R. v. Saffari, 2019 ONCJ 861

ONTARIO COURT OF JUSTICE CITATION: R. v.

Saffari , 2019 ONCJ 861 DATE: 2019 11 29 COURT FILE No.: York Region – Newmarket 18000578 BETWEEN: HER MAJESTY THE QUEEN — AND — MILLAD SAFFARI Before Justice Marcella Henschel Heard on October 15 and 16, 2018, January 31, 2019, March 1, 2019, October 22, 2019 and November 26, 2019 Oral Reasons for Judgment on November 26, 2019; Written Reasons for Judgment released November 29, 2019 Kevin Stewart...................................................................................... counsel for the Crown Janine D’Souza...................................................... counsel for the accused Millad Saffari Reasons for Judgment on Sentence and on the Constitutionality of the Mandatory Minimum One Year Sentence in s. 172.1(2) (

a) of the Criminal Code [1] HENSCHEL J.: A. Overview and

Summary of the Facts [ 1 ] On March 1, 2019, I found Millad Saffari guilty of one count of communicating with a person who he believed to be under the age of 18 years by means of a tele​communication device for the purpose of facilitating an offence under s. 286.1(2) (obtaining sexual services of that person for consideration) contrary to s. 172.1(2) of the Criminal Code ; one count of communicating with a person who he believed to be under the age of 16 years by means of a telecommunication device for the purpose of facilitating an offence under s. 151 of the Criminal Code (sexual interference) contrary to

section 172.1(2) of the Criminal Code , and one count of communicating to obtain sexual services for consideration from a person under the age of 18 years contrary to s. 286.1(2) of the Criminal Code . [ 2 ] Both parties agreed, that for the reasons expressed by Justice Bird in R. v. Dare , an unreported decision of the Superior Court of Justice, January 3, 2019, that I should enter a conviction on count 1, communicating with a person who he believed to be under the age of 18 years by means of a telecommunication device to facilitate an offence under s. 286.1(2) and that I should stay counts 2 and 3.

I am in agreement with Justice Bird’s reasons in Dare , and accordingly counts 2 and 3 are stayed for the reasons expressed by Justice Bird at pp. 7-12. [ 3 ] The Crown proceeded by indictment and the applicant is subject to a mandatory minimum sentence of one-year jail in respect of the offence in accordance with s. 172.1(2) (

a) and a maximum penalty of 14 years. [ 4 ] Following the conviction, the matter was adjourned for sentence and on July 31, 2019 Mr. Saffari filed an application for an order declaring that the mandatory minimum sentence in s. 172.1(2) (

a) of the Criminal Code violates his rights under s. 12 of the Charter and is not saved by s.1. Mr. Saffari alleges that the mandatory minimum sentence of one year is grossly disproportionate and

seeks a declaration that s. 172.1(2) (

a) of the Criminal Code is unconstitutional and of no force or effect in this case pursuant to s. 52 of the Constitution Act . The Applicant submits that an appropriate sentence would be a six to nine-month conditional sentence or an intermittent sentence of 30 to 90 days. [ 5 ] In response, the Crown submits that the mandatory minimum one-year sentence does not violate s. 12 of the Charter . The Crown submits that having regard to appellate authority as to the appropriate range of sentence for an offence under s. 172.1(2) (

a) a sentence of one-year jail is not grossly disproportionate, even for a youthful first time offender. The respondent submits that a sentence of 12 to 15 months jail is appropriate and since the sentence meets or exceeds the mandatory minimum sentence the applicant does not meet the burden of establishing cruel and unusual punishment. [ 6 ] Despite the gravity of the offence of child luring, and the vulnerable group the provision seeks to protect, I have concluded that imposition of the mandatory minimum one year term of imprisonment required by s. 172.1(2) (a), when applied to Mr.

Saffari, a youthful first offender with mental health frailties, no prior criminal record, and who will incur significant immigration consequences; having regard to the factual circumstances of the case, is grossly disproportionate and infringes s. 12 of the Charter . The provision is not saved by s. 1 of the Charter. As a result of my finding, pursuant to s. 52(1) of the Constitution Act , the mandatory minimum sentence of one- year jail is of no force or effect in this matter. I have concluded that a sentence of five months jail to be followed by a period of probation of two years is the appropriate sentence.

On November 26, 2019 I gave reasons for judgment in court with written reasons to follow. These are my reasons. B.

Summary of the Facts [ 7 ] On January 19, 2018 Mr. Saffari responded to a backpage.com advertisement posted by the York Regional Police. The ad contained a picture of a young woman wearing a “Keswick High” T-shirt and contained the title “Young Fresh Shy n New – 18”. The description in the ad made reference to “Super new young n flexible so be gentle” and identified the posters age as 18”. [ 8 ] In the text message conversation that followed, D.C. Cook, the undercover police officer, posing as the female sex trade worker, told Mr. Saffari that “she” was only 14 years-old. Despite this, Mr.

Saffari arranged to meet the young woman at a hotel for the purpose of obtaining sexual services, including oral sex and intercourse, for $80 for half an hour. When Mr. Saffari went to the hotel room he was arrested by the police. [ 9 ] In my reasons for judgment at trial I set out the full text message conversation that occurred between D.C. Cook and Mr. Saffari between 8:20 p.m. and 8:59 p.m. What follows is the portion of the conversation that occurred after D.C. Cook introduced the topic of age, until the completion of the conversation. DC Cook: You ok if a bit younger. Some guys don’t mind. Mr.

Saffari: OKeast question u allow shower fun? Mr. Saffari: Bit younger then 18? DC Cook: Yep. Mr. Saffari: How old os tbat? Mr. Saffari: That* DC Cook: 14 turning 15 but I look older I’m told. Mr. Saffari: Pff that’s really Yonge Mr. Saffari: U sure you wanna do this? DC Cook: Yeah. I’m ok with it. Beats working at timmies Mr. Saffari: Location? DC Cook: How long do you want? Mr. Saffari: Hh (referencing half an hour). Mr. Saffari: 80 right? DC Cook $80 yeah. DC Cook: $80 yeah. DC Cook: So no surprises. 69 and protected sex that all? Mr. Saffari: Image response. (DC Cook explained that Mr.

Saffari sent an image, he could not recall for certain but believed it was an image of a penis) Mr. Saffari: Well it’s a shame ur not doing bbbj, cause im 100% clean Mr. Saffari: Still a no?

