2018 QCCA 824, 2018 QCCA 824

Unofficial English Translation R. c. Rayo 2018 QCCA 824 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006497-174 (450-01-092188-155) DATE: May 18, 2018 CORAM: THE HONOURABLE NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. CLAUDINE ROY, J.A. HER MAJESTY THE QUEEN APPLICANT / APPELLANT ─ Crown v.

CENEN RAYO RESPONDENT ─ Accused JUDGMENT This judgment is subject to an order issued pursuant to s. 486.4(1) of the Criminal Code prohibiting the publication, broadcast or transmission of any information that could identify the victim. [ 1 ] The Crown seeks leave to appeal from a judgment of the Court of Québec, District of St-François (Judge Érick Vanchestein), rendered on July 20, 2017 in case number 450-01-092188-155 which, among other things, sentenced Cenen Rayo to one year of imprisonment resulting from concurrent sentences being divided as follows: count 2 (luring a child) one year; count 4 (making sexually explicit material available to a child) 90 days; count 5 (invitation to sexual touching) one year; count 6 (child pornography) one year; count 7 (possession of child pornography) six months.

The judge also ordered a three-year period of probation with conditions. [ 2 ] For the reasons of Kasirer J.A., with which St-Pierre and Roy JJ.A. concur, THE COURT : [ 3 ] GRANTS the application for leave to appeal; [ 4 ] GRANTS the appeal; [ 5 ] REVERSES the Court of Québec judgment for the sole purpose of striking the paragraph of the judgment which imposes the prison sentences in case number 450-01-092188-155, rendering the judgment the Court of Québec should have rendered; [ 6 ] SENTENCES the respondent to a global two-year prison sentence in case number 450-01-092188-155, to be divided as follows: count 2 (luring a child) one year; to be served consecutively to the following concurrent sentences for counts 5, 6 and 7: a one- year sentence for count 5 (invitation to sexual touching), a one-year sentence for count 6 (production of child pornography) and a six- month sentence for count 7 (possession of child pornography); as well as a 90-day sentence for count 4 (making sexually explicit material available to a child), to be served concurrently with the sentence for luring a child; [ 7 ] CONFIRMS the other orders issued by the Court of Québec judgment.

NICHOLAS KASIRER, J.A. MARIE ST-PIERRE, J.A. CLAUDINE ROY, J.A.

Mtre Frédérique Le Colletter Mtre Joanie Houde-St-Pierre Directeur des poursuites criminelles et pénales For the applicant / appellant Mtre Marie-Hélène Giroux Monterosso Giroux Lamoureux Avocats For the respondent Date of the Hearing: March 16, 2018 REASONS OF KASIRER J.A. [ 8 ] A sexual predator committed multiple offences against a child he lured on “Facebook” preparing further crimes which, in the end, he would not commit.

When determining the sentence, does luring a child require a consecutive sentence or should the sentence be served concurrently with those imposed for the other offences committed? [ 9 ] Luring is said to be an “inchoate“ offence, committed by those who communicate electronically with a child for the purpose of facilitating the commission of the sexual offences listed at s. 172.1 Cr.C .

Enacted to protect children, especially in the virtual environment online, this offence seeks to criminalize communications that precede and pave the way for the perpetration of sexual offences set out in the Criminal Code . [1] In principle, luring a child must be punished even if the related offences are never committed. [ 10 ] This gives rise to difficulties, as illustrated by this case, in determining a just and appropriate sentence for the preliminary offence of luring when some of the offences so “prepared” are actually committed, while others are not. *** I Background [ 11 ] Following a five-day trial, Cenen Rayo was found guilty of six charges including luring, invitation to sexual touching, production and possession of juvenile pornography, as well as making sexually explicit material available to a child. [2] At the time of the events, the respondent was 33 years old, the victim 12. [ 12 ] The judge ordered a global one-year prison sentence – the sentences imposed for each count to be served concurrently – paired with a three-year period of probation with conditions, including 120 hours of community service and $500 in restitution to be paid to the victim’s mother for financial losses caused by the offences. [3] He specified, notably, that the minimum one-year sentence applied to the luring offence. [ 13 ] The Crown filed an application for leave to appeal from the sentence, which application was ultimately referred to the Court. [4] The applicant alleges errors made both in determining whether the sentence for luring should be served concurrently to the others and in setting the quantum of the sentence for this count in light of the global one-year sentence ordered by the judge. *** [ 14 ] The 241-paragraph judgment on the verdict sets out the facts in detail.

The judge reviewed the salient elements of the case in his extensive sentencing judgment. The essentials facts are uncontested, although the parties disagree on the characterization of certain facts and their importance to the sentence. [ 15 ] In early December 2014, the respondent Rayo sent an invitation to the complainant, from his computer, asking her to be his “friend” on the social network Facebook.

Although the respondent was not close to the complainant’s family, he knew them and in particular the mother because they were all members of the small Colombian community in City A, and saw each other occasionally in various settings including at a local church. [ 16 ] The judge held that the complainant accepted the invitation because she had known the respondent since she was roughly five years old.

According to the evidence retained by the trial judge, she still played with dolls at the time that the luring occurred. [ 17 ] Beginning in early December 2014, and continuing for a period of roughly six weeks, the respondent communicated with the complainant on the computer nearly every night. Their communications lasted between one and two hours, sometimes between 9:00 p.m. and midnight. The respondent knew that the complainant’s mother worked at night and that there was no father present in the home. A babysitter was present at most times, but the complainant was occasionally alone at home.

He knew where she lived. The respondent lied to the complainant, saying he was 25 years old. She asserts that she always told him she was 12. He would deny this at trial, claiming he believed she was 18 years old. [ 18 ] In the beginning, their conversations touched on a variety of topics. The respondent complimented the complainant on her appearance and was sweet with her, [TRANSLATION] “as if she was his girlfriend”, the judge wrote. The discussion quickly turned to

sexuality. The respondent described how to masturbate to the complainant – the judge held that the child did not know what masturbation was at the time – and encouraged her to do it. He asked the respondent to send him intimate photos of herself, which she did, sending pictures in which she posed wearing underwear, but not showing her face. He tried, unsuccessfully, to convince her to remove her bra.

Later, the respondent would send her two photos of a penis, which he said was his. [ 19 ] While sending messages, the respondent said that he would like to meet the complainant to show her how to make love because, he said, he could be trusted.

In mid-January 2015, during their final exchange, he wrote that he wanted to [TRANSLATION] “give her some nice tongue” and asked her “when are we finally going to do it [?]”. [ 20 ] The judge wrote: [TRANSLATION] “one more week and through charm, persuasion and sweet talk, he would have convinced her.” [ 21 ] On January 18, 2015, while looking at a smartphone in the house, the complainant’s mother discovered this sexually-charged communication between the respondent and her daughter.

The exchanges between the respondent and the complainant ended then. [ 22 ] The next day, the mother met with the respondent to discuss the exchanges and, unbeknownst to him, she recorded their conversation. He admitted some of the facts, including, among other things, that he knew he was conversing with a young adolescent and that he had explained to her how to masturbate. [ 23 ] After having consulted her daughter’s pediatrician, the mother filed a complaint with the police.

Her daughter met with a police officer to make a videotaped statement. [ 24 ] The respondent was tried in November 2016. [ 25 ] Testifying in defence against the charges of luring, the respondent admitted that he had had discussions of a sexual nature with the complainant, but asserted that he sincerely believed she was 18 years old. In addition, he argued, the exchanges had lasted only five days. He testified that he had no connection to the complainant or her mother. He also laid some blame on the complainant, arguing that the photos on her Facebook page were [TRANSLATION] “provocative for men”.

He denied having told the complainant how to masturbate. He stated that the discussions ended when they did because he learned from a third party that he was talking to a child. [ 26 ] The judge rejected the respondent’s testimony, characterizing it as neither credible nor reliable.

