R. v. Hems, 2019 ONCJ 779

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code , which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (

b) on application made by the victim, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. Hems , 2019 ONCJ 779 DATE: 2019-10-28 Central East Region BETWEEN: HER MAJESTY THE QUEEN — AND — ADAM HEMS Before Justice J. Bliss Plea entered April 2, 2019 Reasons for Sentence released on October 28, 2019

K. Staats....................................................................... counsel for the Respondent/Crown D. Reeve..................................................................... counsel for the Applicant/Defendant BLISS J.: Overview [1] In December 2017, Adam Hems was playing an online video game, ROBLOX, and began communicating with another player,J.R.. ROBLOX is meant for young children. J.R. was 11 years old. Adam Hems was 21. Initially they talked via an Xbox 1 console.

Their conversation then moved from the online game to Xbox live messenger and from there they would text each other directly throughcell phones. Between December 29, 2017 and January 7, 2018, the conversation went from J.R. telling him about her puppy to Mr.Hems asking her if she was “wet down there for [him]”, telling her that he is “jacking off and laying in [his] bed missing her”. On January 7th, unbeknownst to Mr. Hems, J.R.’s family found the text messages. J.R.’s father continued the conversation posing as hisdaughter and asked Mr. Hems to send a picture of himself.

Adam Hems sent two, the second of which was of his penis which hefollowed up by asking if “[she thought she] could fit it inside [her]”, whether she was “wet down there”, and asking to “see [her] tinypussy”. J.R’s father terminated the communication and contacted police. On March 5, 2018, Adam Hems was arrested. His computerand cell phone were seized. His cell phone was encrypted and not able to be accessed but forensic examination of his computer foundimages and videos of child pornography. [2] Mr.

Hems pled guilty to communicating between December 1, 2017 and January 7, 2018 with a person who is, or he believesis, under the age of 16 years for the purpose of committing an offence under s.152 of the Criminal Code, contrary to s.172.1(1)(

b) of theCriminal Code; this is also known as child luring.

Section 152 is invitation to sexual touching where, for a sexual purpose a personinvites, counsels or incites any person under 16 years to touch themselves or any other person. Mr. Hems also pled guilty to possessingchild pornography between December 1, 2017 and March 5, 2018. Those images were not of J.R. and unrelated to his conduct with her. [3] The Crown elected to proceed by

summary conviction. Under the Criminal Code regime each offence attracts a mandatoryminimum sentence of 6 months imprisonment. While the mandatory sentence for possession of child pornography was found by theCourt of Appeal to be unconstitutional in R. v. John 2018 ONCA 702 , [2018] O.J. No. 4495 (C.A.), the prosecution submits,nonetheless, that a six month sentence should be imposed for that charge and the mandatory minimum six month sentence should beserved consecutively for the child luring offence. The defence submits that the mandatory minimum sentence under s.172.1(2)(b)violates Mr.

Hems s.12 Charter right not to be subject to any cruel and unusual treatment or punishment and seeks a non-custodialsentence. The question of whether the mandated sentence of imprisonment amounts to cruel and unusual punishment is very muchrooted in Adam Hems’ particular circumstances which the defence describes as a “22 year old male suffering from complexdevelopmental delays and cognitive difficulties with a long history of requiring external supports and resources in order to manage athome or in the community”.

Facts [4] On January 8, 2018, J.R.’s father contacted the Nottawasaga OPP to report that his 11 year old daughter had beencommunicating with a male believed to be in his 20s. The male was Adam Hems. The conversations and pictures sent to his daughterwere of a sexual nature and sexually explicit. Adam Hems started communicating with J.R. in the beginning of December 2017 throughan online video game they were both playing. The game itself is meant for young children. Mr.

Hems’ communication with J.R.progressed from the game through an Xbox console to Xbox live messenger and to them texting each other directly through their cellphones. On the very first day of their texting, J.R. told Mr. Hems that she was in grade 6. [5] On January 7th, when J.R.’s family discovered the sexually explicit text messages, J.R.’s father posed as his daughter andcontinued the communication with Mr. Hems. Upon being asked to send a picture of himself, Mr.

Hems obliged by sending first apicture of himself bare chested and then one of his penis and followed them up with sexually explicit comments. [6] Between December 29, 2017 and January 10, 2018 there were 374 text messages sent between the victim and Adam Hems’ cellphone. The text messages were filed as an exhibit. One of the issues was whether the communications was evidence of “grooming”. The prosecution submits that Mr. Hems was grooming J.R. to engage in sexual activity while the defence disagrees. My conclusionabout whether Mr.

Hems was grooming J.R. comes from a review of those messages and whether the progression of the texts wasdesigned to build a relationship and a connection of trust to manipulate or exploit J.R. to engage in a sexually explicit exchange with him. [7] Shortly after the texts began on December 29th, Mr Hems let J.R. know “My night could be better but for now it’s really getbecause I get to talk to you so im happy”. When J.R. tells him about her puppy, he responds “cute” and then “I bet your cute too”.

Hegoes on to tell her “you are so beautiful”, and when she thanks him he writes “that’s probably soo creepy lol because im soo much olderlol well your very welcome” [8] He asks to see “pics of her”, and when she refers to a dress she wore to a dance tells her “Omg well I bet you looked amazing init”. Later he asks her, “what do you have on?”. [9] J.R. tells Mr. Hems “I am a 6th grader and u suck at spelling”. His response is to tell her “I think your amazing” and he signsoff with “Night sweet dreams Beautiful I’ll miss you talk to you in the morning hugs kisses”. Her response “xoxo” leads him to write

“Wish I was there with you lol” and “Lol kisses wish I could hold you”. This is still the first day of them texting over their phones. J.R. asks what would appear to be a rather innocent question, “So what r u doing” which Mr. Hems responds with “Making tea then shower naked then getting dressed” and “Why wish you were here?” When she comments how much sleep she can get, he tells her “Yes sleep my beautiful babygirl” [ 10 ] Mr.

Hems continues: “What you wearing this morning?” When later on she tells him that she is going to take a shower because she can’t sleep, he tells her that “[he is] still in [his] underwear Wish I was there”.

He then asks her “will you take me some pics or no lol I know” and when she says “no” he continues: “oh not just a little bit of you from the shower okay how about later?” When she resists and tells him she is tired of taking pictures of herself he turns to flattery. “But you are soo pretty and I like seeing pics of you” and insists “How about this one pic of you from when you taking your shower and that’s it for today? And you still look soo Beautiful”. “Please can I see a pic of all of you when your in the shower”. J.R. relents, but when she tells Mr.

Hems that she would send him a photograph but just of her face and hair, his response is “What why only face and hair?”. J.R. tells him she doesn’t like taking full pictures unless it’s a sport so Mr. Hems offers that he “thought it would be because she would be naked” He carries on, “So wait you will be naked?”. When J.R. tells him she is getting in the shower he persists: “Can you take me a pic when you get out.” [ 11 ] Mr. Hems continues. He asks her if she likes him, and when she tells him she does, he tells her he likes her too. The text messages become more sexually explicit.

He writes “You make me happy and hard lol”. When he asks her what she is doing and she tells him she is playing with her puppy, he responds with “your playing with yourself awe”. It continues, “I love your pictures you so beautiful and plus I like you lol”, “Would you like to see any of me?”, and “What would you like too see babygirl”. [ 12 ] When she tells him she is tired, he asks “you want to sleep on me I’ll hold you”. He flatters her with talk that he misses her and refers to her as beautiful and sexy and cute. Later he asks if she missed him, and when she tells him that she did he writes “I missed you too”.

Their texts continue over the next few days though nowhere near the amount of the first day. On January 1, 2018 one of his texts was “Babe I was wondering could I see more pics of you baby” On January 2 nd , he asks “…did you miss me sexy” and when she responds that she did, he writes “I missed you too I wish I could hold you and kiss you”. J.R. does not respond that day or the next . On January 4 th Mr. Hems resumes texting her with “Hey sexy wyd (presumably what are you doing) you wet down there for me”. She responds “Yes? What else that mean I mean wyd”. Mr.