Mr. Saffari: Cause im pretty close now DC Cook: no cum in mouth? Mr. Saffari: Literaly 5 min away. Mr. Saffari: Literaly 5 min away DC Cook: where are you now? Mr. Saffari: Literaly 5 min away. DC Cook: Come to woodbine and Mr. Safari: Literaly 5 min away DC Cook: Homewood suites 50 Bodrington drive msg when in lot Mr. Saffari: Im here Mr. Saffari: I’m her DC Cook: Room 606 Mr. Saffari: Sorry phone was tripping Mr. Saffari: Omw (referring to on my way) DC Cook: Ok let me know when on lot Mr. Saffari: Okie what about on face? (D.C. Cook indicated that Mr.

Saffari was talking about ejaculating on the escorts face) DC Cook: No sorry on chest is ok Mr. Saffari: Here bby DC Cook: Ok come up DC Cook: Ok come up DC Cook: 606 Mr. Saffari: Omw DC Cook (8:59 p.m.): Great see you soon. [ 10 ] I found as a fact that while Mr.

Saffari initially may have believed that the person in the advertisement looked over 18 years old, during the conversation he came to believe that the person he was speaking with was only 14 years old and despite believing she was only 14 years old he chose to communicate with her for the purpose of obtaining sexual services and attended the hotel for that purpose. [ 11 ] Implicit in my reasons is the finding that when Mr. Saffari first responded to the advertisement he did not set out to “lure” a child or engage in illicit activities with a person under the age of 18 years old.

When using backpage.com to find escorts a person selects the adult

section of the website and then chooses escorts. Users must acknowledge that they are over the age of 18 years old. In addition, the minimum age that can be indicated in an ad for sexual services is 18 years old. C. Personal Circumstances of Mr. Saffari [ 12 ] Mr. Saffari was 23 years old at the time of the offence and is now 25 years old. He has no prior criminal record. Mr. Saffari was born in the Netherlands after his parents immigrated there from Iran and is an only child. He and his family moved to Canada in 2012 when he was 18 years old. He is currently single and has no children.

He rents a basement apartment from his grandparents which enables him to provide regular help and support to them. Mr. Saffari is close to both of his parents and his parents and extended family describe him as a law-abiding, kind, respectful, and helpful person. [ 13 ] Mr. Saffari is currently employed as a mortgage agent where he has worked since December 2018. He previously worked as a chef. Mr. Saffari has been very involved in soccer from a young age. There are no concerns in relation to alcohol or substance abuse. [ 14 ] Mr.

Saffari is a permanent resident and faces serious immigration consequences as a result of these convictions. An opinion letter prepared by an immigration lawyer was provided. Although the letter focused on the s. 286.1(2) offence, it made clear that as a result of the conviction for the offences, since the maximum punishment is ten years or more the conviction against Mr.

Saffari will result in a report which will lead to a hearing before a tribunal of the Immigration Division and the Immigration Division will order that he be deported. [ 15 ] The opinion letter further indicates that if the punishment imposed on Mr. Saffari is a term of imprisonment of six months or more there is no access by him to an appeal in equity against that deportation order. The opinion letter explains that if the potential maximum were less than ten years or if the actual sentence imposed for any specific offence is less than six months incarceration, Mr.

Saffari could appeal to the Immigration Appeal Division which is a tribunal that has jurisdiction in equity and has the authority to grant the appeal or stay of execution of the removal order. If a stay of execution of the order is granted, if Mr. Saffari conducts himself appropriately during the three or four years of the stay, a cancellation of the removal order against him would be an expected outcome.

Although the letter addresses the s. 286.1(2) offence, the reasoning is clearly equally applicable to the luring offence contrary to s. 172.1(2) . [2] [ 16 ] There is also evidence before me that the charge and prosecution of the offence has had a significant impact on Mr. Saffari. At the time of the pre-sentence report, in April 2019, Mr. Saffari’s mother expressed to the probation officer that Mr. Saffari was experiencing anxiety and was afraid of what would happen as a result of this matter. [ 17 ] Shortly prior to the date of sentencing, counsel filed a letter from Dr.

Araki, a psychiatrist at the Centre for Addiction and Mental Health, dated November 7, 2019. Dr. Araki advised that he is treating Mr. Saffari and that he is suffering from symptoms of adjustment disorder, post traumatic disorder, and panic disorder. Dr. Araki indicated that Mr. Saffari is very afraid of going to jail. No detail was provided about the extent of contact Dr. Araki has had with Mr. Safari or the information that was made available to him. Dr. Araki indicated that he is quite concerned about Mr. Saffari’s condition and whether he is able to handle any further stress related to his case.

He also indicated that Mr. Saffari is “extremely scared about the possibility of going to jail and is extremely scared of losing everything including his sanity in case of being sentenced to jail”. D. Analytical Framework – Constitutional Challenge to Mandatory Minimum Sentence [ 18 ]

Section 12 of the Charter provides that: Everyone has the right not to be subject to any cruel and unusual treatment or punishment. [ 19 ]

Section 12 balances Parliament’s aims to fashion appropriate punishments against the individual’s right not to be subject to punishment that is “grossly disproportionate”. A mandatory minimum sentence infringes s. 12 if it imposes a “grossly disproportionate sentence”. Gross disproportionality is a high standard. Sentences which are merely harsh, excessive, unfit, or disproportionate are insufficient to reach this standard. The sentence must be one that is “so excessive as to outrage the standards of decency” and that Canadians would find “abhorrent or intolerable”.

The test is not one that is “quick to invalidate sentences crafted by legislators”. The sentence must be “grossly dispro​portionate. [3] [ 20 ] Mandatory minimum sentences are susceptible to s. 12 Charter challenges because most offences under the Criminal Code can be committed in a “broad array of circumstances and by a wide range of people.” [ 21 ] The test for “gross disproportionality” requires a two-stage analysis:

(1) The court determines the appropriate sentence for the offender and determines whether the mandatory minimum represents a grossly disproportionate sentence when applied to the circumstances of the specific offender before the court. If so, then the mandatory minimum sentence violates s. 12.

(2) Second, even if the mandatory minimum does not violate s. 12 on the facts of the case, the judge must consider whether the mandatory minimum sentence would be grossly disproportionate in other reasonably foreseeable cases. This involves evaluating the scope of the offence, the nature of the offenders and circumstances that it may capture, and the resulting range of fit and proportionate sentences.

Based on this analysis, if, in a reasonably foreseeable case, imposing the mandatory minimum would result in a grossly disproportionate sentence, then the mandatory minimum violates s. 12. [4] [ 22 ] In assessing whether a sentence is grossly disproportionate for a particular offender the Supreme Court of Canada has set out relevant factors for consideration, including, the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case.