He concluded that the respondent had taken no reasonable steps to ascertain the age of the person with whom he was communicating and that he had been wilfully blind in this respect. [ 27 ] The judge explained that the Crown had proven, beyond a reasonable doubt, all the essential elements of the offence of luring a child under the age of 16, including the complainant’s age. He emphasized that the respondent knew the young girl, that he knew she lived with her mother and that she was sometimes home alone after 10 p.m.

With respect to the element of intent to facilitate the perpetration of a sexual offence contemplated by s. 172.1 Cr.C . , the judge specifically noted that, [TRANSLATION] “this clearly emerges from the discussions and admissions the accused himself made to the complainant’s mother: that he wanted to meet the complainant, that he wanted to French kiss her and introduce her to sexuality.” [ 28 ] The judge then set out the reasons for which the evidence, taken as a whole, established the respondent’s guilt respecting the offences connected to the luring.

In his view, sending the complainant a photo of a penis fit the definition of providing sexually explicit material to a child. He held that the evidence revealed that the respondent had invited the complainant to touch herself when he explained to her how to masturbate.

Moreover, he decided that the respondent’s conduct related to obtaining and keeping photos of the victim in her underwear met the criteria for producing and possessing child pornography. [ 29 ] The respondent was found guilty of the five charges brought against him, namely luring, providing sexually explicit material to a child, and invitation to sexual touching, as well as counts of possession and production of child pornography. Applying the Kienapple [5] principle, the judge ordered a conditional stay of proceedings for one count of luring and one count of providing sexually explicit material to a child.

II The judgment under appeal [ 30 ] Given the time at which the offences were committed, the respondent faced the following potential prison sentences: Count Cr.C . provision Description Min. Sentence Max. Sentence 2 172.1(1)(b) & (2) (

a) Luring a child 1 year 10 years 4 171.1(1)(b) & (2) (

a) Making sexually explicit material available to a child 90 days 2 years 5 152(

a) Invitation to sexual touching 1 year 10 years 6 163.1(2)(

a) Juvenile pornography – production 1 year 10 years 7 163.1(4)(

a) Juvenile pornography – possession 6 months 5 years [ 31 ] The respondent was the sole witness at the sentencing hearing. Statements from the victim and her mother were filed pursuant to s. 722(4) Cr.C . [6] [ 32 ] The divergent positions the parties submitted to the judge bear mention.

[ 33 ] The Crown suggested imposing the minimum sentence for each count, for a total two-year global sentence, to be accompanied by a three-year probation order.

The Crown based its calculations on the premise that some of the sentences imposed for the various offences would be consecutive and others concurrent: the prison sentences for luring (one year) and for making sexually explicit material available to a child (90 days) should be served concurrently, but consecutive to the sentences for production (one year) and possession (6 months) of juvenile pornography which should be served concurrently with the sentence for invitation to sexual touching (one year).

On this view, a two-year sentence would respect the principles of proportionality and totality. [7] [ 34 ] More specifically, considering that the sentence for luring should be served consecutively to the sentences imposed for some of the other offences, the Crown agreed that the sentence otherwise applicable to luring should be reduced, in order to respect the principle of totality. The following is an excerpt from the Crown’s explanation of the position it submitted to the judge: [TRANSLATION] It is now necessary to think in terms of the global sentence.

I am not going to propose a three-year prison sentence because, to me, that would be entirely unreasonable in the circumstances and would be contrary to the sentencing range for the type of crime committed by Mr. Rayo. I could plead that luring merits more than the minimum sentence because, to me, the aggravating factors in the file would justify that.

Once again, mindful of the global sentence so that the final sentence that I propose will be reasonable, I am going to propose that the minimum sentence should apply. […] As such, for sexual offences, to me, a legitimate sentence would be two (2) years, so the minimum sentence for luring – one (1) year – and the minimum sentence for production of juvenile pornography, invitation to sexual touching one (1) year, to be served consecutively for a total of two (2) years. [ 35 ] Before the judge, the Crown therefore suggested that luring, taken in isolation, merited a harsher sentence than the mandatory minimum sentence.

Counsel for the Crown did not specify what that sentence should be. It appears she did not think it necessary, or even fair, to impose a more severe sentence for luring insofar as the judge was prepared to grant her request that the minimum sentence for this offence be served consecutively to the sentences imposed for the other offences. [ 36 ] Counsel for the defence sought a more lenient global sentence noting, among other things, that there had been no physical contact between the respondent and the complainant, and that the facts involved a single victim.

Acknowledging that a 12-month sentence for luring was appropriate, she asked for that sentence to be served concurrently with the other sentences to be imposed. The defence emphasized, notably, that the respondent had no prior criminal history, that he had held the same job for some time, that he was in a stable relationship and that it was appropriate to encourage his rehabilitation within the community.

Counsel proposed a global one- year prison sentence and suggested that the judge add 240 hours of community service to the period of probation to be imposed rather than imposing consecutive sentences. [ 37 ] The judge began his judgment on sentence by setting out the primary facts of the case. He described the respondent: 35 years old at the time of the sentencing hearing, he had worked with the same employer for 13 years, had been married for 10 years and was the father of a 10-month old child.

With no criminal record, the respondent was involved in City A’s Colombian community which had facilitated his 2004 arrival in Canada. He noted that the respondent said he was aware of the consequences his actions had for the victim and her mother, expressed regret and had taken steps, including refraining from using social media, to ensure that the same conduct would not reoccur. He had also undergone a short period of therapy with his partner to address their relationship issues.

In summarizing the evidence, the judge wrote that the respondent said he had [TRANSLATION] “realized that his actions could cause harm around him and attributed the problem primarily to the fact that the internet had facilitated committing the offence”. From the respondent’s statement, the judge held that “he is not someone who has a tendency to seek out minors” and that he “takes responsibility for his conduct” (para. [20] and [21]). [ 38 ] The judge emphasized the consequences the victim and the mother described having suffered as a result of the respondent’s conduct.

The prosecution of the matter had led to a number of negative repercussions for the complainant. Her relationship with her mother had deteriorated to the point that she ran away for a half a day. The child also had to endure the reprobate of some community members who had decided she was to blame.

In her statement to the sentencing court, the complainant expressed feelings of guilt, sadness and a desire for revenge, said she felt insecure around men and that she had also inflicted self-mutilation and had suicidal thoughts. [ 39 ] The judge explained that the mother had said in her written statement that the incident had unfortunate consequences for the relationship she and her daughter had with their community, including threats being left on their car. As a result of the reaction of the Colombian community in their city, they had to move.

Before the events, her daughter had been very naïve and played like a child, but she was changed. She cried for no reason and was distant, no longer trusting anyone – not even her mother – leaving the mother with a feeling of powerlessness and frustration as she could not help her daughter to regain her self-confidence. [ 40 ] Turning to his own analysis, the judge considered the objective and subjective gravity of the offences.

He noted that the sentence should emphasize the objectives of denunciation and deterrence because the offences victim was a child under 18 years of age; he said the sentence should also ensure the harm would be corrected and instill a sense of responsibility for that harm in the respondent. [ 41 ] The judge declared that he was bound to impose a minimum sentence of one year for most of the counts. He noted his duty, pursuant to s. 718.2(

c) Cr.C. , to avoid imposing an unduly long sentence which could arise from consecutive sentences. [TRANSLATION] “This is why”, he wrote, “in this case, the minimum one-year sentence already adequately fulfills the objectives of denunciation and deterrence” (para. [50]). [ 42 ] The judge wrote that the respondent [TRANSLATION] “learned quite a lesson from all of this”, even if “he may not have engaged in as much reflection as could be hoped for.” What mattered most was that the community would be protected and he added that “in this particular case, the Court is convinced that the legal process had the desired effect” (para. [50] to [52]). [ 43 ] The judge then turned to the question of whether the sentences should be consecutive or concurrent. [ 44 ] After citing Desjardins [8] for the framework applicable to determining a just sentence when multiple offences are at play, the

judge said that he took the principles of totality and proportionality into account before concluding that, here, the sentences should be served concurrently and not consecutively.

