



WARNING

The President of the panel
    hearing this appeal directs that the following should be attached to the file:

An order restricting
    publication in this proceeding under ss. 486.5(1), (2), (2.1), (3), (4), (5),
    (6), (7), (8) or (9) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These sections of the
Criminal Code
provide:

486.5 (1)     Unless an order is made
    under section 486.4, on application of the prosecutor in respect of a victim or
    a witness, or on application of a victim or a witness, a judge or justice may
    make an order directing that any information that could identify the victim or
    witness shall not be published in any document or broadcast or transmitted in any
    way if the judge or justice is of the opinion that the order is in the interest
    of the proper administration of justice.

(2)     On application of the prosecutor
    in respect of a justice system participant who is involved in proceedings in
    respect of an offence referred to in subsection (2.1), or on application of
    such a justice system participant, a judge or justice may make an order
    directing that any information that could identify the justice system
    participant shall not be published in any document or broadcast or transmitted
    in any way if the judge or justice is satisfied that the order is in the
    interest of the proper administration of justice.

(2.1) The offences for the purposes of
    subsection (2) are

(a) an offence under section 423.1,
    467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the
    benefit of, at the direction of, or in association with, a criminal
    organization;

(b) a terrorism offence;

(c) an offence under subsection 16(1)
    or (2), 17(1), 19(1), 20(1) or 22(1) of the
Security of Information Act
;
    or

(d) an offence under subsection 21(1)
    or section 23 of the
Security of Information Act
that is committed in
    relation to an offence referred to in paragraph (c).

(3)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice if it is not the purpose of the disclosure to make
    the information known in the community.

(4)     An applicant for an order shall

(a) apply in writing to the presiding
    judge or justice or, if the judge or justice has not been determined, to a
    judge of a superior court of criminal jurisdiction in the judicial district
    where the proceedings will take place; and

(b) provide notice of the application
    to the prosecutor, the accused and any other person affected by the order that
    the judge or justice specifies.

(5)     An applicant for an order shall
    set out the grounds on which the applicant relies to establish that the order
    is necessary for the proper administration of justice.

(6)     The judge or justice may hold a
    hearing to determine whether an order should be made, and the hearing may be in
    private.

(7)     In determining whether to make
    an order, the judge or justice shall consider

(a) the right to a fair and public
    hearing;

(b) whether there is a real and
    substantial risk that the victim, witness or justice system participant would
    suffer harm if their identity were disclosed;

(c) whether the victim, witness or
    justice system participant needs the order for their security or to protect
    them from intimidation or retaliation;

(d) societys interest in encouraging
    the reporting of offences and the participation of victims, witnesses and
    justice system participants in the criminal justice process;

(e) whether effective alternatives are
    available to protect the identity of the victim, witness or justice system
    participant;

(f) the salutary and deleterious
    effects of the proposed order;

(g) the impact of the proposed order on
    the freedom of expression of those affected by it; and

(h) any other factor that the judge or
    justice considers relevant.

(8)     An order may be subject to any
    conditions that the judge or justice thinks fit.

(9)     Unless the judge or justice
    refuses to make an order, no person shall publish in any document or broadcast
    or transmit in any way

(a) the contents of an application;

(b) any evidence taken, information
    given or submissions made at a hearing under subsection (6); or

(c) any other information that could
    identify the person to whom the application relates as a victim, witness or justice
    system participant in the proceedings.
2005, c.
    32, s. 15; 2015, c. 13, s. 19

486.6 (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.

(2)     For greater certainty, an order referred to in
    subsection (1) applies to prohibit, in relation to proceedings taken against
    any person who fails to comply with the order, the publication in any document
    or the broadcasting or transmission in any way of information that could
    identify a victim, witness or justice system participant whose identity is
    protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. A.H., 2018 ONCA 677

DATE: 20180803

DOCKET: C62348

Feldman, Paciocco and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

A. H.

Appellant

Andrew Bigioni, for the appellant

Rebecca DeFilippis, for the respondent

Heard: February 7, 2018

On appeal from the conviction entered on June 6, 2016 by
    Justice Thomas A. Bielby of the Superior Court of Justice, sitting without a
    jury, with reasons reported at 2016 ONSC 3709, and the sentence imposed on
    October 13, 2016, with reasons reported at
2016 ONSC 6364
.