Hems’ reply to this grade 6 girl was “I’m jacking off and laying in my bed missing you”. [ 13 ] There are no exchanges on January 5 th so on January 6 th , Mr. Hems texts J.R. “Your babe needs you”, but when she tells him she has to go to bed, he pleads with her, writing “But babe please I need you I need my babygirl”. When she asks what is wrong he repeats, “I need your love I miss you and I want to see my sexy girl”. She rebuffs him with a short “night”. He writes “I’m hard and I need your love. Please” and when she asks him what is wrong, he texts “I’m hard and I need your female love”.

He is only placated when she tells him that she loves him and he tells her he loves her too. That ended the direct communication between Adam Hems and J.R. because on January 7, 2018, J.R.’s family discover the texts, and her father then posed as her to continue the communication. [ 14 ] On January 7 th , J.R’s father writes to Mr. Hems that he had deleted his picture and asks for another one. Mr. Hems sends him a photo that appears to show himself naked. That leads to the comment, “U look naked” and Mr. Hems confirms he is. When J.R’s father writes that “my dad has a beard to”, Mr.

Hems responds, “does he have a big dick like me’ which leads to the exchange where J.R’s father texts “I don’t know I haven’t seen it”. Adam Hems then sends a photograph of his exposed penis with the messages “well here it is, tell me what you think”, “You like babygirl”, “you think you could fit it inside you”, “Well do you like it”, “Are you wet down there?” and then “Please can I see your tiny pussy?” [ 15 ] Following police investigation, Adam Hems was arrested on March 5, 2018. When interviewed the next day, Mr. Hems admitted to communicating with J.R. and exchanging picture images with her. Mr.

Hems’ cell phone and computer were seized by police. The cell phone was encrypted and police were unable to analyze it. Forensic analysis of his computer, however, found 2 images and 17 videos of child pornography. [ 16 ] A report describing a representative sample of the child pornography found was admitted on consent. One 40 second video was in a file folder titled “Preteen 9-13” and depicted a nude female between 13 and 16 years of age engaged in vaginal intercourse with an apparent adult male.

Another that was 9 seconds long in the same file folder was of a 12 year old girl in underwear and t-shirt masturbating and exposing her vagina.

A third video 3 minutes and 35 seconds in length was of a female between 8 and 10 years old that starts with her fully clothed and dancing in a sexualized manner but then proceeds to expose her chest and vagina and then digitally manipulate her vagina with her hands and expose her buttocks to the camera. [ 17 ] After five days in custody, Adam Hems was released on a surety bail with conditions requiring him to reside with his surety, his mother, not communicate with the victim’s family, not be in the company or communicate with any youth under the age of 16 years unless in the presence of his mother or father, and not possess any cell phone or possess or use any computer, or any other device that has access to the internet or other digital network.

The Defendant’s Personal Circumstances [ 18 ] Following his guilty pleas, a Pre-Sentence Report was prepared. An affidavit from Mr. Hems’ mother, Deborah Hems, was also filed along with supporting documentation setting out the challenges Adam Hems has and presents. [ 19 ] According to the PSR, Mr. Hems, now 23 years old, grew up with his two parents and half-sister from his mother’s first marriage. From a very early age there were issues with his behaviour which ultimately led to the Children’s Aid Society becoming involved. According to Mr.

Hems, he would regularly hit his mother and sister and he spent most of his time from age 7 to 18 in residential schools. His sister remains protective and supportive of him, while his mother is an advocate for her son to get him treatment which, according to her, she has “tried to find only to be denied by the system”.

[ 20 ] Deborah Hems advised that she witnessed her son, as a child, have behavioural issues and outbursts of anger which led to a diagnoses of ADD, ADHD, ODD, Tourette’s, bipolar disorder and five severe learning challenges in the area of executive function. He was identified as “intellectually delayed” and, at 7 years old, was transferred to a day treatment centre for school, and mental health and behavioural support.

At age 8, he began living full-time in a residential school, and then another residential school from age 12 to 15 returning home on weekends. [ 21 ] At age 16, Adam Hems attended the Griffin Centre residential program until he aged out of the system at 18 years old. The Discharge

Summary reported that he would often not attend classes for weeks at a time and assessed him at the “Borderline Range and, in fact, capable of earning credits”. The notes referred to expectations at school being raised, but he refused to do the work claiming it was too easy and he could do more. Since that time, Mr. Hems’ mother reports that her attempts to access services for him have been unsuccessful. [ 22 ] On the employment front, Mr. Hems expressed to the writer that he has difficulty working due to his anxiety.

He apparently had a job at Canada’s Wonderland a few years ago but according to the Sexual Offending Risk/Needs Assessment (SORNA) completed by the Griffin Centre, there were concerns about his employment as a groundskeeper in the water park area as patrons in swimming attire could pose an “increased risk for sexually inappropriate behaviour on Adam’s part”. This led to the family requesting he be reassigned, but he only lasted a few months as he and his family decided it best he quit as he was not dealing well with the crowds and anxiety of learning a new skill. [ 23 ] Mr. Hems is currently single.

His last relationship was two years ago with a girl who was 18 years old at the time. That relationship lasted a few months. Prior to that he had dated another girl a year younger than him when both were living at a group home. [ 24 ] There are a number of concerning comments Mr. Hems made to the Probation Officer with respect to his insight and appreciation of the gravity of his offending. When asked his thoughts of the child luring offence, he stated that “he wished it didn’t happen and he could go back to playing video games”.

He lacked insight into why he sent sexual messages to a child and described it as “something to do as he was bored”. The writer noted that he acknowledged responsibility for the offence but did not seem to understand the gravity of his actions. He voiced frustration about his bail restrictions and its impact on the fact he could no longer play video games and talk to his friends. He complained that his phone, computer, and video access had been taken away, but the victim was now “living her life”. He viewed his court involvement as “stupid” and his actions “bad, but not this bad”.

He admitted that he knew the girl he was talking to was underage, but did not plan on meeting her in person since she was out of the country”. [ 25 ] When asked to comment on his thoughts regarding his possession of child pornography, he indicated that he often accessed pornography sites. He expressed that while he does not purposely or specifically seek out child pornography, it did not bother him to view explicit images of children. He stated that “he will watch any porn”. As he put it, “it doesn’t matter how old they are, I just wanted to jack off and be done” .

He did voice remorse when he stated he should have deleted it off his phone but, as with the child luring offence, he feels “jipped” and “just wants to talk to his friends and play the new games coming out”. He denied any sexual attraction to minors. [ 26 ] His mother was surprised at the offences that she did not think he had “that much creativity”. His sister was not surprised by the age of the victim and characterized her brother as functioning at a much younger level. She felt that he has shown remorse and knows what he did was wrong, but believed the victim liked him.

She described her brother as lonely and may not “see the difference between adults and kids”. [ 27 ] Mr. Hems has exhibited sexually aggressive behaviour since he was 8 years old. Deborah Hems disclosed to Griffin Centre staff that he would grab her and his sister’s breasts and when he was 8 years old told her that he wanted to have sex.

Since then, she has expressed concerns with her son’s sexual conduct and its potential to pose an issue with the law. [ 28 ] The CAMH report from 2015 confirmed his diagnosis with Tourette’s disorder, OCD, Oppositional Defiant Disorder, ADHD, learning disability and possible bipolar disorder. It noted him as being quite non-adherent to his medications. It detailed concerns about his moods, risk of sexual offence, and his addiction to pornography.

It also noted him having inappropriately touched his mother and sister and his awareness that it is inappropriate for him to have a sexual interest in his 27 year old sister. There were three reported incidents of sexually inappropriate conduct commented on. The conduct included inappropriate touching and an email that threatened consequences if the female recipient did not have sex with him. [ 29 ] Adam Hems’ risk of reoffending sexually is a concern. In a psychiatric report from June 24, 2004, Dr.