He was also of the view that the respondent’s wrongful conduct was linked to his communication with the child, such that all the offences formed part of a single criminal transaction. [ 45 ] Consequently, the judge concluded, the appropriate sentence was a global one-year prison sentence, the sentences for all offences being served concurrently, accompanied by a three-year probation period subject to both mandatory and individual conditions including, among other things, 120 hours of community service to be completed within 12 months and restitution of $500 payable within 12 months to the complainant’s mother for her moving costs.

In his conclusions, the judge specified the sentence associated with each offence: count 2 (luring) – one year; count 4 (making sexually explicit material available to a child) – 90 days; count 5 (invitation to sexual touching) – one year; count 6 (production of juvenile pornography) – one year; count 7 (possession of juvenile pornography) – 6 months.

III Issues raised by the appellant [ 46 ] In support of its application for leave to appeal from the sentencing judgment, and the appeal itself if leave is granted, the Crown raises three issues, in the following order: did the sentencing judge (1) commit an overriding error of principle by misapplying the rules for determining whether the sentence should be concurrent or consecutive? (2) commit an overriding error of principle by deciding that the fact that the accused knew the child and used his own profile mitigated the seriousness of the offence? and (3) commit an overriding error in not giving predominant weight to denunciation and deterrence, by unduly insisting on the offender’s potential rehabilitation and by failing to consider the seriousness of the consequences suffered by the child? [ 47 ] At the hearing, the applicant clarified its approach.

Its arguments relate primarily to the sentence for luring in the specific context of a global sentence imposed for multiple offences. [9] In response to questions posed by the Court, counsel for the applicant stated that the global sentence sought in first instance – two years of imprisonment followed by a period of probation – would be the appropriate sentence.

The applicant stated that, if necessary, returning the respondent to jail would be justified because, according to counsel, he was on parole at the time of the appeal hearing. [ 48 ] Against this background, the stringent standard of review applicable in sentencing matters bears highlighting. [ 49 ] In R. v. Lacasse , [10] a majority of the Supreme Court of Canada emphasized that appellate courts may not intervene in sentencing matters “lightly” due to the “broad discretion” trial judges enjoy in imposing the sentence they deem appropriate, within the limits established by law.

Wagner J., as he then was, wrote that even an error in principle made by a judge exercising this subjective and discretionary power will “ justify appellate intervention only where it appears from the trial judge’s decision that such an error had an impact on the sentence.” [11] [ 50 ] The decision to impose a consecutive or a concurrent sentence is also a discretionary matter that rests with the sentencing judge. [12] IV Analysis [ 51 ] I note that the applicant criticizes the judge for making a fundamental error in his method of determining whether sentences for multiple offences should be concurrent or consecutive.

Before turning to the issues on appeal in greater detail, I find it useful to revisit the applicable framework for that task proposed by the case law, both in Quebec [13] and elsewhere in Canada. [14] [ 52 ] In Guerrero Silva , [15] my colleague Vauclair J.A. set out the preferred framework to be used by sentencing judges dealing with multiple offences. In theory, it is preferable to first determine the sentence applicable to each offence in isolation, without considering the potential global sentence. Next, the sentencing judge must decide whether the sentences should be served concurrently or consecutively.

Only in the latter case should the judge inquire as to whether the overall sentence is excessive – either in duration or severity. [16] In all cases, the judge must decide whether the overall sentence is proportional to the gravity of the offences committed and the offender’s degree of responsibility. [17] It is in the final two stages of the analysis that the judge may reduce the quantum of the sentence, if he or she considers the sentence to be excessive or disproportionate to the offender’s responsibility. [ 53 ] In Desjardins , [18] my colleague Mainville J.A. reviewed this analysis, emphasizing that a sentence may be distorted if a judge applies the principle of totality without sufficient explanation. [19] For example, if a global sentence is imposed without first breaking it down, one offence at a time, it becomes difficult to assess the fitness of the global sentence where a single guilty verdict is overturned on appeal or where the sentence for one offence must be modified. [ 54 ] I hasten to add that the decision not to adopt this approach is not in itself a reviewable error.

As Vauclair J.A. wrote, though it may be preferable to proceed in the opposite way, a judge may legitimately begin with an overall sentence and then attribute portions of the sentence to the various offences. [20] Similarly, Mainville J.A. said that while the Court’s suggested framework is preferred, it is not a straightjacket: faced with this aspect of sentencing, caution must be taken not to adopt a formalist approach that loses sight of the important discretionary aspect of such matters. [21] [ 55 ] With these lessons in mind, the order in which the applicant proposes to consider the issues on appeal should be recast, in order to mitigate the potential for distortion that this Court has highlighted.

For example, applying the principle of totality to the consecutive sentences before determining the just and appropriate sentence for luring – in light of the relevant objectives and criteria – should be avoided in order to understand properly the weight this offence contributes to the offender’s moral blameworthiness. [ 56 ] First, in alleging that the judge [TRANSLATION] “glossed over” the applicable framework before concluding that the sentence for luring should be concurrent to the others, the applicant submits that the judge’s reasoning on this issue was not transparent or intelligible.

This should be the first issue considered on appeal .

[ 57 ] If the reasons given for imposing concurrent sentences are unintelligible, this determination should be reconsidered using the framework set out in Guerrero Silva and Desjardins . As this Court has stated, it would then be appropriate to begin by identifying the just and appropriate sentence for luring, without considering the potential global sentence.

This should be the second issue on appeal , capturing both the applicant’s second and third issues – i.e. the alleged errors made with respect to the offender’s prior knowledge of the victim and the weight to be given to denunciation and deterrence in determining the quantum of the sentence, specifically as related to luring. [ 58 ] Continuing with the framework set out in the case law, it would then be appropriate to consider whether the sentence for luring should be served concurrently or consecutively, taking into account the judge’s holding that all the offences – including luring constituted, as a question of fact, a single criminal transaction.

These alleged errors will be analysed as the third issue on appeal. [ 59 ] The fourth and final issue on appeal is whether it was necessary to conclude that the sentence for luring should be served consecutively and then – only if that question is answered affirmatively – whether the principle of totality should be invoked to reduce the global sentence, by applying s. 718.2(

c) Cr.C. Finally, in all cases, it is necessary to ensure that the resulting global sentence is proportional and respects s. 718.1 Cr.C . [ 60 ] I recognize that the framework established by the case law should not be applied “formalistically”, and that sentencing is not an exact science. I am aware that the framework I propose is not the only way to settle the appeal.

A misapplication of this approach is not necessarily an overriding error: “A trial judge may apply faulty methodology and yet impose a sentence that is reasonable, in the exercise of his/her discretion.” [22] However, I am of the view that this approach has the advantages of not only responding fully to the issues the applicant raises, but also of minimising the risk that the overall sentence will be distorted, remaining ever mindful of the standard of review applicable to criminal sentencing. 1.

The intelligibility or “transparency” of the reasons given for a concurrent or consecutive luring sentence [ 61 ] The applicant challenges the judge’s decision to impose concurrent sentences for the five offences at issue, which resulted in a global one-year prison sentence, all the sentences – including that for luring – to be served concurrently. [ 62 ] The Crown submits that it is impossible to understand from reading the judgment why the judge ordered that the sentence for luring be served concurrently rather than consecutively to the other sentences.

In this sense, the sentence is not intelligible to the parties or to the appellate court charged with reviewing the sentence.