Feldman JA.:

Introduction

[1]

The appellant was convicted of child luring under s. 172.1(1)(b) of the
Criminal
    Code
. The indictment charged that the appellant believed the complainant
    was under 16 years of age. The complainant was a 15 year old friend of the
    appellants twin daughters.

[2]

The main issue on the appeal is whether the trial judge erred in law in
    finding that the Crown proved beyond a reasonable doubt that the appellant
    subjectively believed that the complainant was under 16 years old and therefore
    had the
mens rea
to commit the offence as charged. Specifically, the
    appellant argues that it was unreasonable for the trial judge to have convicted
    him based on the finding that the accused would have known the complainants
    approximate age, and further, that there was insufficient evidence to support
    a finding that the appellant had the subjective belief that the complainant was
    under 16.

[3]

The appellant also argues that: the trial judge failed to provide the
    appellant, a self-represent accused, sufficient assistance, and that he erred
    in dismissing the appellants s. 8
Charter
application. The appellant
    also seeks leave to appeal his sentence, on the basis that it was unfit because
    the sentence was influenced by a mandatory minimum provision that has since
    been struck down as unconstitutional.

Background facts

[4]

The appellant is the father of twin daughters who were friends of the complainant,
    a girl they went to school with. The complainant turned 16 on October 24, 2013.
    Between August 23, 2013 and October 20, 2013, when she was 15, Facebook
    messages were sent from the appellants Facebook account to the complainants
    account, including:

1)

on August 28, 2013, a
    picture of a penis was sent, along with the message: Hey, send me your email
    address. I want to send you some pics;

2)

on August 30, 2013, a
    different picture of a penis was sent, with the message: I swear by the moon
    and the stars in the sky. I want to suck your pussy n boobs n I want you to
    suck me dickthen me take your virginity..

3)

on September 26, a
    message was sent that said: u want to suck me dicklolI want to suck your
    pussy and boobs;

4)

also on September 26,
    ten minutes later, a third picture of a penis was sent;

5)

on October 20, a
    fourth picture of a penis was sent, together with the following message: satisfaction
    guaranteedwith life time warranty what us see is what u get take it in your
    mouth and suck it babes. I gon suck your sweet pussy n lovely boobs; and

6)

also on October 20, around
    2 hours later, a picture of a man and a woman in a sexual position was sent
    with the message: u still a virgin.

[5]

The complainant, S.K., testified that she met the appellant at the
    mosque when she was 14 and in grade 8. The appellants twin daughters, Aa. H.
    and Ai. H., are one year younger than S.K., born on September 25, 1998. The
    appellant would often pick up the three girls at school, take them out for
    lunch, and drop them back at school. Occasionally, he would take them to the
    mall. The complainant described the appellant as really good friends with her
    uncle. She testified that the appellant knew the complainants father as well;
    they attended the same mosque and, at one time, the two families lived in the
    same building for a period spanning three years.

[6]

Both of the appellants daughters testified. Aa. H. said that she met S.K.
    in grade 9 and they became close friends. She also testified that the appellant
    had initially met S.K. at the mosque. With respect to what the appellant knew
    about S.K.s age, she gave the following testimony:

Q. Okay. And [S.K.], you said shes a little older than you?

A. Yeah.

Q. Do you know how much older?

A. One year.

Q. Did you tell your dad that she was older than you?

A. He knows. He, he was friends with her dad, so they talk.

Q. Okay. So you believe him to know her age because of her dad
    and him being friends?

A. Yeah.



Q. Did you ever tell him what grade she was in?

A. Yeah.

Q. And what grade were you in when you told him what grade she
    was in?

A. Well, when she first came to the school, hes like, Oh,
    really, what grade is she is, and then Im like, She in grade 10, and Im in
    grade 9, so, yeah.

Q. And I understand it, in grade 9, you were 14?

A. Yeah.

[7]

Ai. H. said that S.K. was a year older than she was and a grade ahead of
    her. She confirmed that their fathers knew one another through their mosque and
    that the appellant sometimes took her, her sister, and S.K. all to lunch. She
    also testified that she told her father that she and S.K. were in two classes
    together.