Susan Dundas noted how this 8 year old boy was demonstrating sexualized behaviour and seems to be significantly unconscious about his behavior and how it affects other people. [ 30 ] In a report from the Griffin Centre from July 22, 2014, Mr. Hems’ long standing issues with unwanted touching of a sexual nature towards his mother and sister as well as his struggle with respecting personal space of female staff was explored. The primary worker attempted to work with Mr. Hems on several occasions but he avoided the subject and refused to meet with the worker.

His refusal to engage in discussing this topic seemed to be a common complaint with staff. It was reported that both his mother and sister were agreeable with engage in therapeutic family sessions, but despite attempts to set up appointments they did not follow through. The report noted an incident on May 26, 2014 when he was caught videotaping his sister changing. When confronted, he initially denied it before admitting it was intentional, and then expressed suicidal ideation.

The Griffin Centre service team recommended the family report his behaviour to police so that he would have to engage in counselling sessions that were non-negotiable. His mother declined to do so and indicated she would consult with a doctor if needed. It was in this report that Mr. Hems’ service team expressed concerns about him working at Canada’s Wonderland given the risk of being around individuals in swim attire and suggested that he seek a transfer.

Both mother and son initially disagreed with this recommendation but then advised that he was in the process of being transferred to another part of the facility. [ 31 ] This material, which the defence filed, certainly supports the defendant’s considerable behavioural challenges, but the reports also noted that throughout his treatment at the Griffin Centre, assessing his inappropriate sexual touching and boundary issues have been

a huge struggle. “The service team tried on numerous occasions to address this issue with Adam and his family, but neither appeared tobe ready to do so during the course of treatment.” Examples were provided: “When Adam sent a text message to an individualrequesting she have sex with him and threatening to hurt her if she did not comply, Deborah had a difficult time believing that Adamactually did it.

He had sexually touched his sister while she was sleeping in the summer of 2013 but his mother struggled with creating asafety plan to protect her daughter and hold Adam accountable although they did ultimately agree to complete a SORNA assessment to look at his potential risk for committing sexual assaults in the future and give specific treatment recommendations to address thisworrisome issue”. [32] The 2014 SORNA report concluded that Mr. Hems was then a high risk to reoffend sexually.

When questioned about hissexually offending behaviour towards his sister he felt his family was overreacting and that he did not think there was anything wrongwith what he did as he did not physically hurt his sister. The report went on that “it is important to note that there has been a lot ofpressure on Adam to not be open about his issues related to inappropriate sexual behaviour as his family has struggled to put this issue“on the table” in an open, honest way, which might have also impacted his ability to participate fully”. [33] The report also raised with the defendant the laws surrounding consent.

It is significant that it noted that “he knows the law thatpeople are not allowed to have sex with individuals under 16 years old and that people would get charged.” His responses also suggestedthen of his possible sexual interest in pre-pubescent females and that there were reported incidents of him touching his sister sexuallydespite being told not to. [34] What flowed from that assessment were recommendations for treatment at CAMH’s Sexual Behaviours Clinic and individualcounselling.

A referral to CAMH was made on September 2015 and another referral was made to the Mackenzie Health Program forAssessment and Treatment for Health Sexuality in 2017. He remains on both waitlists. [35] The probation officer described Mr. Hems as a “concerning candidate” for a community based sentence. His lack of insight intohis offending behaviour and absence of current treatment for sexual offending was seen to put him at risk of re-establishing patterns thatre-enforce his sexually offending behaviours and attitudes. The supplementary material provided by Mr.

Hems’ mother reinforces thatconcern. [36] The challenge to the mandatory term of imprisonment is not that Adam Hems does not present a high risk of sexuallyreoffending but that his “complex developmental delays and cognitive difficulties” makes a mandatory custodial sentence cruel andunusual because his hyper-sexualized behavior is not of his making, and he lacks the cognitive skills or capacity to manage his behaviourwithout external supports and resources, and those have either not yet been made available to him or denied.

Framework of analysis [37] There are two mandatory minimum sentences that the applicant must contend with. The challenge to the 6 month mandatoryminimum sentence prescribed by the Criminal Code for possession of child pornography pursuant to s.163.1(4) was conceded by theRespondent given the Court of Appeal’s decision in John (supra) which struck down the mandatory minimum sentence asunconstitutional. That leaves the s.12 challenge to the child luring offence. [38]

Section 12 of the Charter provides that “everyone has the right not to be subjected to any cruel and unusual treatment orpunishment”. It provides a “broad protection to Canadians against punishment which is so excessive as to outrage our society’s sense ofdecency. The court’s inquiry is focused not only on the purpose of the punishment, but also on its effect on the individual offender.” (R.v. Morrissey 2000 SCC 39 , [2000] S.C.J. No. 39 at para. 26). [39] As McLachlin C.J. explained in R. v. Ferguson 2008 SCC 6 , [2008] S.C.J.

No. 6 at para 14, "the test for whether aparticular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate. To be consideredgrossly disproportionate the sentence must be more than merely excessive. [It] must be 'so excessive as to outrage standards of decency'and disproportionate to the extent that Canadians 'would find the punishment abhorrent or intolerable'. R. v. Wiles, 2005 SCC 84, [2005] 3 S.C.R 895 at para. 4 citing Smith at p. 1072 and Morrisey at para. 26” [40] This standard is not an easy one to overcome. As Cory J. commented in Steele v.

Mountain Institution (SCC),[1990] S.C.J. No.111 at para 80: "It will only be on rare and unique occasions that a court will find a sentence so grossly disproportionate that it violates the provisions ofs. 12 of the Charter. The test for determining whether a sentence is disproportionately long is very properly stringent and demanding. Alesser test would tend to trivialize the Charter.” [41] Whether that grossly disproportionate test has been met involves an examination of all of the relevant contextual factors. In R.v.

Smith (SCC), [1987] 1 S.C.R. 1045 at 1073, Lamer J. set out some of the relevant factors including the “gravity of theoffence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range ofsentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particularoffender.” No single factor is paramount (Morrissey, supra, para 27) [42] Included in the consideration is: “[T]he actual effect of the punishment on the individual, the penological goals and sentencingprinciples upon which the sentence is fashioned, the existence of valid alternatives to the punishment imposed, and a comparison ofpunishments imposed for other crimes in the same jurisdiction.

None of these factors will be ‘in themselves decisive to a determinationof gross disproportionality’" (Morrissey, supra, para 28, referring to Goltz (SCC), [1991] 3 S.C.R. 485 at p. 500). [43] The inquiry into whether a sentence is grossly disproportionate involves two steps: First, a court must determine what would constitute a proportionate sentence for the offence according to the principles of sentencing inthe Code. Second, a court must ask whether the mandatory punishment is grossly disproportionate compared to the fit sentence for eitherthe claimant or for a reasonable hypothetical offender. (R. v.

Nur 2015 SCC 15 , [2015] 1 S.C.R. 773, at paras. 46, 77)

The Appropriate Sentence for the Defendant/Applicant [44] The prosecution submits that Mr. Hems should receive the six month term of imprisonment mandated by the Criminal Code forthe offence of child luring. I note that the prosecution submits that a consecutive six month sentence for the child pornography offenceshould be imposed and that even if a s.12 violation is found, that a conditional sentence is not appropriate in this case. In his writtenargument, the applicant submitted that an appropriate sentence for Mr.

Hems is a non-custodial disposition in the form of a conditionalsentence, suspended sentence with probation or a conditional discharge. In oral argument, a suspended sentence or even discharge wasnot pressed and with good reason. The applicant submits that a six month sentence should be imposed with respect to each charge, butthat the sentences should be served concurrently and by way of a conditional sentence order.

It is fact of mandatory imprisonment andthe unavailability of a conditional sentence for the child luring offence that, the applicant argues, amounts to cruel and unusualpunishment. [45] I propose to deal with matters in the following manner: First, I will deal with issue of whether the sentences should be servedconcurrently or consecutively; second, I will deal with the appropriate sentence for Mr.