In order to have a full contextual understanding of the sentencing provision, the Court should also consider the actual effect of the punishment on the individual; the penological goals and sentencing principles upon which the sentence is fashioned; the existence of valid alternatives to the punishment imposed; and a comparison of punishments imposed for other crimes in the same jurisdiction. [5] [ 23 ] In Morrison [6] the Ontario Court of Appeal found that the mandatory minimum sentence in s. 172.1(2)(

a) of one-year jail was unconstitutional. The Court of Appeal also considered the constitutionality of the presumption regarding knowledge of age in s. 172.1(3), and the reasonable steps requirement in s. 172.1(4). The Court of Appeal upheld the conclusions of the trial judge that s. 172.1(3) was unconstitutional and that s. 172.1(4) passed constitutional muster. The Supreme Court of Canada upheld these findings, but, as a result of errors related to the

interpretation and application of the reasonable steps requirement, allowed the appeal against conviction and ordered a new trial. [ 24 ] The Supreme Court of Canada, with Justice Moldaver writing for a seven-member majority, chose not to determine the constitutionality of s. 172.1(2) (

a) and the one year mandatory minimum penalty because the courts below had proceeded on the mistaken understanding that the requisite mens rea could be established and an accused could be convicted on the basis of a failure to take reasonable steps.

As a result, the parties did not have the opportunity to make submissions on the constitutionality of the mandatory one year minimum with the benefit of a clear statement from the Court as to the mens rea required for a conviction which is a subjective mens rea (actual belief that the person was underage or wilful blindness), as opposed to simple negligence, a failure to take reasonable steps. [ 25 ] However, the Supreme Court observed that there were a number of features that caused the mandatory minimum penalty to be constitutionally suspect including that there is considerable variation in terms of the conduct and circumstances that may be caught by s. 172.1(1).

Justice Moldaver pointed to the following: •

Section 172.1(1) applies to communications that facilitate a wide range of other criminal offences that themselves have widely different minimum sentences. For example, the offence of luring may be to facilitate aggravated sexual assault of a person under 16

(273(2)(a.2), an offence with a mandatory minimum sentence of 5 years and a maximum sentence of life, or to facilitate the offence of exposing genitals to a person under 16 (s. 173(2)(a)), an offence with a mandatory minimum sentence of 90 days, and a maximum sentence of 2 years. • The offence of child luring may be directed at a person who is, or who the accused believes to be: o less than 18 years in respect of offences listed in s. 172.1(1)(a) (for example communicating for the purpose of facilitating sexual services with a person under 18) o less than 16 years in respect of offences listed in s. 172.1(1)(b) (for example sexual interference and invitation to sexual touching under ss. 151 and 152); and o less than 14 years in respect of the offence listed in s. 172.1(1)(c), abduction of a child under 14 years. • The factual circumstances supporting the offence can vary widely ranging from a single text message from a 21-year-old adult to a 15-year-old adolescent to conversations over weeks or months between a middle-aged mature adult and a 13-year-old. [ 26 ] In Morrison , the majority also identified that the discrepancy between the six month minimum sentence where the Crown proceeds summarily and the twelve month minimum sentence where the Crown proceeds by indictment is a key concern from a s. 12 perspective because if the sentencing floor embodied by the

summary conviction mandatory minimum represents a fit sentence in at least some reasonably foreseeable cases the court cannot rely on prosecutorial discretion to ensure that the higher mandatory minimum is invoked only where proceeding summarily would be inappropriate. The Supreme Court recognized that the result is that there will necessarily be some reasonably foreseeable cases in which the application of the higher mandatory minimum will be disproportionate (i.e. too severe).

By creating the lower mandatory minimum where the crown proceeds summarily “Parliament has openly acknowledged that there will be circumstances in which the application of the higher mandatory minimum will be harsher than necessary”. [7] [ 27 ] Although Justice Moldaver identified the factors above as ones that may cause the mandatory minimum sentence to be constitutionally suspect, he also emphasized that the seriousness of the offence may militate in favour of a finding of constitutionality.

Justice Moldaver stressed that the offence targets children, one of the most vulnerable groups within Canadian society, that it requires a high level of mens rea , and involves a high degree of moral blameworthiness. 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 a sexual offence or the offence of abduction.

The Supreme Court identified these as factors that militated in favour of a finding that the one-year mandatory minimum was not “grossly disproportionate”. [ 28 ] In short, while the reasoning of the majority of the Supreme Court of Canada made clear that the above factors must be considered by future courts determining constitutional challenges to s. 172.1(2) (a), the majority left the constitutionality of s. 172.1(2) (

a) unresolved. [ 29 ] Notably, in a separate concurring judgment, Justice Karakatsanis departed from the majority on the issue of the constitutionality of s. 172.1(2) (

a) and concluded that the mandatory minimum sentence of one-year custody infringed s. 12 because it is grossly disproportionate and is not saved by s. 1. Justice Abella agreed with this conclusion of Justice Karakatsanis. [ 30 ] Justice Karakatsanis reached this conclusion on the basis that: • The offence can be committed in a broad range of circumstances and by individuals with a wide range of moral culpability.

Because of the wide net cast by the provision it increases the likelihood of capturing individuals whose conduct does not warrant a sentence remotely close to the one-year mandatory minimum. • There is significant variation in the nature and gravity of the designated secondary offences and the

section captures a wide variety of communications. o The offenders may use the internet to target children for the purpose of physically exploiting them, or by individuals who have no intention of meeting their victims in person. o The duration of the communications may vary widely from a series of short messages lasting a few minutes to an extended dialogue taking place over months intended to groom a child. o The communication may be with an actual child or with an undercover police officer. o These factors may impact the level of harm caused by the offence, informing what constitutes a fit and proportionate sentence. • The personal circumstances of the offender and the relationship between the offender and the victim may also vary significantly.

The offence may be committed by persons close in age to the victim, or by those who have cognitive difficulties or mental illness, or by individuals who were previously abused themselves, factors which may decrease the moral blameworthiness of the offence. • The disparity between the mandatory minimum where the Crown proceeds by indictment, and, the mandatory minimum of 90 days (in force at the time of the offence in Morrison ).