For this reason, the choice to impose a concurrent sentence is not deserving of deference and should be reviewed on appeal. [ 63 ] How should this question be decided? [ 64 ] The judge identified a one-year prison sentence as the appropriate sentence for luring; he was of the view that, in the circumstances, the minimum sentence adequately served the objectives of denunciation and deterrence (para. [50]). [23] He then turned to the question of whether the sentences for all the offences should be concurrent or consecutive.

After having noted the Crown’s request for a two-year global sentence, the judge wrote: [TRANSLATION] [57] Considering the principles of globality and proportionality as described by the Court of Appeal, the court is of the view that sentences for offences of a sexual nature should be served consecutively. [58] This reflects the gravity of the conduct, which was limited to a six-week period, without any physical contact and which involved only a single victim. [59] Here, the conduct included an exchange of photos and invitations to sexual touching, offences which, in the present matter, form part of the same criminal transaction linked to communication.

The acts were continuous and intertwined with one another. [ 65 ] With respect for the judge, I am of the view that his reasons do not allow us to understand why he chose to impose a sentence for luring to be served concurrently with the sentences imposed for the other infractions. [ 66 ] He offered the parties two explanations which, to my mind, are incompatible. [ 67 ] At paragraph [57], the judge invokes the sentencing principles of totality (or “globality”) and proportionality to justify ordering concurrent sentences.

This implies that the sentences would have otherwise been consecutive, but that in order to avoid an unduly long global sentence, he relied on s. 718.2(

c) Cr.C. – as was open to him to do – to order concurrent sentences. [24] He cited this

article at paragraph [49] of his analysis. [ 68 ] However, at paragraph [59], the judge provided another explanation. Declaring that the invitation to touching and exchanges of photos “are part of the same criminal transaction linked to his communication with the child” he seems to have indicated instead that, in this context, the sentences should be concurrent because the crimes form part of a “single event” or a series of “continuous” [25] acts, linked to communication and, therefore, including luring. [ 69 ] In such circumstances, it is inappropriate to apply the principle of totality since the global sentence has already been “reduced” in a way by imposing concurrent sentences.

Section 718.2(

c) Cr.C. only applies where sentences are to be served consecutively. [26] [ 70 ] Though this Court cautions against an overly formalist approach to reviewing the method used to determine whether sentences should be served concurrently or consecutively, in Guerrero Silva , Vauclair J.A. insists – and very rightly so – on the fact that that this aspect of sentencing [TRANSLATION] “must remain transparent” so as to allow the parties to fully understand the method the judge followed and to explain the outcome both to the public and the accused. [27] It goes without saying that any analysis on appeal is dependent on the intelligibility of the reasons upon which the judge rests the decision.

[ 71 ] Here, the contradiction between paragraphs [57] and [59] of the judge’s reasons precludes the parties from knowing whether a consecutive sentence was imposed for luring before being transformed into a concurrent sentence – in order to respect the principle of totality – or, if concurrent sentences were instead imposed for all the offences because they formed part of the same criminal transaction. [ 72 ] When the judgment as written impedes the Court from determining why concurrent sentences were imposed, the principle that a trial judge’s discretionary decisions attract great deference carries less weight. [28] It is possible that upon review the error will prove harmless – that a justification is given in obiter , for example – but before so concluding the Court must revisit the analysis and review the sentence imposed based on the facts retained by the judge. [ 73 ] In the judge’s defence, it is my view that one reason he was led astray was that the Crown, in its submissions on the sentence, never answered the first question of the Guerrero Silva and Desjardins framework and, thus, itself did not follow the preferred analysis upon which it now insists on appeal.

Counsel for the applicant said to the judge [TRANSLATION] “I could plead that luring merits more than the minimum sentence”, but failed to specify how much more that would be. With all due respect, in asking the Court of Appeal to rectify the situation, it seems to me that the applicant repeats the same error: it has failed to identify the just and appropriate sentence for luring.

However, in the case at hand, this first step is crucial in order to avoid distorting the appropriate balance between the global sentence and the respondent’s moral blameworthiness. [ 74 ] Even in responding to a question from the panel at the hearing on appeal, the applicant was unable to specify the quantum it truly believed appropriate for luring, entirely aside from the principle of totality and the question of whether the sentences should be consecutive or concurrent. This determination thus remains to be made. 2.

The just and appropriate sentence for luring, irrespective of the global sentence and whether the sentence is consecutive or concurrent [ 75 ] The applicant submits that the sentence imposed for luring – it bears repeating that the judge imposed the minimum one-year sentence set out at s. 172.1(2) (

a) Cr.C . – is not the just and appropriate sentence in the circumstances. [ 76 ] The applicant advances two arguments in support of this ground of appeal. First, it asserts that the judge erred in principle in deciding that the fact that the respondent knew the child and identified himself using his own profile lessened the gravity of the luring.

Second, it submits that the judge did not give primary consideration to the objectives of denunciation and deterrence, as he should have given that the offence was committed against a child. [ 77 ] I propose that these two arguments be considered in turn. 2a) The relevance of a prior relationship with the victim in the context of luring [ 78 ] In his reasons, the judge explained that the Crown’s suggestion ─ i.e . a two-year global sentence ─ was disproportionate in the respondent’s case: [TRANSLATION] [60] This is a particular situation and the imposition of a two-year sentence is disproportionate for an individual with no criminal record, where the conduct was limited to communication between people who knew one another, and without the accused’s use of a fake profile. [Emphasis added] [ 79 ] According to the Crown, this approach to an accused’s prior relationship with the child indicates that the judge erred in respect of the essence of luring.

The applicant asserts that, far from being a mitigating factor as the judge implies, the respondent’s use of his true identity facilitated his exploitation of the 12-year old child. Not only did the respondent use his prior relationship with the victim to gain her confidence and to open the door to the Facebook exchanges, but his prior relationship with the child made it easier to manipulate her in service of his plan to commit future sexual offences.

Moreover, the fact that he knew the victim aggravated the consequences the offence had for the victim. [ 80 ] The applicant considers this to be an error in principle indicating that the judge lost sight of the fact that manupulation of a child is an indicator of the gravity of the offence. In light of this error, a one-year sentence could not be the appropriate sentence for the luring that occurred here. [ 81 ] The respondent replies that this single mention is but one aspect of a broader analysis of the circumstances in the case at hand, which the judge considered carefully and at length.

He submits that by invoking this ground of appeal the applicant seeks to question the weight the judge assigned to factors relevant to determining the sentence quantum.

This aspect of sentencing partakes of the judge’s discretion which, says the respondent, calls for a high degree of deference from this Court. [ 82 ] With respect for the judge, I believe this treatment of the absence of a fake profile and the prior relationship between respondent and the victim was mistaken. [ 83 ] The judge held that [TRANSLATION] “it was the accused who sent her an invitation on Facebook, which she accepted because she had known him since she was five years old” (para. [13], judgment on the verdict).

At that time, the judge wrote, “the accused and the victim knew each other because they were both part of the small Colombian community in City A. They saw each other from time to time in different places, including at church” (para. [5], sentencing judgment). The child knew that the respondent knew her mother. As for the respondent, he knew that the victim lived alone with her mother, that there was no father present and that the child was sometimes at home at night without a babysitter. It bears repeating that the judge set aside the respondent’s version of the facts at

trial when the latter advanced that he didn’t really know the child prior to the events. [29] [ 84 ] The prior relationship not only facilitated the respondent’s contact with the victim, but also allowed the respondent to broach the topic of sexuality more easily.

This is what the judge held, in his judgment on the verdict, with respect to the sexual nature of the exchanges between the respondent and the victim: [TRANSLATION] [23] Because she felt uncomfortable discussing these topics with her mother, she felt that she could trust the accused whom she saw somewhat as the father that she didn’t have, someone in whom she could confide. [ 85 ] Indeed, the judge spoke of an “abuse of trust”, considering the fatherly image the respondent projected for the young girl (para. [46], sentencing judgment). [ 86 ] In addition, according to the judge, this pre-existing relationship allowed the contact to continue over time.