Hems’ possession of child pornography; third, Iwill address the appropriate sentence for the child luring offence; fourth, I will address whether the sentence of imprisonment andunavailability of a conditional sentence because of the mandatory minimum sentence for child luring amounts to cruel and unusualpunishment; and fifth, if it does, is a conditional sentence appropriate in his case. Concurrent vs consecutive sentences [46] The general rule is that if offences are sufficiently interrelated to form part of one single, continuous criminal transaction, aconcurrent sentence is called for.

Where there is no legal or factual nexus between offences, consecutive sentences should be imposedabsent the total sentence being unduly long or harsh (s.718.2 (c)). (R. v. Chisholm (ON CA), [1965] 4 C.C.C. 289(O.C.A.). [47] While it would be possible for concurrent sentences to be imposed, in this case there was no connection between the child luringand the applicant’s possession of child pornography discovered on his arrest. There were no pornographic images or videos of J.R., andwhile the offence period for Mr.

Hems’ possession of the child pornography covered some of the same time period as hiscommunications with J.R., his communication with J.R. ended on January 10, 2018 whereas the child pornography was discovered onhis computer after his arrest on March 5, 2018. Unless the sentence is disproportionate to the offender’s culpability and engages theprinciple of totality, the sentences for these distinct offences should be served consecutively. Principles of Sentencing for Child Pornography [48] Mr.

Hems may wonder why he bears responsibility for the sexual abuse of children in these images and videos that he had noinvolvement in; after all, to paraphrase Mr. Hems, he didn’t physically hurt anyone. McLachlin C.J. explained why in R. v. Sharpe 2001SCC 2 , [2001] 1 S.C.R. 45 at para 92: Children are used and abused in the making of much of the child pornography caught by the law. Production of child pornography isfueled by the market for it, and the market in turn is fueled by those who seek to possess it…The link between the production of childpornography and harm to children is very strong.

The abuse is broad in extent and devastating in impact. The child is traumatized bybeing used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded. The trauma andviolation of dignity may stay with the child as long as he or she lives.

Not infrequently, it initiates a downward spiral into the sex trade.Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist,and may at any moment be being watched and enjoyed by someone. [49] There is a ripple effect to the actions of people like Adam Hems who possess pornographic images of children: The possession of child pornography is a very important contributing element in the general problem of child pornography.

In a very realsense possessors…instigate the production and distribution of child pornography - and the production of child pornography, in turn,frequently involves direct child abuse in one form or another…[I]f the courts, through the imposition of appropriate sanctions, stifle theactivities of prospective purchasers and collectors of child pornography, this may go some distance to smother the market for childpornography altogether. In turn, this would substantially reduce the motivation to produce child pornography in the first place. (R. v.Stroempl (ON CA), [1995] O.J.

No. 2772 (C.A.) at (1995), 105 C.C.C. (3d) 187 at para 8) [50] If Mr. Hems had an inner voice that told him what he was doing was wrong, that failed to deter him, and so it becomes thecourt’s role to provide an outer voice that denounces his conduct and imposes a sentence that deters him and others. [51] In R. v. E.O. (ON CA), [2003] O.J. No. 563 at para 7, Cronk J.A, spoke for the Court when she wrote: Possession of child pornography is a crime of enormous gravity, both for the affected victims and for society as a whole.

For that reason,the courts have repeatedly recognized that the most important sentencing principles in cases involving child pornography are generaldeterrence and denunciation. Further, the offence of possession of child pornography requires the imposition of sentences whichdenounce the morally reprehensible nature of the crime, deters others from the commission of the offence, and reflects the gravity of theoffence: see R. v. Sharpe (supra) and R. v. Stroempl (supra). [52] In R. v. Nisbet 2011 ONCA 26 , [2011] O.J.

No. 101, the Court of Appeal upheld a sentence of 6 months imprisonmentfollowing a guilty plea to possession of child pornography of 43 videos and 28 images showing children between the age of 4 and 14engaged in various sex acts with other children and adult males, but in doing so, took the opportunity to express how possession of childpornography is an “abhorrent crime that victimizes the most vulnerable members of our society and hence the need for sentences toreflect denunciation and deterrence.” “In our view”, the Court wrote at the time, “a message must go out that this sort of conduct will notbe tolerated.” [53] In R. v.

Inksetter 2018 ONCA 474 , [2018] O.J. No. 2702 (C.A.), the Court observed that:

16 By enacting s. 718.01 of the Criminal Code, Parliament made clear that denunciation and general deterrence must be primaryconsiderations for any offence involving the abuse of a child. Further, this Court has repeatedly stated that denunciation and generaldeterrence are the primary principles of sentencing for offences involving child pornography: R. v. D.G.F., 2010 ONCA 27, 98 O.R. (3d)241, at paras. 21-22, 30; R. v. Nisbet, 2011 ONCA 26, [2011] O.J. No. 101, at para. 3; R. v. E.O., (ON CA), [2003]O.J. No. 563, at para. 7; R. v. Stroempl, (ON CA), [1995] O.J.

No. 2772, at para. 9. 17 The courts have very few options other than imprisonment to achieve the objectives of denunciation and general deterrence: R. v.Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 6 [54] In R. v. Kwok, (ON SC), [2007] O.J. No 457 (Ont. S.C.J.) at para. 7, Molloy J. set out a non-exhaustive list ofgenerally accepted mitigating and aggravating factors to consider when sentencing in child pornography cases. Aggravating factors mayinclude: (

i) a criminal record for similar or related offences; (ii) whether there was also production or distribution of the pornography;(iii) the size of the collection; (iv) the nature of the collection (including the age of the children involved and the relative depravity andviolence depicted); (

v) the extent to which the offender is seen as a danger to children; and (vi) whether the offender has purchased childpornography thereby contributing to the sexual victimization of children for profit as opposed to merely collecting it by free downloadsfrom the Internet. [55] Mitigating factors include: (

i) the youthful age of the offender; (ii) the otherwise good character of the offender; (iii) the extentto which the offender has shown insight into his problem; (iv) whether he has demonstrated genuine remorse; (

v) whether the offender iswilling to submit to treatment and counseling or has already undertaken such treatment; (vi) the existence of a guilty plea; and (vii) theextent to which the offender has already suffered for his crime. [56] Mr. Hems’ collection of child pornography was relatively small, but included videos of girls exposing themselves and at leastone in which a child between 13 and 16 years of age was forced to engage in sexual intercourse.

While he has not been diagnosed as apedophile, his highly sexualized behavior has been a concern since he was 8 years old and has included voyeuristic conduct targeting hissister, sexually touching his sister when she was sleeping and highly vulnerable, and email communication with a female requesting sexand threatening her if she did not comply. Mr. Hems has exhibited significant behavioural challenges from a very young age. He lacksinsight into his offending and is ambivalent whether his voyeuristic sexual interests are satisfied by watching a child engaged in sexualactivity or adult pornography.

As he put it, he just wants to “jack off”. It is questionable whether Mr. Hems’ has the cognitive skills totemper his behavior, but he certainly understands that this conduct has consequences even if those consequences are as basic as losing hisaccess to the internet and online video games. [57] In s.718 of the Criminal Code, Parliament has set out what the objectives of any sentence are: (

a) to denounce unlawful conductand the harm done to victims or to the community that is caused by unlawful conduct; (

b) deter the offender and other persons fromcommitting offences; (

c) separate offenders from society, where necessary; (

d) assist in rehabilitating offenders; and (

f) promote a senseof responsibility in offenders, and acknowledgement of the harm done to victims or to the community. [58] Where the offending involves the abuse of a child, ss.718.01 and 718.2 of the Criminal Code dictate that primary considerationbe given to the objectives of denunciation and deterrence of such conduct. Of significance to Mr. Hems is that s.718.1 requires that thesentence be proportionate to the gravity of the offence and the degree of responsibility of the offender. [59] Mr.