The 90-day mandatory minimum demonstrated that Parliament understood that in certain circumstances a sentence far below that required by the one year mandatory minimum would be appropriate. The disparity between the two mandatory minimum sentences strongly suggests that s. 172.1(2) (

a) violates s. 12 of the Charter . An unconstitutional mandatory minimum cannot be saved by the fact that prosecutors have the discretion to proceed summarily. [8] [ 31 ] Justice Karakatsanis summarized her reasons for concluding that the one year minimum in s. 172.1(1)(

a) was grossly disproportionate as follows:

For these reasons, I would conclude that s. 172.1(2) (

a) violates s. 12 of the Charter . Given the broad scope and hybrid nature of the child luring provision, it encompasses situations that can vary dramatically in the moral blameworthiness of the offender and the potential harm inflicted on the victim. An examination of the scope and potential applications of the offence, as informed by lower court jurisprudence, clearly demonstrates that short periods of imprisonment – or even conditional sentences, conditional discharges, or suspended sentences – are sometimes fit and proportionate in the circumstances.

Further, during the period at issue, Parliament, itself contemplated that a 90-day period of incarceration would sometimes be appropriate for this offence. Sentencing someone to one year in jail when the fit and proportionate sentence would be 90 days or less is intolerable and would be shocking to Canadians. It is a cruel and unusual punishment and violates s. 12 of the Charter. [9] E.

Is a One Year Mandatory Minimum Sentence Grossly Disproportionate for This Accused Range of Sentence and Comparison of Punishments Imposed [ 32 ] Having regard to the two stage analysis in order to determine whether the mandatory minimum sentence of 12 months is grossly disproportionate, I must first determine what an appropriate sentence would be having regard to the nature of this offence and the circumstances of this offender, and having determined the appropriate sentence, assess whether the mandatory minimum represents a grossly disproportionate sentence. [ 33 ] In most child luring cases contrary to s. 172.1, where the Crown has proceeded by indictment the appropriate range will be between 12 to 24 months.

The Ontario Court of Appeal has determined that in most cases, due to the serious nature of the offence, the sentencing goals of denunciation and deterrence require a sentence of institutional incarceration. [10] [ 34 ] However, as noted by Justice Karakatsanis, s. 172.1(1) jurisprudence demon​strates that the fit and proportionate sentence can be less than the one year mandatory term of imprisonment.

Courts have determined that, in certain cases, a fit and proportionate sentence included lesser penalties including: a short period of incarceration of 90 days or less; a conditional sentence, or a conditional discharge.

In Hood , the Nova Scotia Court of Appeal concluded that in certain reasonably foreseeable cases, a suspended sentence would be appropriate. [11] [ 35 ] In support of the submission that a one year mandatory minimum sentence is grossly disproportionate and that a conditional sentence of 6 to 9 months should be imposed the applicant relies upon Folino [12] , a 2005 judgment of the Ontario Court of Appeal, and El-Jamel [13] a 2010 decision of the Ontario Court of Appeal The factual circumstances in Folino while similar to this case, are more serious.

The 35-year-old offender plead guilty to internet luring for the purpose of facilitating the commission of the offence of invitation to sexual touching. Over the course of one month he had six live chats over the internet and sent eight emails to an undercover police officer who he believed was a 13-year old girl. The offender engaged in sexually explicit conversations with the child, and repeatedly suggested that they should meet in private. He described in lurid detail the sexual activities he hoped to do to her and what he hoped she would do to him.

He encouraged the child to penetrate herself digitally to prepare for their meeting and sent the child a picture of himself and a penis. The offender made arrangements to meet the child and told her that he would perform various sexual acts on her, including oral sex and that she would do the same to him. The accused was arrested when he drove to the pre-arranged meeting spot. [ 36 ] The offender had no prior criminal record, was married with two young children, and was employed as a mechanical engineer.

The sentencing court accepted expert evidence that indicated that he presented a negligible risk of re-offending and had been suffering from a major depressive illness at the time of the offence. The appellant lost his job as a result of the charges.

The trial judge imposed a sentence of 9 months custody. [ 37 ] On appeal fresh evidence established that the offender was in a very fragile mental and physical state as a result of the proceedings, he had been beaten while in custody on two occasions, was very fearful of returning to jail, and that incarcerating him would have a detrimental impact upon him and upon his children. [ 38 ] The Court of Appeal concluded that the sentencing judge overemphasized the punitive sentencing objectives of denunciation and deterrence and failed to consider the restorative objectives of rehabilitation, reparation and promotion of a sense of responsibility, and imposed a conditional sentence of 18 months in place of the 9-month sentence imposed by the trial judge. [ 39 ] El-Jamel also has factual similarities to this case.

El-Jamel was a 24-year-old youthful first offender. He was sentenced to 45 days jail for possession of child pornography and a 12 month conditional sentence for internet luring to be served consecutively, followed by three years probation. Over a period of three days El-Jamel engaged in an on-line chat with an undercover police officer posing as a 12-year old girl. El-Jamel claimed to be 17 years of age. The chats were sexually explicit, and the offender masturbated in front of the web camera.

He arranged to have sexual intercourse with the 12-year-old and a three-way sexual encounter with her and a 13 year old girlfriend. He was arrested when he went to meet the girl as arranged. El-Jamel entered a guilty plea. He was married with a young child and had the support of his wife and father in law. He was engaged in counselling and therapy and was working and going to school. [ 40 ] The Crown appealed the sentence imposed.

The Ontario Court of Appeal upheld the sentence finding that deference was owed to the trial judge and that the factual circumstances were not markedly different than in Folino . [ 41 ] In Folino and El-Jamel , in imposing conditional sentences, the court made clear: • While the paramount considerations in a case involving child luring are denunciation and deterrence; rehabilitative factors must also be considered. • Conditional sentences for the offence of child luring should only be imposed in rare cases and in unusual circumstances. • The standard range of sentence for child luring offences is 12 months to two years. [ 42 ] In my view, Folino and El-Jamel are now of limited value.

They could not be decided in the same way under the current

legislative regime even in the absence of a mandatory minimum penalty. The maximum penalty for an offence contrary to s. 172.1(1), where the Crown proceeds by indictment, is now 14 years, making a conditional sentence unavailable. [14] [ 43 ] Moreover, at the time of the offence in Folino there was no minimum penalty and the maximum sentence, if the Crown proceeded summarily, was 6 months, and if the Crown proceeded by indictment the maximum penalty was 5 years. Subsequently, in 2007 the maximum sentence was increased from 6 months to 18 months for

summary conviction matters and the maximum sentence where the Crown proceeded by indictment was increased to 10 years. It was these provisions that were considered by the court in El- Jamel . [ 44 ] Subsequently, in 2012 Parliament introduced the mandatory minimum sentences, such that where the Crown proceeded summarily the minimum sentence was 90 days and where the Crown proceeded by indictment the minimum sentence was one year.