In his judgment on the verdict, he wrote: [TRANSLATION] [43] The victim did not want to expose what was happening because she feared that the local Colombian community would be informed. This would affect her image and would destroy her mother, for whom her daughter’s reputation was very important. [ 87 ] Not only did the prior relationship facilitate the commission of the crime, but in the circumstances, it further aggravated the consequences of the wrongful behaviour.

In the sentencing judgment, the judge mentioned many times that the fact that the respondent and the victim were from the same community caused greater harm to the victim and her mother (see, for example, paras. [26] and [27], [35] to [38] and [46] of the sentencing judgment). Finally, the victim’s declaration demonstrates that part of the psychological impact she felt was directly linked to the reaction of certain community members.

The judge found that the child had been humiliated, even ostracized. [ 88 ] With respect, to see the respondent’s prior relationship with the victim as a mitigating factor was an error in principle. [ 89 ] It is not anonymity or a fake profile that renders the respondent’s luring reprehensible, but rather the psychological manipulation of a child via electronic communication, the core of the offence committed.

To the extent that this manipulation is facilitated – as it was here – by a previously established relationship and by the predator’s use of his true identity, these facts do not render the conduct less serious, but rather the reverse. [30] [ 90 ] In the circumstances of this case, everything leads to the conclusion that the respondent’s previously existing relationship the child and the use of his own Facebook profile allowed him to manipulate her more. These facts also indicate a degree of pre-meditation by the respondent, accentuating the subjective gravity of his conduct.

This was not a child that he met by chance online, and the crime was not committed in a moment of distraction. The child was targeted by the respondent who, knowing her and her environment, also knew that she was vulnerable due to her age and family situation. The use of his own profile made the child a more vulnerable target for the offences he was contemplating. [ 91 ] It is true that in many cases of luring sexual predators use the internet to mask their true identity.

In Alicandro , [31] for example, Doherty J.A. of the Court of Appeal for Ontario explained that the internet often allows adults to initiate contact with children anonymously or by hiding their true identity. As Fish J. aptly described in Levigne , a fake online profile “acts as a shield” for luring predators. [32] [ 92 ] Even if the fact of consciously hiding one’s identity may increase the moral blameworthiness of an offender, it does not follow that the conduct of an offender who uses their true name with a child is less serious.

One might even go so far as to say that using one’s true identity to better manipulate a child constitutes an aggravating factor. [ 93 ] While concealing one’s identity online is easily accomplished, anonymity is certainly not the essential behaviour Parliament seeks to sanction in s. 172.1 Cr.C .

A vulnerable child’s trust may easily be won by lying about one’s identity, but it may also be won by exploiting pre-existing trust. [33] In both cases, the objective is to exploit technology in order to “sexually groom” a vulnerable young person. [34] [ 94 ] To say that this factor is neutral, or worse, that a pre-existing relationship is a mitigating factor, is not a simple mistake in weighing relevant facts. In my view, it reflects a misunderstanding of the law’s purpose.

Parliament seeks to combat the grooming of children online, whether this is accomplished by using a fake profile or not. [35] [ 95 ] Indeed, the case law provides abundant examples of established relationships of trust – between victim and teacher, or victim and coach, or victim and religious leader, or victim and close relative – being reinforced by online contact thereby allowing the predator to exploit a relationship of “trust built upon trust” where “sexual grooming” is accomplished by luring. [36] I recognize that the respondent here had no formal position of authority in relation to the child but the trial judge held, as a matter of fact, that the respondent had taken advantage of his fatherly role to elicit sexual confidences from the victim. [ 96 ] Far from mitigating the seriousness of this crime, the relationship facilitated the commission of the offence and, in retrospect, increased the blameworthiness of the respondent’s conduct. [ 97 ] Before considering the impact that this error had on the sentence imposed, I turn to the second argument invoked respecting the quantum. 2b) The objectives of denunciation and deterrence

[ 98 ] The applicant submits that the judge erred in failing to apply properly the rule set out at s. 718.01 Cr.C . , which requires courts to give “primary attention” to the objectives of denunciation and deterrence in sentences involving mistreatment of a child.

The argument is principally relevant to the sentence for luring, but ultimately applies to the other sentences imposed, all being subject to s. 718.01. [ 99 ] Despite the remark in the sentencing judgment that the objectives of denunciation and deterrence must be [TRANSLATION] “targeted”, the applicant argues that in imposing the sentences the judge gave undue weight to the respondent’s potential rehabilitation and, in so doing, failed to consider the serious harm the child suffered.

While he concluded that the respondent “learned quite a lesson from all of this” (para. [51]), the judge himself wrote that the respondent “may not have engaged in as much introspection as could be hoped for, but that no more could be asked” (para. [52]). During the sentencing hearing, the respondent continued to shift the blame elsewhere: the judge wrote that “[the respondent] attributes the problem principally to the internet which facilitates such offences” (para. [20]).

While the respondent may have undergone therapy following the verdict, the applicant reminds us that this was not therapy for pedophilia, but rather a short period of couple therapy. [37] Moreover, asks the applicant, how are we to understand the judge’s decision, in the same judgment, to sentence the respondent to 30 days of prison for failure to respect conditions, [TRANSLATION] “more specifically for using a smartphone” (para. [62])?

It is worth noting that when the mother discovered the smartphone her daughter was using, the exchanges between the respondent and the victim were ongoing and, according to his last message, he was asking to meet her. A smartphone, the applicant emphasizes, can be used as a weapon for luring. [ 100 ] In addition, says the applicant, the judgment contains no discussion of the respondent’s risk of re-offending, other than the note – in the

summary of the evidence – that [TRANSLATION], “he is not a person who has a tendency to seek out minors” (para. [21]). All this suggests that the judge accorded undue weight to rehabilitation and failed to follow the imperatives of s. 718.01 Cr.C . [ 101 ] As for the respondent, he submits that the Court may not intervene on this point, pleading that the judge was best placed to weigh the various relevant sentencing objectives.

He recalls that the judge correctly noted the importance of denunciation and deterrence, but that his consideration of these factors also took into account, and rightly so, the principle that sentences should be individualised. Deference is owed on appeal.

Considering the stringent standard of review applicable to weighing these objectives, as set out, notably, in Nasogaluak , [38] the respondent argues that nothing suggests there is room to intervene here. [ 102 ] Did the judge fail to consider the importance to be given to denunciation and deterrence alluded to in s. 718.01 Cr.C . ? [ 103 ] First, we must determine the scope of the words “ une attention particulière aux objectifs de dénonciation et de dissuasion / primary consideration to the objectives of denunciation and deterrence ” in s. 718.01 Cr.C . [39] Note that the English version of this provision sets out the rule more clearly – and in another tone – requiring a judge to give “primary consideration” to these objectives in such contexts.

The use of the word “primary” evokes an ordering of the objectives– a connotation that is, at first blush, absent from the French text.

More openly prescriptive, the English text highlights that this ordering is relevant in the discretionary sentencing of offences which – like those here – are linked to the mistreatment of a child. [ 104 ] Clearly binding upon the courts, s. 718.01 Cr.C . also serves what might be called a “pedagogical function”, [40] more clearly evident in the French version of the provision. [41] The words “ accorder une attention particulière ” in s. 718.01, adopted in 2005, declare to all those to whom by the provision is addressed – offenders, victims, lawyers, probation officers, judges – that protecting children is so important as to be [TRANSLATION] “an unwavering cardinal value in most organized societies”. [42] In sentencing matters, the named objectives are emphasized, in part, to proclaim the centrality of this core value of domestic and international law. [43] [ 105 ] That said, what meaning should be given to s. 718.01 , a text both prescriptive and declaratory in orientation, and did the judge erred in applying it? [ 106 ]

Section 718.0 is a standard, both prescriptive and pedagogical, which does not reduce judicial discretion in sentence individualization in the same way that, for example, a minimum sentence might limit consideration of the circumstances surrounding the offence and the offender’s personal characteristics. [44] Buttressed by the more technical s. 718.2(a)(ii.1), [45] s. 718.01 uses open- textured language – “primary consideration / attention particulière ” – because it seeks to shape judicial discretion by requiring prioritization of these objectives rather than dictating a particular result. [46] [ 107 ] While s. 718.01 leaves judicial discretion in place, it does provide a framework for exercising that discretion by requiring judges to give primary consideration to denunciation and deterrence.