Hems’ possession of child pornography is an offence in which a custodial sentence is necessary to fulfil the principles ofdenunciation and deterrence. It is also a sentence that should be served consecutively to the sentence to be imposed for child luring. Adam Hems had a relatively small collection of child pornography images and videos, the nature of his collection was toward the lowerend of the spectrum, he is young and had no prior involvement with the criminal justice system.

That he exhibited highly sexualizedbehavior at a very young age; certainly before one would think of a child as having a sexual drive and did not engage in intervention tohelp him quell or control those urges, was not totally in his control. He was a teenager with cognitive challenges and little insight andwhen he refused to engage in treatment or counselling, he was seemingly supported by his family in that decision. This reduces hismoral blameworthiness despite the offence itself being morally repugnant. While Mr.

Hems still lacks insight into his offending andneed for treatment, he attended for assessments at CAMH and Mackenzie Health Centre and is on their waitlists for programs to addresshis sexual behavior. [60] In R. v. Schulz [2018] O.J. No. 3526 (C.A.), the appellant, who was assessed as a low risk for sexual recidivism, was sentencedto 45 days imprisonment to be served intermittently followed by three years probation on his plea to possessing 45 unique images and155 videos of child pornography. While denunciation and deterrence call for a term of imprisonment, in Mr.

Hems’ case I find that itneed not be what other offenders in a similar position might receive as other offenders do not share the particular makeup that Mr. Hemshas been burdened with. Considering his guilty plea, lack of a prior record, cognitive challenges, age, and number and nature of hiscollection, and circumstances that are unique to the offender and the offence, the appropriate sentence is one of 60 days imprisonment. Whether that could be served by way of a conditional sentence will addressed later on in these reasons.

S.12 and the Mandatory Minimum Sentence for Child Luring [61] The Crown submits that the mandatory minimum sentence of six months imprisonment for child luring, to be servedconsecutively to the sentence for possession of child pornography, should be imposed in Mr. Hems’ case. The defence does not disagreethat a six month term of imprisonment is appropriate but argues that it should be served by way of conditional sentence order, and thefact that such a sentence is not available under s.172.1(2)(

b) violates Mr. Hems’ rights under s.12 of the Charter. [62] Accepting that a six month sentence is appropriate for Mr. Hems, I must then ask whether the mandatory punishment, whichdisentitles him to a conditional sentence is grossly disproportionate compared to the fit sentence for either the claimant or for areasonable hypothetical offender: see R. v. Nur 2015 SCC 15 , [2015] 1 S.C.R. 773, at paras. 46 and 77. [63] The applicant asks me to follow the reasoning of the Court of Appeal in R. v. Morrison [2017] O.J. No. 582 (C.A.) that led theCourt to uphold the trial decision declaring the 1 year mandatory minimum sentence under s.172.1(2)(

a) to be of no force or effect, andthe comments of the majority and dissent at the Supreme Court of Canada 2019 SCC 15 , [2019] S.C.J. No. 15 when Morrison

came before that Court for consideration. [ 64 ] The applicant seeks to compare Adam Hems to Mr. Morrison and highlight some of the observations of the Court of Appeal that the appellant in that case did not embark on a systemic 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 four months he received. There was never any face-to-face encounter and, as the trial judge found significant, there was no indication Mr.

Morrison intended to commit a physical sexual offence in relation to an underage child. ( Morrison , supra (C.A.), para 131). While I accept that Mr.

Hems did not intend to commit a physical sexual assault upon J.R., his communication had all the hallmarks of grooming to persuade her to engage in sexual activity. [ 65 ] While the majority of the Supreme Court of Canada in Morrison declined to rule on the mandatory minimum sentence issue, Moldaver J. for the majority provided some sense of the issues at play for another day, in contrast to Karakatsanis J.’s dissenting opinion which did not hesitate to wade in on the issue and conclude that s.172.1(2)(a), the 1 year mandatory minimum sentence when the Crown proceeds by indictment, violates s.12 of the Charter.

The comments from both sides offer some guidance on a challenge to s.172.1(2) (b). From Moldaver J.: …Several features of s. 172.1 suggest that the mandatory minimum under subs. (2)(

a) is, at the very least, constitutionally suspect. Subsection 172.1(2) "casts its net over a wide range of potential conduct", making it potentially vulnerable to constitutional challenge given the range of reasonably foreseeable applications of the mandatory minimum: Nur , at para. 82 ; Lloyd , at para. 35. The mandatory minimum attaches to any offence committed under s. 172.1(1) , and these offences vary in a number of respects.

They include child luring in the context of communications with a person who is, or who the accused believes is, of various ages -- less than 18 years old under s. 172.1(1) (a), less than 16 under s. 172.1(1) (b), and less than 14 under s. 172.1(1) (c).

Moreover, s. 172.1's scope encompasses situations potentially 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. (para 146) Subsection 172.1(1) also criminalizes communications sent for the purpose of facilitating a wide array of designated secondary offences.

These include, among others, sexual interference with a person under 16 (s. 151), sexual exploitation (s. 153(1)), incest (s. 155), bestiality in the presence of a person under 16 (s. 160(3)), exposure of genitals to a person under 16 (s. 173(2)), aggravated sexual assault (s. 273), and abduction (ss. 280 and 281). The secondary offences vary in terms of their gravity, as evidenced by the fact that Parliament has assigned markedly different sentencing ranges to different offences within this list.

For example, a conviction for aggravated sexual assault against a person under 16 carries with it a mandatory minimum of five years' imprisonment and a maximum penalty of lifetime imprisonment (s. 273(2)(a.2)).

By contrast, a conviction for exposure of genitals to a person under 16 carries with it a mandatory minimum of 90 days' imprisonment and a maximum of two years' imprisonment where the Crown proceeds by way of indictment (s. 173(2)(a)) and a mandatory minimum of 30 days' imprisonment and a maximum of six months' imprisonment where the Crown proceeds summarily (s. 173(2)(b)) -- these two mandatory minimums are in fact less strict than those established under s. 172.1(2).

And certain designated secondary offences carry no mandatory minimum at all. (para 147) As this brief overview demonstrates, there is considerable variation in terms of the conduct and circumstances that may be caught by s. 172.1(1) .

Yet, despite this variation, Parliament has not included a "safety valve" in the provision that would allow judges to exempt outlier cases where a significantly lower sentence might be appropriate, making the mandatory minimum provision vulnerable to constitutional challenge: see Lloyd , at para. 36. (para 148) Moreover, the fact that child luring is a hybrid offence may present additional concerns from a s. 12 perspective. If the Crown proceeds by way of indictment, then the mandatory minimum is one year's imprisonment (s. 172.1(2)(a)).

If, however, the Crown proceeds summarily, then the mandatory minimum is six months' imprisonment (s. 172.1(2)(b)). By creating a hybrid offence, Parliament has acknowledged that the offence can occur in circumstances where considerably lower sentences are appropriate. (para 149) ... Child luring is a serious offence that targets one of the most vulnerable groups within Canadian society -- our children. It requires a high level of mens rea and involves a high degree of moral blameworthiness.

And while the offence may be committed in various ways and in a broad array of circumstances -- which is generally the case with most criminal offences -- the simple fact remains that in order to secure a conviction, the Crown must prove beyond a reasonable doubt that the accused intentionally communicated with a person who is, or who the accused believed to be, underage, with specific intent to facilitate the commission of a sexual offence or the offence of abduction against that person.

Thus, it is at least arguable that a mandatory minimum sentence of one year's imprisonment is not grossly disproportionate in its reasonably foreseeable applications. (para 153) [ 66 ] Justice Karakatsanis’ words in her dissenting opinion are also worth repeating: …s. 172.1(1) captures a wide variety of communications. The offence can be committed by individuals who use the Internet to target children for the purpose of physically exploiting them or, conversely, by individuals who have no intention of meeting their victims in person. Similarly, the duration of the communication may vary significantly.