The maximum sentences remained 18 months and 10 years. [ 45 ] In 2015, Parliament increased the mandatory minimum sentence where the Crown proceeded summarily from 90 days to 6 months, and the maximum penalty from 18 months to 2 years less one day. The maximum penalty if the Crown proceeded by indictment was increased to 14 years.

The minimum penalty where the Crown proceeded by indictment remained one year. [ 46 ] In my view, the amendments introducing mandatory minimum sentences and increasing the maximum sentences reflect Parliament’s view of the gravity of the offence and these changes have an upward pull on the range of sentences that should be imposed by courts, irrespective of whether the mandatory minimums remain intact, due to the greater maximum penalty.

By creating mandatory minimum sentences, and by raising the maximum sentence to 14 years, where the Crown proceeds by indictment, Parliament made conditional sentences unavailable.

Folina and El-Jamel are of limited usefulness, beyond establishing that as a rule, the sentence imposed on convicted child lurers is generally at least 12 months to 2 years, and, in light of the subsequent legislative changes, the range may now be higher. [ 47 ] The role of the internet and digital devices in children’s lives has continued to grow as has the prevalence of internet luring cases, as evident by the significant number of child luring cases adjudicated in this jurisdiction.

The “exploitive reserve of the internet” continues to expand and serve the purposes of those who are intent on preying upon one of societies most vulnerable groups, our children”. [15] [ 48 ] For the same reason that Folina and El-Jamel are of limited assistance, cases that predate the current legislative provisions such as Read [16] , a 2008 decision of the Ontario Court of Justice in this jurisdiction which resulted in a 90-day intermittent sentence, also are of limited assistance. [ 49 ] The Ontario Court of Appeal reached a similar conclusion regarding the limited assistance of cases decided under previous versions of the legislation in Woodward , [17] which was decided following the 2007 amendments but prior to the 2012 and 2015 amendments.

In Woodward , the Ontario Court of Appeal referenced their comments in the earlier 2006 decision in Jarvis [18] , that “the decisions of trial courts that were placed before us suggest that the range of sentence for this offence generally lies between twelve months and two years”. The Court in Woodward went on to comment on the 12-month to two year range expressed in Jarvis stating as follows: Even if Jarvis did purport to set a range of 12 to 24 months for the offence of luring, the range needs to be revised given the 2007 amendment in which Parliament doubled the maximum punishment from five years to ten years.

Moreover, if it is shown through the introduction of properly tendered evidence that the offence of luring has become a pervasive social problem, I believe that much stiffer sentences, in the range of three to five years, might well be warranted to deter, denounce and separate from society adult predators who would commit this insidious crime.

One need only consider the facts of this case to appreciate the dangers and disturbing features of the crime of luring and the grave consequences that may flow from it – here, a face-to-face meeting between a 30-year old predator and a 12-year-old child, resulting in the sexual assault of the child. Fortunately, the appellant did not inflict further harm on the complainant after the sexual assault. That, perhaps, is one positive thing that can be said about him.

But the offence of luring carries very real dangers – innocent children being seduced and sexually assaulted or even worse, kidnapped, sexually abused, and possibly killed. [19] [ 50 ] Subsequently in Dragos [20] , the Court of Appeal reaffirmed their comments in Woodward , indicating that “to the extent that Jarvis may be read as establishing an appropriate range of sentence for child luring…this range needs to be revised upwards given the 2007 amendments to the Code , doubling the maximum punishment from five years to ten years”.

This was again prior to the 2015 amendments which further increased the sentences. [ 51 ] However, the facts in Woodward and Dragos were significantly more serious than the facts in this case. In Woodward , the accused communicated with a 12-year-old girl for months in a chat room and gained her trust. He convinced her to perform several sexual acts with him and that he could pay her a million dollars. He met her and had her place her hand on his penis and move it up and down, perform fellatio on him, and had vaginal intercourse with her.

He was convicted of sexual assault, sexual interference, invitation to sexual touching, and attempting to obtain, for consideration, the sexual services of a person under 18, and child-luring. He was sentenced to a total period of custody of six years, including an 18-month sentence for child-luring.

It was in this context that the Court of Appeal indicated that the range of sentences for child luring is not set at 12 months to two years. [ 52 ] The serious facts of Woodward when contrasted against the facts in this case are illustrative of the wide range of conduct captured by s. 172.1, and the varying moral blameworthiness of offenders. Dragos also involved serious facts. A 24-year-old accused communicated with a 13-year-old over the internet and arranged a clandestine meeting with the 13-year-old where they engaged in various sexual acts, short of intercourse.

The accused received a sentence of 18 months for internet luring, and four months consecutive for sexual interference, and a one-month consecutive sentence for possession of child pornography, less time served. [ 53 ] Despite the comments in Dragos and Woodward regarding the upward movement of the range of sentence for child luring, in cases where an undercover officer is posing as a child and where there are significant mitigating factors in relation to the personal

circumstances of the accused, courts have continued to accept that sentences of less than 12 to 24 months may be appropriate. [ 54 ] Such was the case in Morrison itself. Morrison posted an on-line advertisement indicating “Daddy looking for his little girl”. His ad was answered by a police officer posing as a 14-year-old girl named “Mia”. For two months Morrison engaged in sexualized online chats with Mia during which he invited Mia to touch herself sexually and proposed that Mia meet him. Morrison’s defence was that he believed that he was speaking to an adult who was engaged in role playing.

Although the trial judge was left with a reasonable doubt regarding whether Morrison believed the person he was speaking to was over 16 years old, Morrison was convicted on the basis that he had failed to take reasonable steps to ascertain that the person he was speaking with was over 16 years of age. The mens rea requirement regarding age became the central issue in the appeal. At no point did Morrison attend to meet “Mia” and he eventually ended his communications on his own.

He had no criminal record. [ 55 ] The trial judge found that absent the mandatory minimum sentence a 75-day intermittent sentence of imprisonment in addition to pre-trial custody, the equivalent of a 4-month sentence, and 1-year probation would be appropriate. The Court of Appeal upheld the trial judge’s finding that the one-year mandatory minimum sentence for child luring was unconstitutional and dismissed the appeal against the imposition of a 75-day intermittent sentence.

The matter has since been remitted back by the Supreme Court for a new trial due to the errors with respect to knowledge of age. [21] [ 56 ] In Dare , a jury convicted the offender of the same offences as those before this court, committed in similar circumstances. Justice Bird, of the Ontario Superior Court of Justice, in a 2019 decision rendered after the Court of Appeal’s decision in Morrison but prior to the Supreme Court of Canada’s decision, imposed a sentence of 90 Days imprisonment to be served intermittently to be followed by 12 months probation. [ 57 ] Mr.