Set by law prior to any factual consideration, a minimum sentence leaves no room for individualizing sentences.

Section 718.01, however, requires restricted weighing of objectives based on the “ attention / consideration” by the sentencing judge who must consider all relevant circumstances. The characterization of this text as a standard is crucial to understanding the standard of review before this Court. Although guided by s. 718.01, weighing sentencing objectives remains discretionary; the principles highlighted in Lacasse [47] apply to this aspect of sentencing such that the decision merits deference on appeal. [48] [ 108 ] What limits does s. 718.01 impose on judicial discretion in sentencing?

In my opinion, the shared meaning of the two versions of the provision indicate that denunciation and deterrence should be given relative precedence among the objectives the court choses to consider, without necessarily excluding other objectives from the sentencing process. [49] In other words, judges must give “ substantial weight” [50] or “primary importance” [51] to denunciation and deterrence without excluding consideration of other objectives – including potential rehabilitation. [52] The relative precedence given to the two objective increases the importance of these principles, by giving less weight to other objectives, including rehabilitation. [ 109 ] I note that, in Woodward , [53] Moldaver J.A., then of the Court of Appeal for Ontario, insisted on the fact that the well-being of children take precedence in such matters – without excluding other considerations, such as rehabilitation. [ 110 ] Here, the applicant has not convinced me that the judge failed to give denunciation and deterrence the relative precedence required by s. 718.01.

With respect for the opposing view – and acknowledging that the applicant’s arguments are serious – I am of the view that intervention is not in order here, given the deference owed on appeal with regards to the standard set out at s. 718.01. [ 111 ] The judge not only indicated that denunciation and deterrence would be “targeted”, he also acknowledged the importance of

repairing the harm caused to the victims, as well as the importance of instilling a sense of accountability in the respondent. The respondent rightly notes that the judge mentioned the impact of the events on the victim, including incidences of self-harm and suicidal thoughts. At paragraphs [46] and [61] of his reasons, the judge explicitly references the crime’s impact on the immediate victim – the child – and her mother. The judge could legitimately consider the respondent’s potential for rehabilitation. The sentence’s clemency does not, in itself, indicate that the judge erred in privileging rehabilitation.

Moreover, s. 718.01 did not prevent the judge from taking into account certain factors favourable to the respondent – including his stable marital status, the facts that he held the same job for many years and had no criminal record – in weighing sentencing objectives. [ 112 ] As our Court held R. c. Bergeron , [54] reasons for judgment addressing this aspect of sentencing clearly must amount to more than a simply stating a list the relevant objectives.

Indeed, s. 718.01 is pertinent to a court’s duty, set out at s. 726.2 Cr.C . , to give reasons justifying the sentence imposed: the expectation is that the relative precedence of these objectives will be clear in the sentence imposed. I agree that it is not easy to understand why specific deterrence does not lead to a more significant minimum sentence for luring here. However, when read as a whole, the judgment includes multiple indications that the judge considered the relative precedence to be given to the objectives listed at s. 718.01.

In my view, his reasons satisfy the applicable standards. [55] [ 113 ] I will add that, as the majority reminds us in Lacasse , the deference owed by the Court is, in part, related to the fact that the judge had the advantage of hearing and seeing the respondent at the sentencing hearing. [56] That was when the respondent proclaimed that he was not a pedophile – a statement the judge found credible. This Court is poorly situated to disturb this finding.

I see no error here, and certainly not one that “ had an impact on the sentence” as Lacasse requires. [57] Appellate courts may not intervene simply because they would have given different weight to the relevant objectives or because they might have expressed how deterrence and denunciation might be given precedence in sentencing in a case such as this differently. *** [ 114 ] In sum, only the first of the two errors alleged by the applicant – the error related to holding that a prior relationship with the victim constituted a mitigating factor – justifies the intervention of this Court, and then only to the extent that it had an impact on the sentence the judge imposed for luring. [ 115 ] Note that the judge chose to impose the minimum sentence for each offence, including one year of imprisonment for luring. [ 116 ] The judge observed that he was “bound” by the one-year minimum set out at s. 172.1(2) (

a) Cr.C . He was right: the respondent did not challenge the constitutionality of the minimum sentence and, consequently, the judge was required to apply the one-year minimum sentence. In fact, the respondent himself proposed a one-year prison sentence for luring in suggesting concurrent sentences. He has not changed his position on appeal. [ 117 ] I am aware that the Court of Appeal for Ontario declared in Morrison [58] that the minimum sentence for luring violates s. 12 of the Canadian Charter of Rights and Freedoms and cannot be saved by s. 1 .

However, given the validity of the minimum sentence was not argued in the present file, Morrison is of no assistance here.

Unlike in Morrison , the respondent did not plead that the offence committed warranted a lesser sentence than the minimum sentence for luring. [59] From this one may infer that, in his eyes, the constitutional question was not, in this file, a factor likely to influence the sentence imposed for luring. [60] [ 118 ] That being said, did the judge’s error concerning the relevance of the prior relationship with the child and the absence of a fake profile have an impact on the sentence imposed? [ 119 ] For the applicant, but for this error, the judge would have understood the exploitation of the child to be serious and that, taken alone, the sentence imposed for luring was not proportionate to the respondent’s responsibility for the crime. [ 120 ] I share the applicant’s view on this point. [ 121 ] As we have seen, a prior relationship with the child allowed the respondent to initiate contact with her via Facebook.

More importantly, being familiar with her various vulnerabilities permitted him to establish a relationship of trust that allowed the respondent to manipulate the child more easily.

This relationship of trust was central to the respondent’s “system” of pre-meditated, gradual grooming through which he ultimately sought to have a sexual relationship with a 12-year old girl whom he had identified as vulnerable. [ 122 ] Not only was the judge mistaken to see this as a mitigating factor, but I would add that the prior relationship was what allowed the manipulation, key to the offence of luring, such that the sentence imposed is clearly too lenient given the offender’s moral blameworthiness and the subjective gravity of the crime.

As was the case in Bergeron , [61] the act of luring indicated premeditation of sexual crimes to come – “grooming” – regardless of whether these crimes were ultimately committed or not. In a particularly intense fashion, for hours nearly every night, he spoke about sexuality with a 12-year old child, convinced her to send him compromising photos, sent her sexually explicit material and invited her to engage in sexual touching. And, this whole time, he was preparing to assault the child.

Here again, the situation is distinguishable from Morrison , where the Court wrote: “Although [Morrison’s] communications persisted for some two months, it cannot be said that he knowingly embarked on a systematic process of grooming a young person for sexual activity or to facilitate commission of a sexual assault that would merit a substantial sentence of imprisonment well above the fou[r] months he received.” [62] [ 123 ] Although there may have been only one victim, it seems to me undeniable that the subjective gravity of this highly premeditated crime, and the respondent’s degree of responsibility, exceed those associated with the minimum sentence.

Let us not forget, either, that it was his previous relationship with the child that explains, in large part, the extent of the suffering the respondent caused her. [ 124 ] The respondent’s ultimate goal was to sexually assault the child he had targeted. It is true that there was no assault or physical contact with the victim.