While, in some cases, the offender will have engaged in an extended dialogue with the victim in order to "groom" him or her, the offence can equally be made out through a short series of messages lasting only a few minutes.

As my colleague points out, it can capture a single text sent by a 21-year-old adult to a 15-year-old adolescent or multiple conservations taking place over a long period between a mature adult and a 13-year-old child (Moldaver J.'s Reasons, at para. 146)… 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 ). (para 182) The personal circumstances of the offender and the relationship between the offender and the victim may also vary significantly.

Past cases demonstrate that child luring offences are sometimes committed by individuals who are close in age to their victims, by those who suffer from cognitive difficulties or mental illness, and by individuals who were themselves abused in the past (see e.g. R. v. Hood , 2018 NSCA 18 , 409 C.R.R. (2d) 70; R. v. S. (S.), 2014 ONCJ 184 , 307 C.R.R. (2d) 147; R. v. Crant , 2017 ONCJ 192 ).

These factors may diminish the moral blameworthiness associated with the offence (see s. 718.1 of the Criminal Code ). (para 183) Given the variety of circumstances captured by the offence, it is not surprising that the s. 172.1(1) jurisprudence demonstrates that the fit

and proportionate sentence can be significantly less than the one-year mandatory minimum term of imprisonment required by theCriminal Code. Courts applying the Criminal Code's sentencing principles have determined that, in certain child luring cases, a fit andproportionate sanction included lesser penalties: a short period of institutional incarceration of 90 days or less (Alicandro, at paras. 2 and49; R. v. Read, 2008 ONCJ 732 at para. 29; see also R. v. Dehesh, [2010] O.J. No. 2817 (S.C.J.), at para. 9; S. (S.), at para. 91); aconditional sentence (R. v.

El-Jamel, 2010 ONCA 575, 261 C.C.C. (3d) 293, at paras. 2 and 20; R. v. Folino, (ONCA), 2005 ONCA 258, 77 O.R. (3d) 641, at para. 33; R. v. B. and S., 2014 BCPC 94, at para. 42 ; R. v. Danielson, 2013 ABPC26, at para. 89 ); or even a conditional discharge (R. v. Pelletier, 2013 QCCQ 10486 at para. 73 ). Although some ofthese cases (Dehesh; S. (S.); Danielson) proceeded by way of

summary conviction, they demonstrate that the offence can warrant suchsentences. And, as the Nova Scotia Court of Appeal recently noted, in certain reasonably foreseeable cases, a suspended sentence wouldbe appropriate (Hood, at para. 154). (para 184) [67] The majority in Morrison, however, declined to rule on whether the mandatory minimum under s. 172.1(2)(

a) infringes s. 12 ofthe Charter, and set aside the Court of Appeal's conclusion to the contrary. [68] Between the time of the Court of Appeal’s ruling in Morrison striking down s.172.1(2)(

a) and the Supreme Court of Canadasetting aside that ruling, Wakefield J. dealt with a s.12 challenge to s.172.1(2)(

b) in R. v. Randall [2018] O.J. No. 3812 (C.J.). At thetime, Wakefield J. observed that “the mandatory one-year minimum sentence for this offence when proceeded with by way of indictmentwas struck down, but only for indictable elections. The result is that an indictable election lacks any minimum sentence, while thesummary election does have a minimum.

In other words, the least egregious offender against whom the Crown elects by way ofindictment can receive a lower sentence than the same offender on the same facts would receive if proceeded summarily.” (Randall,supra, para 4). [69] In dealing with whether the mandatory six month sentence would be grossly disproportionate for either Mr. Randall or areasonable hypothetical offender, Wakefield J. wrote: I have been provided a number of cases by both Crown and Defence in this application, which are part of the record. However, I agreewith Mr.

Shulman that the most evocative example is the real life sentencing facts found in R. v. S.S., 2014 ONCJ 184. (para 38) In S.S., Justice Griffin received a guilty plea on the following facts: Mrs. A.C. on November 8, 2012, reported to the police that her 16year old son was receiving messages from an older male, S.S., on his Facebook account. These messages included asking the young manto do something of a homosexual nature, such as provide photographs of the young man with his shorts and boxers off, have a showerwith S.S., touch S.S., put on a condom.

There would be inducements, such as letting the young man drive S.S.'s car, payment of money,provide $200 to buy new hockey skates. S.S. also advised the young man that a person named C.L. would pay money to perform sexualacts with him. The young man in question rebuffed S.S., but S.S. persisted in his messaging. The young man made it clear to S.S. thatthe sexual invitations were unwanted and S.S. apologized, but then renewed the unwanted invitations. There was never any sexualtouching between the young man and S.S. S.S. was 20 years old at the time, with the young man being 16.

The time period in questionwas from early October 2012 through November 12, 2012. (para 39) [70] Wakefield J. concluded that the consequences of a minimum sentence to the hypothetical offenders are grossly disproportionateto an appropriate sentence, taking into account the seriousness of the offence which is very high, though inconsistent with the lack ofminimum sentences in many of the offences this

section is trying to prevent, and found that this minimum sentence breaches s. 12 of theCharter. (Randall, supra, para 51) [71] In Nur, the Court held that “the reasonable foreseeability test is not confined to situations that are likely to arise in the generalday-to-day application of the law. Rather, it asks what situations may reasonably arise. It targets circumstances that are foreseeablycaptured by the minimum conduct caught by the offence. Only situations that are "remote" or "far-fetched" are excluded”.

The Courtdistinguished between what is foreseeable although "unlikely to arise" and what is "remote and far-fetched". (Nur, supra, para 68). [72] When assessing the proportionality of a mandatory punishment under s. 12 of the Charter, the court must consider not only thepunishment on its face, but also the “effects” of that punishment on the offender (R. v. Boudreault 2018 SCC 58 , [2018] S.C.J.No. 58 at para 39, 43-44) and includes the “collateral consequences” of the sentence given that such consequences are relevant to theoffender’s personal circumstances. (R. v. Pham 2013 SCC 15 , [2013] S.C.J.

No. 100 at para 11) [73] The applicant submits that in Adam Hems’ particular circumstances before me, as with the “reasonable hypothetical” offenderwith developmental, including cognitive delays, the collateral consequences of a prison sentence include the individual not being able tocope with the lack of “support” in prison nor deal with the harsh realities of a prison environment. [74] It is not far-fetched to imagine an individual who is socially isolated, because of cognitive challenges or intellectualimpairments, who operates at a more child-like level, and whose use of the internet is his or her primary source of interaction with theworld at large, engages in sexually explicit conversation with a teenager, albeit one under 16 years.

His or her actions would be capturedby the

section and the mandatory custodial sentence that must follow. [75] A sexually explicit message by such an individual to persuade their correspondent to engage in sexual activity, whether over agaming site, or a social media app, or by text or email, would be captured by this section.

That does not condone the activity, but doesmake the mandatory nature of the response, the imposition of a mandatory minimum six month term of imprisonment to be "so excessiveas to outrage standards of decency" or "abhorrent or intolerable" to society when the offender, while intentionally engaged in suchconduct is someone who is developmentally delayed with significant intellectual challenges but must nonetheless be put into custody todenounce and deter such conduct because a court has no discretion to consider lesser sentencing options that would similarly denounceand deter the conduct. [76] When the Court of Appeal struck down the six month mandatory minimum sentence for possession of child pornography inJohn (supra), the Court observed that “[t]he mandatory minimum is entirely unnecessary.

This court has recently emphasized theimportance of denunciation and deterrence for any offence involving abuse of a child, and that those principles are the primary principlesof sentencing applicable for such offences involving child pornography: R. v. Inksetter 2018 ONCA 474 , [2018] O.J. No. 2702

at para. 16. (John, supra, para 41.) Unnecessary or not, I find that the mandatory sentencing regime is overbroad and grosslydisproportionate for the reasonable hypothetical, and violates s.12 of the Charter. [77] Where a legislative provision is found to be inconsistent with the Charter, the Crown may demonstrate that the claimed Charterinfringement is nonetheless saved by s.1 of the Charter.