Dare responded to an ad on backpage.com for the purpose of finding an escort to have sex with. He clicked on an ad that had been posted by the York Regional Police as part of the project targeting online juvenile prostitution and began texting with an undercover police officer who indicated in the text exchanges that “she” was 15 years old, “but looked a bit older” and asked Mr. Dare how old he was. Mr. Dare responded “Okay, am 22”. Approximately an hour and half later, during communications about where Mr.

Dare was and whether he was actually en route to the hotel, the officer again referenced being 15 years old. Mr. Dare attended the hotel and was arrested. [ 58 ] The central issue on the trial was whether Mr. Dare believed that the person he was speaking with was under the age of 18. Like in the present case, to access the backpage.com ad Mr. Dare selected the adult

section of the website and chose escorts. Users must acknowledge that they are over the age of 18 and the minimum age that can be indicated in an ad for sexual services is 18. The jury convicted Mr. Dare and Justice Bird found as a fact that Mr. Dare did not go into backpage.com in search of an underage escort, but concluded that when he did see the reference to the escort being 15 he was indifferent to the age and continued with his plan to meet up with the escort, committing the offences charged. Justice Bird concluded that Mr.

Dare made the arrangements and had the sexual discussions prior to knowing that the person he was meeting was 15 years old and was already in the taxi and most of the way to the hotel when he read the second text in which the undercover officer indicated that the escort was 15. Justice Bird found that “Clearly, Mr. Dare was required at that point to end his involvement in the matter rather than continuing on. His conduct from that point onwards was criminal, and it is upon that basis that he will be sentenced”. [ 59 ] In terms of his personal circumstances, Mr.

Dare was 28 years old, he had no prior criminal record, and, after coming to Canada on a student visa, achieved two college diplomas and was employed full time. He had strong support from family and friends and the offence was found to be out of character. A psychiatric report established that Mr. Dare was of low-risk to reoffend. The offences had a devastating impact on Mr. Dare. His father disowned him and, because he was in Canada on a work permit, he would likely be deported as a result of the conviction.

Justice Bird concluded that the immigration consequences seemed disproportionate to his moral blameworthiness and otherwise admirable character, and this was a factor that could be taken into account in determining the appropriate sentence. [ 60 ] Justice Bird, concluding that Mr.

Dare’s situation was more like the facts in Morrison than the facts of Woodward , and after balancing the aggravating and mitigating factors imposed a 90-day intermittent sentence. [ 61 ] In King [22] , a decision post-dating the Supreme Court of Canada’s decision in Morrison , Justice Block found the six-month mandatory minimum sentence for an offence under 172.1(2)(

b) where the Crown proceeded summarily was grossly disproportionate violating s. 12 of the Charter , was not saved by s. 1, and as a result was of no force and effect. Justice Block imposed a one year conditional sentence and probation, a sentence that was available because the Crown proceeded summarily. [ 62 ] In King , an undercover police officer posed as a 15-year-old high school student named “Cara” in an online chat room. Mr. King contacted “Cara” and communicated with her for several months. Mr.

King instructed “Cara” about masturbation and asked to meet for sexual intercourse on several occasions. “Cara” subsequently disclosed that she was only 14. After this disclosure, Mr. King arranged to meet “Cara” to have sexual intercourse and was arrested by the police. [ 63 ] Justice Block found that the mitigating circumstances were profound. Mr. King was 52 years old and had no prior criminal record. He was married and had been consistently employed. There was evidence that as a child he had been a victim of physical, sexual, and emotional abuse. He entered a guilty plea and pursued counselling.

A psychiatric report assessed Mr. King as low risk for reoffence. [ 64 ] In Hems [23] , Justice Bliss also found the six-month mandatory minimum sentence for child luring, where the Crown proceeded summarily to be unconstitutional. The 22-year-old cognitively delayed accused had engaged in communications with an eleven-year-old over a gaming system, sent her explicit photos of himself, and invited her to engage in sexual touching. The police were contacted when the child’s parents located the communications.

Justice Bliss found that the six-month mandatory minimum violated s. 12 based on a reasonable hypothetical involving an accused who is isolated due to cognitive challenges or intellectual impairments and uses the internet to engage in sexually explicit conversations with a teenager under 16. Ultimately, Justice Bliss imposed a 6-month sentence on the child luring offence, and 2 months consecutive for possession of child pornography. The sentence was reduced by 3 months as credit for time served and restrictive bail conditions. The offender was placed on probation for three years.

[ 65 ] In Haniffa [24] , a case with similar factual circumstances to this case, the accused responded to a backpage.com ad and communicated with an undercover police officer posing as a 15-year-old in order to obtain sexual services for consideration. Mr. Haniffa was arrested when he attended at the hotel. Mr. Haniffa had no prior criminal record and a good history of employment. He was convicted after a trial. Prior to sentencing he engaged in counselling in respect of his conduct related to the offences.

He expressed his remorse in a written statement to the court. [ 66 ] Haniffa was decided while the Morrison decision was before the Supreme Court of Canada, as a result the Ontario Court of Appeal determination that the mandatory minimum was unconstitutional had not yet been set aside. [ 67 ] In imposing a sentence of 12 months custody on the luring offence Justice Kenkel carefully reviewed the sentences imposed by several courts post-trial for similar offences. [25] Those courts imposed sentences in the range of 9 to 14 months.

Justice Kenkel also noted that many “project Raphael” cases, involving factual scenarios similar to the facts in Haniffa and in this case, resolved by way of guilty pleas to sentences in the intermittent range. Justice Kenkel concluded that the fact that such an intermittent sentence on a joint submission was fit did “little to assist Mr.

Haniffa’s request for a similar sentence where the limiting factor of a guilty plea, which had significant implications to the overall administration of justice, was not present”. [26] [ 68 ] While I do not disagree that a guilty plea at an early stage is an important mitigating factor, it is nonetheless evident that courts have imposed sentences far lower than the mandatory minimum sentence of 12 months for the same conduct. [ 69 ] In discussing the relevant sentencing principles in Haniffa Justice Kenkel emphasized: • The gravity of offences involving the abuse or potential abuse of a child and the serious problem of child prostitution in York Region. • That the moral blameworthiness of the offender is not diminished by the fact that fortunately it was a police officer and not a child that answered the hotel room door. • Denunciation and deterrence are the paramount considerations of sentencing in cases involving the abuse or potential abuse of a child. • Sentences for luring offences typically range from 12 to 24-months imprisonment, and that in cases with more aggravating features, the Court of Appeal has stated that the overall range may need to be adjusted upwards.

