines to make a determination on the constitutionality of the mandatory
    minimum under s. 212(4) because the trial judge did not conduct a separate
    constitutional analysis of the issue: 2019 ONCA 646. I adopt his reasons
    concerning s. 212(4) in this regard. In my view, those reasons also pertain to
    the constitutionality of s. 172.1(2)(a).

[125]

In
Plange
,

the trial judge examined three
    reasonable hypotheticals, all of which this court rejected. As a result, the
    majority in
Plange
determined, among other matters, that the parties
    should have an opportunity to make submissions with respect to other
    hypotheticals. While it was open to this court to consider reasonable
    hypotheticals, the majority declined to do so without the benefit of full
    submissions and a proper vetting of the facts underlying the hypothetical
    proposed in oral argument:
Plange
, at para. 35. The majority explained
    it could not determine the constitutionality of the impugned provision because
    the court below had not considered the reasonable hypothetical constructed in
    oral argument, nor had the parties fully argued its reasonableness. In
    concluding thus, the majority remarked, at para. 36:

The issue here is not whether the
    court can consider reasonable hypotheticals; clearly it can. The issue is
    whether, on the facts of this case, this court should construct a hypothetical
    not considered by the court below, and not fully argued, in order to declare a
    legislative provision unconstitutional.

[126]

I would apply
    the same reasoning to s. 172.1(2)(a). Although here, the sentencing judge
    considered the constitutionality of the mandatory minimum, he did not consider
    reasonable hypotheticals or reasonably foreseeable scenarios. I recognize that
    this omission does not prevent this court from determining the validity of the
    impugned section. However, in my view, the wiser course is to allow the parties
    to fully argue all relevant facts in the court below to ensure it assesses the
    constitutionality of the mandatory minimum with the benefit of a complete
    record.

(4)

The hybrid nature of the offence

[127]

My colleague
    adopts the concurring reasons of Karakatsanis J. in
Morrison
and
    strikes down the mandatory minimum sentence on the basis of its application in
    reasonably foreseeable circumstances and the hybrid nature of the offence. I
    note that in
R. v. Nur
the court considered the constitutionality of
    the mandatory minimum sentence for a hybrid offence, but did not go so far as
    to say that every mandatory minimum on indictment would be grossly
    disproportionate and contrary to s. 12 of the
Charter
: 2015 SCC 15, [2015]
    1 S.C.R. 773;
Morrison
, at para. 154.

[128]

Likewise, I
    would not go so far as to say that the mandatory minimum on indictment is
    grossly disproportionate because of the hybrid nature of the offence.  Recall
    its purpose: the gravity of the offence, the harm child luring causes, and the
    need to send a clear message to offenders that if they prey upon innocent
    children  [they] will pay a heavy price (citations omitted):
Woodward
,
    at para. 73.

[129]

For these
    reasons, I would dismiss the appeal in its entirety.

Released: December 11, 2019

MLB

M.L. Benotto J.A.

I agree B.W. Miller
    J.A.

[1]
In December 2014, ss. 13 and 20 of the
Protection of Communities and
    Exploited Persons Act
, S.C. 2014, c. 25, repealed s. 212(4) and replaced it
    with a similarly worded offence in s. 286.1(2) of the
Criminal Code
.

[2]

At the time, s. 172.1(2) provided for a one-year mandatory
    sentence upon prosecution by indictment, and a mandatory minimum sentence of 90
    days when prosecuted summarily. In July of 2015, the mandatory minimum sentence
    applicable to summary conviction proceedings was increased to six months. As
    discussed below, the timeline in this case mirrors that in

R. v. Morrison
, 2017 ONCA 582, 350 C.C.C. (3d) 161.
Section 172.1(2)(b) imposed a 90-day minimum when Morrison was
    sentenced, but a six-month minimum by the time this court decided his appeal.

[3]

I note that the constitutionality of s. 172.1(2)(a) was not an
    issue before this court in
Chang
.

[4]

I note that, in
R. v. King
, 2019 ONCJ 366, Block J.
    struck down the six-month mandatory minimum sentence in s. 172.1(2)(b).


COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Diaz, 2019 ONCA 993

DATE: 20191216

DOCKET: C65341

MacPherson, Sharpe and Zarnett
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Neiman Jordan Diaz

Appellant

Neiman Jordan Diaz, acting in person

Matthew Gourlay, as duty counsel

Jessica Smith Joy, for the respondent

Heard: December 11, 2019

On appeal from the sentence imposed on April
    6, 2018 by Justice Kimberley Crosbie of the Ontario Court of Justice.

APPEAL BOOK ENDORSEMENT

[1]

The appellant abandons his conviction appeal.

[2]

On the sentence appeal, accepting, as we do, the
    sentencing judges identification of the appropriate range for sentence as
    being four to six years, we think that the imposition of a sentence at the
    absolute top of this range  namely, six years - is too harsh. There are
    several strong mitigating factors in the appellants favour, including a
    terrible sexual assault on him when he was a teenager and the eloquent
    description of his hardships by his parents. Importantly, although the
    appellant has a criminal record, his longest previous sentence was six months.
    In light of these factors, we are of the view that the actual sentence imposed
    within the range identified by the trial judge should have been, at most, about
    halfway in the range that she correctly identified.

[3]

The conviction appeal is dismissed as abandoned.
    The sentence appeal is allowed and the sentence is reduced to five years.

[4]

The $400 victim surcharge is set aside.