In the case before me, the Crown acknowledged that it is difficult for therespondent to show that a mandatory minimum sentence that has been found to be grossly disproportionate under s.12 is proportionate asbetween the deleterious and salutary effects of the law under s.1. [78] To justify the constitutional violation, the Crown must show that the infringing mandatory minimum sentence is “rationallyconnected to the goals of denunciation, deterrence and retribution”. (R. v. Oakes (SCC), [1986] 1 S.C.R. 103).

Therespondent submits that given the pressing need to protect children, the mandatory minimum sentence of six months in custody forinternet luring on the facts of this case, is proportionate and saved by

section 1. In my view, that does not answer, however, whether it isthe mandatory nature of imprisonment, or the possibility or probability or even inevitability of imprisonment, or whether it is theancillary orders such as the sex offender registration, that serves to denounce and deter individuals from engaging in child luring. [79] The second step in the s. 1 analysis is to determine whether the mandatory minimum sentence provision is “reasonably tailored”to its objectives so that the s.12 Charter right is only minimally infringed.

The respondent submits that the repeated expressions by theCourts of the seriousness of the offence and observations that conditional sentences are generally not appropriate for this offencecommitted against an actual child, that it is reasonably necessary and justified to impose a six month custodial sentence. [80] On this point, McLachlin C.J. wrote in R. v. Lloyd 2016 SCC 13 , [2016] S.C.J. No. 13: “As this Court's decision in R.v.

Nur [supra] illustrates, the reality is that mandatory minimum sentences for offences that can be committed in many ways and undermany different circumstances by a wide range of people are constitutionally vulnerable because they will almost inevitably catchsituations where the prescribed mandatory minimum would require an unconstitutional sentence. One solution is for such laws to narrowtheir reach, so that they catch only conduct that merits the mandatory minimum sentence.

Another option to preserve the constitutionalityof offences that cast a wide net is to provide for residual judicial discretion to impose a fit and constitutional sentence in exceptionalcases. This approach, widely adopted in other countries, provides a way of resolving the tension between Parliament's right to choose theappropriate range of sentences for an offence, and the constitutional right to be free from cruel and unusual punishment.” [81] The final step in the s. 1 analysis looks to whether the deleterious impact of the constitutional infringement is proportionate tothe salutary effect of the legislation.

The Respondent submits that the weighing of the law on protected rights against the beneficialeffect of the law in terms of greater public good that it is an important and pressing public good to protect young children from adultsexual predators on the internet by imposing exemplary penalties. No issue is taken with the goal of the legislation.

The issue iswhether the net has been cast too wide and captures individuals whose conduct needs to be sanctioned but the mandated sentencingregime leads to the potential for disproportionate application. [82] I find that the violation of s.12 of the Charter by the mandatory minimum sentence in 172.1(2)(

b) is not justified by s.1, and so Ifind I am free to impose a fit and appropriate sentence unencumbered by the mandatory minimum sentence, including consideration ofwhether a conditional sentence is appropriate in this case. Sentencing for Child Luring [83] Both Crown and defence agree that a six month term of imprisonment is appropriate.

There are significant qualifications to thedefence position, however, since it was posited on the basis that concurrent six month sentences should be imposed for child luring andpossession of child pornography, and subject to his successful s.12 challenge, that a conditional sentence is appropriate. [84] While denunciation and deterrence are the primary sentencing considerations, that does not preclude the imposition of aconditional sentence. Lamer C.J. wrote, in R. v. Proulx [2000] 1 S.C.J. No. 6 at para 100: …a conditional sentence can achieve both punitive and restorative objectives.

To the extent that both punitive and restorative objectivescan be achieved in a given case, a conditional sentence is likely a better sanction than incarceration. Where the need for punishment isparticularly pressing, and there is little opportunity to achieve any restorative objectives, incarceration will likely be the more attractivesanction. However, even where restorative objectives cannot be readily satisfied, a conditional sentence will be preferable toincarceration in cases where a conditional sentence can achieve the objectives of denunciation and deterrence as effectively asincarceration.

This follows from the principle of restraint in s. 718.2(

d) and (e), which militates in favour of alternatives to incarcerationwhere appropriate in the circumstances. [85] Proulx spoke of denunciation through the sentencing process. “[A] sentence with a denunciatory element represents asymbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values...AsLord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: "society, through the courts, must show its abhorrenceof particular types of crime, and the only way in which the courts can show this is by the sentences they pass".

Lamer C.J. went on toobserve that “[i]ncarceration will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally amore lenient sentence than a jail term of equivalent duration. That said, a conditional sentence can still provide a significant amount ofdenunciation.

This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extendedbeyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.” (Proulx, supra, para 102) [86] The amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender,the nature of the conditions imposed, and the community in which the sentence is to be served.

As a general matter, the more serious theoffence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be. However, there maybe certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which toexpress society's condemnation of the offender's conduct. (Proulx, supra, para 106) [87]

Section 742.1 reads: Where a person is convicted of an offence, except an offence that is punishable by a minimum term ofimprisonment, and the court (

a) imposes a sentence of imprisonment of less than two years, and (

b) is satisfied that serving the sentence

in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principlesof sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community,order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditionalsentence order made under

section 742.3. [88] Before imposing a conditional sentence, four prerequisites must be met: ● the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; ● the court must impose a term of imprisonment of less than two years; ● the safety of the community would not be endangered by the offender serving the sentence in the community; and ● a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. [89] It is the prerequisite of the safety of the community not being endangered by Mr.

Hems serving his sentence in the communitythat presents the greatest hurdle for Mr. Hems and a conditional sentence.

The focus of the analysis is on the risk posed by theindividual offender while serving his sentence in the community. (Proulx, supra, para 68) If the sentencing judge is not satisfied that thesafety of the community can be preserved, a conditional sentence must never be imposed. (Proulx, supra, para 63). [90] The assessment of the danger to the community posed by the offender while serving his or her sentence in the community, mustconsider two factors: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence.

If the judge finds that there is a real risk of re-offence, incarceration should be imposed. (Proulx, supra, para 69) The risk of re-offence should also be assessed in light of the conditions attached to the sentence. Where an offender might pose some risk ofendangering the safety of the community, it is possible that this risk be reduced to a minimal one by the imposition of appropriateconditions to the sentence. (Proulx, supra, para 72) [91] In R. v. Rafiq 2015 ONCA 768 , [2015] O.J. No. 5878 (C.A), the Court was asked to revisit the conditional sentenceimposed on Mr.

Rafiq following his guilty plea to one count of child luring. Amongst other things, the court distinguished the casebefore it from R. v. Folino (ON CA), [2005] O.J. No. 4737 (C.A.) and R. v. El-Jamel 2010 ONCA 575 because ofthe involvement of a real victim and not an undercover police officer posing as a child, but also acknowledged that the nature andduration of the offending was different. [92] There can be little argument with the message expressed in Folino that “the offence of child luring must be dealt with seriouslyby the courts. The social policy underlying the enactment of this offence is clear.

Many Canadian families have home computers withInternet access. Children are frequent users of the Internet. Children, as vulnerable members of our society, must be safeguarded againstpredators who abuse the Internet to lure children into situations where they can be sexually exploited and abused. In most circumstancesinvolving the offence of child luring, the sentencing goals of denunciation and deterrence will require a sentence of institutionalincarceration.