Older cases discussing sentencing before the maximum sentence for luring was increased to 14 years and before Parliament signalled the gravity of the offence by imposing minimum sentences are now of limited assistance. [ 70 ] In Parks [27] , Justice West considered a constitutional challenge to the mandatory one-year sentence for child luring. The 57- year-old accused who had no prior criminal record communicated with an undercover police officer who he believed was the mother of a young child.

He encouraged the mother to make her child available to him for sexual purposes and was arrested when he attended to meet with the child to carry out the sexual contact. The conduct extended over 24 days with over 200 texts and 30 emails detailing sexual activities involving Sara’s daughter. The emails and texts involved graphic, disturbing, and very detailed descriptions of sexual acts involving an 11-year-old girl. Mr. Parks was prepared to target a vulnerable child in abhorrent, repugnant sexual activities including sexual intercourse, anal intercourse, fellatio and cunnilingus.

Justice West, at para. 62, identified a number of other cases that emphasized denunciation and deterrence and required custodial sentences in excess of or equal to the 12-month mandatory minimum sentence. Justice West concluded that a sentence of 18 months which exceeded the mandatory minimum was warranted, and as a result declined to consider the constitutionality of the provision. Application to the Facts in This Case [ 71 ] Arriving at a just and appropriate sentence requires the balancing of several competing interests.

The gravity of the offence, the offender’s degree of responsibility, the specific circumstances of the case and the circumstances of the offender must all be considered. [ 72 ]

Section 718 of the Criminal Code provides that the "fundamental purpose" of sentencing is to contribute to "respect for the law and the maintenance of a just, peaceful and safe society" by imposing "just sanctions" that have one or more of the following objectives, namely: (

a) to denounce unlawful conduct; (

b) to deter the offender and others from committing offences; (

c) to separate offenders from society where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community. [ 73 ] According to s. 718.1 of the Criminal Code , the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender”. [ 74 ]

Section 718.2 of the Criminal Code dictates that, in imposing sentence, the court must also take into account a number of principles including the following:

(

a) A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender; (

b) A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; (

c) Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

d) An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and, (

e) All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. Gravity of the Offence [ 75 ] As the Supreme Court noted in Morrison there is “considerable variation in terms of the conduct and circumstances that may be caught by s. 172.1(1)”. [28] While child luring is always a serious offence, this case involves conduct that is at the lower end of the spectrum in terms of seriousness. Although at the lower end of the spectrum, the conduct was nonetheless very serious.

Section 172.1 of the Code protects children on the internet by criminalizing conduct that creates a real, viable risk of online child exploitation. Mr. Saffari by his actions risked sexually exploiting a person under the age of 18 years, a child. Given the prevalence of underage prostitution, Mr. Saffari could equally have been communicating with an actual 14-year-old. [ 76 ] I concluded that on the day of the offence when the applicant responded to the backpages.com advertisement he did not “set out” to lure a child for the purposes of sexual contact.

However, after he was told by “Michelle” that she was only 14 years old, he persisted to negotiate sexual services with her believing her to be a 14-year-old child. He sent multiple sexually explicit text messages to a person he believed was 14 years old including urging her to give him a blow job without protection and asking if he could ejaculate on her face. Moreover, Mr. Saffari acted on his agreement to have sexual intercourse and oral sex with a person he believed was only 14 years old by attending at the hotel room where he was arrested.

These are important aggravating factors. [ 77 ] While the facts are serious, the seriousness of the facts can be contrasted with more egregious factual scenarios, such as the facts in Woodward and Dragos , examples of circumstances where an older adult sets out to lure a young child for the purpose of engaging in sexual contact with them and communicates with them repeatedly over weeks or months in furtherance of that purpose and in the repeated communications sends sexual videos or images, leading to contact with an actual child.

In this case the text messages occurred on a single occasion for approximately 40 minutes and fortunately lead to no actual harm to a child. Circumstances of the Offender [ 78 ] In my view Mr. Saffari’s personal circumstances are exceptionally mitigating. • He is a youthful first-time offender.

He was only 23 at the time of the offence and has no prior criminal record. • He has complied with the conditions of his release. • He has otherwise been a law-abiding and productive member of the community. • He has meaningful relationships with family members and friends and maintains employment. • He has been significantly impacted by the charges including suffering from anxiety. He is very fearful of going to jail and is suffering symptoms of adjustment disorder, post traumatic disorder, and panic disorder. [ 79 ] Significantly, Mr.

Saffari may be subject to deportation as a collateral consequence of his conviction and sentence. A sentence of six months or greater will result in his being denied an appeal of a removal order. The immigration consequences of the conviction seem disproportionate to his moral blameworthiness and otherwise good character. [ 80 ] A sentencing judge may take collateral immigration consequences into account, provided that the sentence ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.

The immigration consequences are one relevant factor to consider in determining an appropriate sentence for Mr. Saffari together with all of the circumstances of the offence and the offender.

I recognize that a court cannot impose inappropriate and artificial sentences in order to avoid collateral immigration consequences and immigration consequences must not be allowed to dominate the sentencing exercise or skew the process either in favour of or against deportation. [29] [ 81 ] In many of the cases where a sentence of less 12 months has been imposed, an important mitigating factor was the admission of responsibility and plea of guilt. While it is not an aggravating factor that Mr.

Saffari was convicted following a trial, he does not enjoy the mitigating effect of a guilty plea and he has not accepted responsibility for the offence. [ 82 ] In addition, many offenders sentenced to a sentence at the low end of the range have undergone treatment directly related to the offending behaviour. Although Mr. Safari is now receiving treatment for a number of mental health related concerns, there is no evidence that he has undergone any offence specific treatment.

However, his current mental status is relevant to the impact that custody will have upon him and I am satisfied that the impact of custody on Mr. Saffari will be significant. [ 83 ] Finally, in many of the cases where a lesser sentence was imposed expert opinion evidence indicating that the offender is a low risk to reoffend is before the court. Although I have no psychiatric risk assessment evidence in this case, having regard to the circumstances of the offence, there is no evidence that would suggest that Mr.

Saffari poses an ongoing risk for re-offence, and having regard to all of the circumstances I am prepared to treat him as being at a low risk for re-offence.

F.

Conclusion [ 84 ] In my view, having regard to the relevant sentencing principles, the circumstances of the offence and of the offender, including the relevant aggravating and mitigating factors, and the range of sentence for the offence, in the absence of a mandatory minimum sentence, a sentence of five months jail followed by two years probation would be an appropriate and fit sentence in this case. [ 85 ] For the reasons expressed by Justice Kenkel in Haniffa in terms of the gravity of the offence and the paramountcy of denunciation and deterrence, I am not satisfied that a sentence in the intermittent range as proposed by Mr.