But, by its very nature, luring is an inchoate offence which seeks to sanction the related offences enumerated in the Code , whether a related offence is ultimately committed or not. [ 125 ] As early as 2006, in Jarvis , [63] the Court of Appeal for Ontario proposed a sentencing range of 12 to 24 months for luring, a

range that, faced with what he called a “pervasive social problem”, Moldaver J.A. increased in Woodward in 2011. [64] Indeed, the choice to increase the maximum sentence for luring and to impose a minimum sentence must be understood as a sign of the gravity of this crime in the eyes of Parliament. In A.H ., [65] for example, the Ontario Superior Court of Justice imposed 15 months of prison for a luring charge concerning a young victim the offender had known for a comparable period.

In Clarke , [66] the offender was sentenced to 18 months of imprisonment for luring, separately from the sentences for the other related offences he committed. Unlike this case, the offender had communicated with the child for a longer period of time and was not a first offender but, like here, there was systematic grooming.

The judge in Clarke would have imposed a sentence of two years, but following the Crown’s suggestion, set the sentence at 18 months instead. [ 126 ] It is true that 12-month sentences are frequently imposed for luring, including in matters where the “victim” of luring is a police officer. [67] In the present matter, however, given the victim was very young and suffered greatly – even having suicidal thoughts – as a result of the respondent’s conduct, a harsher sentence appears justified.

In Paradee , the Court of Appeal of Alberta imposed a 12-month sentence for luring where there had been no physical contact with the child and where the circumstances were analogous to those here: “a classic case of luring, a prolonged, deliberate and careful cultivation of a young person with a view to engendering trust and intimacy, all designed to promote sexual conduct between the two parties.” [68] I note that in Paradee , where the offender pleaded guilty, the Court indicated that, but for the Crown’s position, it would have imposed a more severe sentence than 12 months of prison. [69] [ 127 ] In Mills , a 14-month prison sentence for luring was imposed on appeal in a context where a police officer had posed as a 14-year old girl. [70] The acts took place over a two-month period and the contact was regular.

The accused sent a picture of a penis and was arrested when he showed up to meet the girl. As for mitigating factors, the accused had no criminal record, no diagnosis of pedophilia following a psychological evaluation, possessed no juvenile pornography and that no child had actually been contacted. [ 128 ] In R. v. Gucciardi , [71] the accused pleaded guilty to a single count of luring. Over the course of three weeks, he had engaged in conversations with a police officer pretending to be a 14-year old girl. He asked for naked photos of the girl and sent a video of himself masturbating.

It clearly came through from the exchanges that he wanted to have sex with her and he was arrested when he showed up to meet her. The judge held that there had been grooming and significant engagement in the plan to assault the child, as occurred here. However, he also noted the guilty plea, the sincere expression of remorse and the fact that the accused had undertaken multiple therapies for his deviant sexual behaviour.

In the end, the minimum 12-month sentence was imposed. [ 129 ] The prior knowledge of the victim, combined with the existence of a true victim subject to grooming with a view to assault, heightens the gravity of the crime here. Considered in isolation, the just and appropriate sentence for the luring committed by the respondent is 15 months considering the fact that the offender implemented a system to exploit a child whose vulnerabilities he knew. 3.

The concurrent or consecutive imposition of a sentence for luring [ 130 ] The applicant submits that the judge erred in determining that the luring sentence should be served concurrently to the sentences imposed for the other offences of a sexual nature. In addition to the difficulty related to the transparency of this aspect of the judge’s reasons, the applicant argues that the explanation offered at paragraph [59] of the judgment under appeal – that the photo exchanges and invitations to sexual touching “formed part of the same criminal transaction” as the luring – does not justify this conclusion.

In its view, luring is, both by nature and due to the circumstances of this case, a distinct offence that engages a different social interest than the other offences. As such, it should, at least in principle, be punished consecutively to the other related offences of juvenile pornography and invitation to touching, the applicant having conceded, however, that the latter two offences may be served concurrently. [ 131 ] The respondent defends the judge’s conclusion that the sentences should be concurrent.

He submits that, taken alone, either explanation offered – i.e. characterizing the offences as forming part of the same criminal transaction or applying the principles of totality and proportionality – may, taken alone, justify the global one-year sentence the judge chose to impose. Moreover, a concurrent sentence also reflects the fact that all of the offences at play engage the same social interest – protecting children from sexual abuse – such that a consecutive sentence for luring would be inappropriate because it would punish the respondent twice for the same wrongful conduct.

The respondent also recalls that the decision to order a consecutive or a concurrent sentence is a matter of judicial discretion and, to that end, this Court must show deference even if it believes that a consecutive sentence would have been preferable. [ 132 ] I note that, in light of the dates on which the offences were committed, the rule set out at s. 718.3(7) (

a) Cr.C . , adopted in 2015, was not then in force. [72] This provision requires courts which simultaneously order prison sentences for different sexual offences committed against a child to order that the sentences for juvenile pornography offences be served consecutively to those imposed for other offences. [ 133 ] Even in the absence of a legislative rule requiring that a sentence for luring be served consecutively to those for other offences, I believe the judge should have chosen the latter option and that this Court should intervene. [ 134 ] Contrary to what the respondent pleads, the offence of luring reflects Parliament’s decision to protect a social interest distinct from those the other offences seek to protect.

In addition, the judge’s factual findings militate against characterizing luring as part of the same criminal transaction as the other offences committed.

In these circumstances, subject to the principle of totality, the sentence for luring cannot be considered other than as a sentence to be served consecutively. [ 135 ] I reason as follows. [ 136 ] It is well established that offences that protect different societal interests must generally be served consecutively, subject to the principle of totality. [73] Even when these offences form part of the same criminal transaction, the rule of concurrent sentencing does not necessarily apply “where the offences constitute invasions of different legally protected interests”. [74] [ 137 ] In creating these offences, Parliament certainly sought to protect children vulnerable to one form of sexual exploitation or another.

However, the social interest engaged by s. 172.1 Cr.C . is more specific. [ 138 ] In Reynard , [75] for example, Newbury J.A., writing for the Court of Appeal for British Columbia, described the social interest

relevant to luring as related to protecting children from the possibility of sexual exploitation facilitated by the internet, while criminalization of possession and distribution of child pornography does not have this specific objective.

In Alicandro , [76] Doherty J.A. explained that the offence of luring is a clear manifestation of the Parliament’s intention “to protect children against the very specific danger posed by certain kinds of communications via computer systems.” A prevailing theme in the case law, [77] this insistence on protecting children in the online environment, where children are particularly vulnerable to manipulation, explains why the Parliament made luring a distinct inchoate offence, targeting “conduct that precedes the commission of the sexual offences to which [ s. 172.1 Cr.C . ] refers, and even an attempt to commit them.” [78] [ 139 ] It is, in my view, uncontestable that luring, the offence set out at s. 172.1 Cr.C . , targets a social interest different from those protected by the secondary offences related to communicating with a child by technological means for sexual reasons.

In the past, sexual predators sought out their victims in public parks and schools; the offence of luring now seeks to protect children in a place where they are particularly vulnerable to sexual grooming and where they are often unsupervised – the virtual environment of the internet. Parliament enacted s. 172.1 Cr.C. to criminalize purely preparatory communication by technological means – what commentators authors call “grooming” – undertaken with respect to a young victim to-be, whether or not the related offence is committed.

This grooming [79] often occurs, as it did here, thanks to the advantages the internet gives predators over children. The authors of the study “Sexual Exploitation of Children and Youth Over the Internet” [80] write the following regarding the basic conduct of luring: Typically after initiating contact, the adult involved in cases of online sexual solicitation starts a nonsexual relationship with the child or youth to gain his/her affection or interest and trust, thereby initiating a process known as ‘grooming’.

Grooming is often characterized as seduction – a slow and gradual process of active engagement and a desensitization of the child’s inhibitions – with an increasing gain in power and control over the young person. […] A close bond between child and adult is created, which facilitates compliance with the adult’s sexual advances.