[8]

The appellant was charged with two offences: sending the messages to a
    person he believed was under 16, i) for the purpose of exposing his genitals
    for a sexual purpose to a person under 16, and ii) for a sexual purpose
    inviting a person under 16 to touch his body. He represented himself, except
    that
amicus
was appointed to cross-examine both of the appellants
    twin daughters and the complainant, S.K. The appellant did not testify at the
    trial.

Findings by the trial judge

[9]

The main issue at the trial involved two aspects of identity. As the first
    count charged the appellant with sending a picture of his penis to the
    complainant, the Crown was required to prove that the penis in the pictures was
    the appellants. In the end, the trial judge was not satisfied of that fact beyond
    a reasonable doubt and entered an acquittal on that count.

[10]

The
    second aspect, which related to both counts, was the identity of the sender of
    the Facebook messages. The witnesses testified that the appellant went by a
    nickname reflected in the email address under which the Facebook account that
    sent the messages was registered, but in submissions, the appellant denied it
    was him. The trial judge was satisfied beyond a reasonable doubt that the appellant
    had sent the messages based on his finding that the email address associated
    with the Facebook account that sent the messages was the appellants
.

[11]

On
    the other elements of the offence of child luring, the trial judge found that
    the messages constituted an invitation to sexual touching. On the issue of the
    complainants age he stated at para. 219 of his reasons:

In regards to S.K.s age, the
    accused would have known her approximate age. He had met her a few years
    previously at the mosque where both families attended. S.K.s father was a
    friend of the accused and S.K. had been in the presence of the accused when she
    was with his daughters.

Issues on the appeal

[12]

The
    appellant raises four issues on the appeal:

1)

The verdict is
    unreasonable because the trial judge convicted the appellant by finding that he
    would have known the complainants approximate age, rather than that he
    believed the complainant was under 16, and there was no evidence that the
    appellant had the subjective belief that the complainant was under 16;

2)

The trial judge
    erred by failing to provide sufficient assistance to the appellant with his
Charter
challenges as a self-represented accused;

3)

The trial judge
    erred in dismissing the appellants
Charter
application to exclude the
    evidence found at his home, the photo of his computer screen and his
    cell-phone; and

4)

The sentence of
    15 months incarceration was influenced by the mandatory minimum of 1 year
    imposed by s. 172.1(2)(a), which has since been struck down as contrary to s.
    12 by this court in
R. v. Morrison
, 2017 ONCA 582, 136 O.R. (3d) 545,
    leave to appeal allowed, [2017] S.C.C.A. No. 290, decision reserved by the Supreme
    Court on May 24, 2018.

Issue 1: Is the
    verdict unreasonable because there was no evidence that the appellant believed
    that the complainant was under 16?

[13]

Section
    172.1(1)(b) of the
Code
provides:

Every person commits an offence who transmits, makes
    available, distributes or sells sexually explicit material to



(b) a person who is, or who the accused believes
    is, under the age of 16 years, for the purpose of facilitating the commission
    of an offence under section 151 or 152, subsection 160(3) or 173(2) or section
    271, 272, 273 or 280 with respect to that person;

[14]

The
    wording makes it an offence to communicate sexually explicit material to a
    person who is actually under 16, or to a person whom the accused believes to be
    under 16 years, even if the person is not. This latter form of the offence allows
    the police to communicate with a suspected perpetrator by pretending to be
    under 16 in order to confirm that perpetrator is engaged in child luring.

[15]

In
    this case, the complainant was actually under 16 at the time the Facebook
    messages were sent by the appellants device and received by the complainants
    Facebook account.
[1]
However, the appellant was charged with communicating with a person whom he
    believed was under 16, and therefore, the Crown was required to prove that
    subjective belief.

[16]

At
    the time of the trial, s. 172.1(3) of the
Code
provided that where the
    complainant was represented to the accused as being under 16, then in the
    absence of evidence to the contrary, that constituted proof of the accuseds
    belief. That section has since been declared unconstitutional by this court in
R.
    v. Morrison
. Although Crown counsel at trial mentioned subsection (3), she
    did not rely on it, nor did the trial judge refer to it in his reasons.

[17]

In
    his reasons for judgment, the trial judge set out the three essential elements
    of the offence as charged: 1) an intentional communication by computer or
    electronic device; 2) the communication was with a person the accused believed
    to be under 16; and 3) the purpose of the communication was for sexual
    touching. The Crowns submission with respect to proving the second element,
    which the trial judge summarized at para. 175 of his reasons, was that the
    appellant would have known S.K.s age because she was a friend of his daughters
    who was a year older than them. He had met her at the mosque when she was 14
    and the appellants family were friends with S.K.s family.