Saffari is appropriate and a conditional sentence is not available in law, nor is it appropriate. [30] However, in my view having regard to the exceptional personal circumstances of Mr. Saffari the case can be distinguished from the circumstances in Haniffa and justify a sentence lower than that imposed in Haniffa . [ 86 ] I have concluded that there are exceptional personal circumstances that support a finding that a fit sentence is one of 5 months.

In my view a sentence in the intermittent range would not reflect the gravity of the offence nor give sufficient weight to the principles of denunciation and deterrence. It would be too far a departure from the general range of sentence for this offence, and inconsistent with sentences imposed on similarly situated offenders. [ 87 ] In my view, the facts in this case are more serious than the facts that were before Justice Bird in Dare . Justice Bird concluded that it was not until the offender was already en route to the hotel that he realised the person he was speaking with was under 18 years of age. Mr.

Saffari believed that the person he was speaking with was 14 years old at a much earlier stage, engaged in explicit conversations with that individual, and chose to proceed with the sexual encounter. [ 88 ] Having determined that a five-month sentence would be an appropriate and fit sentence in the circumstances of this case, when I compare the five-month sentence to the mandatory minimum sentence of one year I find that the mandatory minimum sentence is grossly disproportionate when applied to the circumstances of this offender and infringes s. 12 of the Charter . • The mandatory minimum sentence is more than twice what I have found an appropriate and fit sentence to be. • This is a case where the Crown conceded that it would not have been inappropriate to proceed summarily.

The disparity between the mandatory minimum sentences, six-months had the Crown proceeded summarily, and 12-months upon indictment, strongly suggests that s. 172.1(2) (

a) violates s. 12 of the Charter . • As an additional factor the impact of the imposition of the mandatory minimum sentence is particularly harsh in Mr. Saffari’s case because the imposition of a 12-month sentence will deny Mr. Saffari an appeal of a removal order which will result in his deportation from Canada. • The observations of the Supreme Court of Canada in Morrison that s. 172.1(2) (

a) is constitutionally suspect because it applies to a broad range of conduct with widely varying degrees of moral blameworthiness support my conclusion in this case because I find that the nature of the offence committed by Mr. Saffari and his personal circumstances place him at the lower end of the spectrum in terms of seriousness of the offence. [ 89 ] In my view, this case is an example of where the concern expressed by the Supreme Court of Canada about the potential differential sentence to be imposed as a result of the Crown election has been manifested. Mr.

Stewart candidly agreed that the Crown in factually similar circumstances has proceeded summarily and that this is a case where having regard to the circumstances of the offender and the offence, it would not have been inappropriate to proceed summarily. Had the Crown proceeded summarily, the mandatory minimum sentence would be six months, instead of 12. [ 90 ] In my view, sentencing Mr. Saffari to one year in jail when the fit and proportionate sentence would be five months, having regard to his personal circumstances, frailties, and the collateral consequences, is intolerable and would be shocking to Canadians.

In my view to impose the one-year mandatory minimum sentence, even having regard to the gravity of the offence, is grossly disproportionate. It is not merely excessive but is a sentence that is “so excessive as to outrage the standards of decency” and “abhorrent or intolerable” to society. It is a cruel and unusual punishment and violates s. 12 of the Charter . [31] [ 91 ] In Morrison , at para. 188, Justice Karakatsanis observed that “it is difficult to imagine how a mandatory minimum sentence which is found to be grossly dispro​portionate… could represent a justifiable infringement of s. 1 of the Charter ”.

The Crown does not seek to justify the infringement under s. 1. [ 92 ] Given my conclusion that the mandatory minimum violates s. 12 on the facts of the case, I need not consider whether the mandatory minimum sentence would be grossly disproportionate in other reasonably foreseeable cases. [ 93 ] As a result, I am granting the application for an order pursuant to s. 12 of the Charter declaring that s. 172.1(2) (

a) constitutes cruel and unusual punishment and the mandatory minimum sentence is therefore of no force or effect in this matter under

section 52 of the Constitution Act . [ 94 ] Having struck down the mandatory minimum sentence that was applicable to Mr. Saffari, in my view I am not bound by the

summary conviction mandatory minimum and I sentence Mr. Saffari as follows: [32] [ 95 ] On count 1, to a sentence of five months jail to be followed by a period of probation of two years. The conditions of the probation are that you are:

(1) To keep the peace and be of good behaviour

(2) Appear before the court as required to do so.

(3) Notify your probation officer in advance of any change of name or address or employment status.

(4) Report to probation within five business days of your release from custody and thereafter as required by the probation officer.

(5) Reside at an address approved of by probation.

(6) Take counselling with respect to sexual offences against children as directed by your probation officer and sign any releasesnecessary to permit the probation officer to monitor your attendance and completion of counselling.

(7) You shall not access any internet dating site or site that includes advertisements for escorts or prostitution.

(8) Not to attend any hotel, motel, or inn, or Airbnb or similar rental accommodation except for the purposes of employment with24-hour prior notification in advance to your probation officer or for family purposes when in the direct company of your parents.

(9) You shall not seek, obtain, or continue with any paid or unpaid activity or employment that involves being in the position oftrust or authority towards persons under the age of 16 years.

(10) You are not to have any contact—including communication by any means—with a person who is under the age of 16 yearsexcept for in the presence of another person 21 years of age or older and except with the prior written approval provided in advance bythe probation officer for contact with family members. [96] Given the time you have spent on bail with conditions akin to the those governed by a s. 161 order and the circumstances ofthese offences, I find including the above conditions in the probation order is sufficient and do not find it necessary to make a further s.161 order. [97] A SOIRA Order is imposed for 20 years, pursuant to s. 490.013(2). [98] The offence is a primary designated offence, and Mr.

Saffari is required to provide a sample of his DNA for registration on thenational databank. Released: November 29, 2019 Signed: Justice Marcella Henschel [29] R. v. Pham, [2012] S.C.R. 739, at para. 11. When assessing the proportionality of a mandatory punishment under s. 12 of theCharter, the court must consider not only the punishment on its face, but also the “effects” of that punishment on the offender whichincludes the “collateral consequences” of the sentence given that such consequences are relevant to the offender’s personalcircumstances. Hems, at para. 72, citing R. v.

Boudreault, 2018 SCC 58 , [2018] S.C.J. No. 58, at paras. 39, 43-44.