Children and youth are subsequently lured into sexual interactions that involve anything from exposure to pornographic material and requests of visual material of the child or youth in sexually seductive poses, to phone conversations and then to face-to-face meetings, with the subsequent risk of direct sexual abuse. [ 140 ] In R. v.

Paradee , [81] Paperny J.A. of the Court of Appeal of Alberta repeated Fish J.’s explanations in Legare [82] regarding the social interest protected by this so-called preparatory offence, distinct from the related offences, specifying why protecting children online is a concern for Parliament. Paperny J.A. wrote: [12] Luring is dangerous and, as the Crown points out, serious.

It involves pre-meditated conduct specifically designed to engage an underage person in a relationship with the offender, with the goal of reducing the inhibitions of the young person so that he or she will be prepared to engage in further conduct that is not only criminal but extremely harmful.

Parliament has recognized that the internet has infinitely expanded the opportunity for predators to attract or ensnare children. […] A proportionate sentence for internet luring must recognize the serious nature of this offence. [ 141 ] Thus, it is plainly the prevention of the manipulation of children for sexual purposes in a virtual environment – fertile ground for this type of crime – that justifies the existence of a distinct crime and which, upon sentencing, may justify imposing consecutive sentences.

The case law explains that the online world, and digital communication between an adult and a presumably vulnerable child above all, warrants special regulation. [ 142 ] However, the judgment under appeal makes no note of luring seeking to protect a social interest other than those targeted by the offences of production or possession of child pornography, invitation to sexual touching or making sexually explicit material available to a child.

To this end, it is my humble opinion that the judgment not only lacks transparency regarding why the judge imposed concurrent sentences, but that the analysis on this point is also incomplete regarding whether the distinct social interest engaged by luring justifies a consecutive sentence. But, again, in the judge’s defence, this argument does not appear to have been raised in first instance. [ 143 ] In this context, courts sometimes highlight that it is inappropriate to impose a concurrent sentence which does not address to the distinct social interest protected by the offence of luring.

In Paradee , [83] as in McLean [84] and in Miller , [85] for example, appellate courts imposed consecutive sentences for luring and for possession of child pornography – before the Code was amended – because the offences engaged different objectives.

In my view, this is also the case here. [ 144 ] But there are additional reasons that support this conclusion. [ 145 ] Even if different societal interests justifiy the imposition of consecutive sentences for luring and for production and possession of child pornography and invitation to sexual touching here, I believe that the separate character of the luring as committed also requires this Court to intervene. [ 146 ] It should be recalled that the judge held that all the offences committed formed a single criminal transaction related to the communication, thus justifying concurrent sentences for the five counts. [ 147 ] I do not share this view. [ 148 ] The preparatory nature of luring, as an offence, and the circumstances in which it was committed, suggest the opposite of this finding.

The judge’s conclusion that all the offences form part of the same criminal transaction – a conclusion the respondent adopts without explanation – cannot be upheld. [ 149 ] We have seen that luring precedes the crimes to which s. 172.1 refers and, above all, that the offence does not require that these secondary crimes be carried out. [86] The facts of the case at hand bring to light the distinct nature of luring, as it relates to the four other counts. The grooming undertaken by luring is often, as it was here, a gradual process by which the accused gains the child’s trust.

This gradual process and the series of acts that may or may not be committed along the way should not be conflated. Otherwise, there is a risk of mischaracterizing the crime of luring. [ 150 ] Through the gradual grooming process described by the judge, the respondent began luring the child in December 2014, clearly before the first related offence, the invitation to sexual touching, was committed. Other crimes would occur, including the production of

child pornography, but only as part of this process. The respondent’s ultimate objective was to introduce the complainant to sexual relations, as indicated in the last message he sent to the child on January 15, 2015, which was cited by the judge. The judge also held that, even on January 15, 2015, on the eve of being discovered by the victim’s mother, the respondent continued the grooming: he was still preparing the child for an eventual encounter where he would introduce her to sex.

True, this last crime, which one might imagine would have given rise to charges of sexual interference or even sexual assault, committed against a 12-year old child who was still playing with dolls, did not occur. But this does not render it irrelevant to the luring. [ 151 ] Indeed, although the respondent did not achieve his ultimate objective, this was only due to the mother’s chance discovery of the smartphone used by her daughter.

The luring did not end because the respondent lost his will to perpetrate a new, more serious crime but rather only because he was caught. [ 152 ] Luring committed with the purpose of facilitating a sexual assault that never occurs is indeed still a crime. This kind of luring, though linked to the criminal offences committed and sanctioned, extends beyond a “single criminal transaction”.

However, as a result of characterizing the luring sentence as concurrent to others, this distinct offence seems to have gone unpunished, at least in part. [ 153 ] To borrow the words of the Court of Appeal of Alberta in Hepburn , [87] the effect is to give a “free ride” to an offender for one or another of the offences to be served concurrently. [ 154 ] For six weeks the respondent was in contact with the child, grooming her almost every night.

With respect, it would be unreasonable to consider to the offender’s advantage, this persistent luring, punctuated by the secondary offences to which 172.1 refers, as a “single criminal transaction”.

Such a conclusion is particularly ill-suited to the circumstances at hand, given the respondent was not given any particular sentence for luring undertaken to facilitate sexual interference or the sexual assault he was preparing to inflict upon the child. [ 155 ] The judge noted, at paragraph [58] of the judgment under appeal, that the [TRANSLATION] “gravity of the conduct [was limited] to a six-week period, without any physical contact and which involved only a single victim”.

With all due respect, this comment trivializes luring, which is committed precisely “for the purpose of facilitating ” the perpetration of the offences named in the Code . These offences certainly include those which actually occurred here: those linked to child pornography, invitation to touching and the transmission of sexually explicit material.

They also include those the respondent sought to commit but did not have the opportunity to carry out – including sexual assault. [ 156 ] In my view, these errors had an overriding impact on the judge’s decision to order that the sentence for luring be served concurrently with, rather than consecutive to, the other sentences. In these circumstances, I respectfully propose to impose a 15-month sentence, consecutive to the sentences for the other offences, subject to the application of the principles of totality and proportionality. 4.

Applying the principles of totality and proportionality [ 157 ] This ground of appeal is related to the final stage of the analytical framework set out in Guerrero Silva and Desjardins . [ 158 ] The judge refused the Crown’s suggestion of a two-year global sentence for the five sexual offences, holding that the sentence would be disproportionate to the respondent’s moral blameworthiness and the seriousness of his acts.

The judge instead ordered a one- year global sentence, accompanied by 120 hours of community service (half of what the respondent proposed) to be completed within the first of three years of probation. [ 159 ] The totality and proportionality of the global sentence must be reassessed. [88] As we have seen, the judge did not apply s. 718.2(

c) Cr.C. correctly, having concluded – independently of this provision – that the sentences should be concurrent. In my view, this reflects an error in principle concerning the distinct nature of the offence committed, namely luring.

Additionally, a reviewable error was committed respecting the quantum of the luring sentence. [ 160 ] Starting from the conclusion sought by the applicant that only the adjusted sentence for luring, on one hand, and those for production of child pornography and for invitation to sexual touching, on the other, should be served consecutively, the question is whether a global prison sentence of two years and three months is “unduly long or harsh / excès de nature ou de durée ” as contemplated by s. 178.2(

c) or rather a sentence proportional to the seriousness of the offence and to the offender’s responsibility, as required by s. 718.1 Cr.C . [89] [ 161 ] The applicant’s position on this ground is uneven. It submits that, given the judge’s errors, an increased sentence for luring would be justified, without specifying what the increase should be. It also seeks for this sentence to be served consecutively to those for production and possession of child pornography and invitation to sexual touching. In its written submissions, the applicant asks this Court to substitute [TRANSLATION] “any other sentence that that

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