Indeed, it will only be in the rarest of cases that a conditional sentence will be appropriate in a case involving this offence.(Folino, supra, para 25) [93] McMurtry C.J.O. found that Rafiq was one of those rare cases given the appellant’s prior unblemished record, support of manymembers of his community, uncontradicted expert evidence that the risk of repeating this or any other socially acceptable behavior wasnegligible, that according to phallometric testing he does not suffer from pedophila or hebephilia, he has taken responsibility for hisactions, is receiving ongoing psychological therapy and counselling, and a psychiatric assessment that indicated that “any period ofincarceration might ‘open him up to the risk of fatal dissociation culminating in possible suicide’” and fresh evidence that “any period ofincarceration would be extremely harmful to Mr.

Folino’s mental state.” (Rafiq, supra, para 26-30) [94] In Adam Hems’ case, there is no evidence before me of the possible harm of incarceration on him, but it is submitted that givenhis intellectual and cognitive limitations and challenges, incarceration will be particularly difficult for him. [95] Adam Hems has exhibited highly sexualized behavior since he was 8 years old. Even then it was remarked that he seemedsignificantly unaware of his behavior. Throughout his time in residential facilities, concerns have been raised about his sexual conductand risk of offending sexually.

In a CAMH assessment he is also reported to have an addiction to pornography. [96] Attempts made to explore Mr. Hems’ long standing issues with unwanted sexual touching while in treatment failed as he wouldnot discuss the topic and express suicidal thoughts if pressed. Family members were supportive of therapeutic family sessions, but didnot pursue appointments. A recommendation to report non-consensual sexual conduct to police to force him to engage in counsellingwas rejected by his mother and instead the plan was to consult with a doctor if it was needed. [97] When Mr.

Hems was assessed to look at his potential risk for committing sexual offences in the future and give specifictreatment recommendations to address “this worrisome issue”, the report concluded that Mr. Hems was a high risk to reoffend sexually. His response to the inappropriate sexual behaviour towards his sister showed his lack of insight. His view was that his family wasoverreacting. He expressed that “there was not anything wrong with what he did as he did not physically hurt his sister”. These reportsof him touching his sister sexually were despite being told not to.

That same report went on to observe that “it is important to note thatthere has been a lot of pressure on Adam to not be open about his issues related to inappropriate sexual behaviour as his family hasstruggled to put this issue “on the table” in an open, honest way, which might have also impacted his ability to participate fully”. [98] The report also commented on Mr.

Hems’ understanding of the laws surrounding consent and his acknowledgment that “heknows the law that people are not allowed to have sex with individuals under 16 years old and that people would get charged.” Hisresponses, however, also suggested a possible sexual interest in pre-pubescent females. [99] What flowed from that assessment were recommendations for treatment at CAMH’s Sexual Behaviours Clinic and individualcounselling. A referral was made on September 2015 and another referral was made to the Mackenzie Health Program for Assessment

and Treatment for Health Sexuality in 2017, and he remains on those waitlists. [ 100 ] The author of the PSR described Mr. Hems as a “concerning candidate” for a community based sentence. His lack of insight into his offending behaviour along with the lack of current treatment for sexual offending was seen to put him at risk of re-offending. He lacks insight and appreciation of the gravity of his offending. [ 101 ] The defence argues that Mr.

Hems understands his conduct was wrong but does not understand the harm caused and that he needs to be taught boundaries and staying within them and that diminishes his moral blameworthiness. It is argued that Mr. Hems was not engaged in predatory or grooming behavior and that the consequences of a breach if he were to be subject to a conditional sentence are severe. [ 102 ] The defence refers to R. v. Scofield [2019] B.C.J. No. 22 (C.A.) and R. v. Swaby 2018 B.C.J. No. 3603 (C.A.) where conditional sentences were imposed on individuals with cognitive deficits following successful s.12 challenges.

In both cases, the appellate court was dealing with the fitness of the sentence for individuals who had, in one case committed two counts of sexual interference, and in the other, possession of child pornography. [ 103 ] In Scofield , the judge found that Mr. Scofield's "cognitive disabilities and impaired executive decision-making brought his maturity and reasoning to that of a much younger person well within the five-year age exception in s. 150.1(2.1) and diminishe[d] his moral blameworthiness…Mr.

Scofield was intellectually much younger than his chronological age, was intellectually challenged, had psychological and cognitive issues, and was mentally and emotionally immature. ( Scofield , supra, para 52) [ 104 ] The Court noted that “Mr. Scofield met all three DSM-IV-TR criteria for a diagnosis of mental retardation.., placed in the bottom 0.3rd percentile and has an IQ of 59. An assessment of his brain function indicated significant impairment in cognition, core academic skills, executive functioning, memory, communication, adaptive function, and attention and activity level.

It also disclosed that he may have mild neurological abnormality in sensory and motor movement and incomplete brain development: para. 35.” ( Scofield , supra, para 53) [ 105 ] The trial judge and reviewing court also had opinions from Mr. Scofield’s family doctor that his “judgement, insight, ability to understand complex issues and social cues is very limited and the repercussions of some of his actions and behaviours are also not understood and believed he did not appreciate or understand a lot of what he was doing", and from a psychologist who opined that “Mr.

Scofield's cognitive deficits influenced his behavior and were a causal factor to him committing the offences”. ( Scofield , supra, para 54- 55) [ 106 ] The Court in Scofield made reference to Swaby in determining the fitness of the conditional sentence. Mr. Swaby also had significant cognitive and intellectual impairments, as well as other mental health problems, including auditory hallucinations. Against that, his collection of child pornography was extensive and portrayed children, including very young children, in violent and horrific circumstances. Mr.

Swaby understood what he was doing was wrong, but did not know "how wrong it was". This led both the sentencing and

summary conviction appeal judge to conclude that he had a highly reduced level of moral culpability based on his personal circumstances, and that reduced level of culpability supported their findings that a fit and proportionate sentence would be a Conditional Sentence Order. (Swaby, supra, para 72-74) [ 107 ] Mr.

Hems similarly argues that his cognitive deficits reduce his moral culpability and are mitigating factors that support the imposition of a conditional sentence. [ 108 ] It is argued that the risk to the community is abated by terms of any conditional sentence order which could prohibit access to the internet, the threat of “real jail” if there is a breach, and his demonstrated compliance with court orders by adhering to the restrictive terms of his bail.

It is argued that if the means for him to reoffend are taken away, his access to the internet, then you take away his risk to the community. [ 109 ] Adam Hems has a history of sexually inappropriate and aggressive behaviour. His mother has had concerns with his sexual conduct and its potential to pose an issue with the law. Those concerns have come to fruition. He has not been able to restrain his sexual conduct to consenting adults nor does he seem to care.

Taking from his comments towards child pornography, that “it doesn’t matter how old they are, I just [want] to jack off and be done”, I find that the same attitude exists with respect to any communication he might engage in over the internet. [ 110 ] The reality is that almost every means of communication is over the internet, and the only way to manage the risk he presents is to eliminate his access to the internet until he has engaged in treatment to manage his sexual urges. It is just not feasible to eliminate completely his access to smartphones or other computers.

His offending in the case before me began through an Xbox console, moved to a live messenger app, and carried on through cell phones. His risk of sexually reoffending remains high. Despite his compliance with the terms of his bail I am not confident that he will continue to be able to remain away from essentially all means of modern day communication and as a result, his risk of sexual re-offending remains high.

On that basis alone, a conditional sentence is not appropriate in this case. [ 111 ] Even if I found that the safety of the community was not endangered by him serving his sentence in the community, I am of the view that this is not one of the rare cases in which a conditional sentence would be appropriate. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, be similar to sentences imposed on similar offenders for similar offences in similar circumstances but must also be tempered by restraint.

One needs only to revisit Adam Hems’ timeline and his own words to J.R. to understand why his conduct calls for a custodial sentence. [ 112 ] In December 2017, Adam Hems began communicating with J.R. through an online video game. He initiated contact and continued texting her even when she told him she was in grade 6. His words to her had the classic pattern of grooming. He flatters her, tells her how beautiful and cute she is; all the insecurities that she might have are allayed by his words. He then tests the waters.

When she tells him about a dress she wore to a dance, he flatters her with how amazing he imagines she looked in it, and then asks what

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