[18]

At
    para. 176, the trial judge also referred to the Crowns submission with respect
    to s. 172.1(4). That section provides:

It is not a defence to a charge under paragraph (1)(a), (b) or
    (c) that the accused believed that the person referred to in that paragraph was
    at least 18, 16 or 14 years of age, as the case may be, unless the accused took
    reasonable steps to ascertain the age of the person.

[19]

Crown
    counsel at trial submitted that there was no evidence that the appellant took
    any reasonable steps to ascertain the complainants age. Again, while that
    submission was made, the trial judge did not refer to it or to s. 172.1(4) in
    his findings regarding the appellants belief in the age of the complainant.

[20]

As
    the appellant did not raise the defence that he believed the complainant was 16
    or over, there is an issue whether s. 172.1(4) is applicable, and whether the
    Crown may use the failure to make reasonable inquiries to prove an accuseds
    belief that a complainant is under 16. That issue may also be determined by the
    Supreme Court in its decision in
R. v. Morrison
, currently under
    reserve in that court. As the trial judge did not use the appellants failure
    to make reasonable inquiries as a basis for finding he believed the complainant
    was under 16, there is no need to deal with the issue of the proper
    interpretation and application of s. 172.1(4) in this case.

[21]

The
    test for unreasonable verdict from
R. v. Biniaris
, 2000 SCC 15, [2000]
    1 S.C.R. 381, at para. 36, is whether the verdict was one that a properly
    instructed jury, acting judicially could reasonably have rendered. The
    reviewing court is entitled to re-examine and reweigh the evidence.

[22]

As
    quoted above, in his reasons, the trial judge found that the appellant would
    have known [S.K.s] approximate age. The appellant submits that by reducing an
    essential element of the offence to an approximation, the trial judge reached
    an unreasonable verdict. I agree that had the trial judge found that the
    appellant believed that S.K. was around the age of 16, that would have been
    an error in law. The appellant had to believe she was under 16. However, it is
    clear from the reasons, read as a whole, that the trial judge found that the
    appellant believed the complaint to be under 16.

[23]

The
    trial judges reference to her approximate age must be read in context. By
    correctly reviewing the elements of the offence, the trial judge demonstrated
    that he knew that in order to convict the appellant, the Crown had to prove beyond
    a reasonable doubt that the appellant believed the complainant was under 16
    years of age. While the trial judge found that the appellant did not know the
    complainants exact age  only her approximate age  the Crown was not
    required to prove that the appellant knew the complainants exact age. Read
    contextually, the reasons demonstrate that the trial judge was satisfied that,
    although the appellant did not know the complainants exact age, he believed
    that she was under the age of sixteen years. The trial judges meaning is reinforced
    by the language he used in referring to the
mens rea

component
    in his subsequent reasons on sentence, where he stated at para. 5: The
    Offender was aware that, at the time, the complainant was only 15 years old.

[24]

In
    my view, based on the trial record, in particular the evidence of the
    complainant and of the appellants daughters, the trial judge was entitled to
    find that the appellant believed that the complainant S.K. was under the age of
    16. There was ample evidence to support that conclusion. The appellant was very
    involved with his twin daughters, who were 14 at the time of the offence. He
    had a lot of contact with S.K.s family. He knew them from the mosque, from
    living in the same building for a number of years, and he knew her father and
    was a very good friend of her uncle. He also had a lot of contact with S.K.
    herself by picking her up and taking her for lunch with his daughters. The
    appellants daughter, Aa. H., testified that her father asked her what grade S.K.
    was in when she came to his daughters school, and she told him grade 10. At
    that time, the twins were in grade 9 and they were 14. The appellants other
    daughter, Ai. H., similarly testified that she told her father that she and
    S.K. were in two classes together around this time.

[25]

From
    all of this evidence, the trial judge was entitled to conclude that the
    appellant would have known S.K.s approximate age, and that he believed she was
    under 16. The verdict is not unreasonable.

[26]

I
    would not give effect to this ground of appeal.

Issue 2: Did
    the trial judge err by failing to give the appellant sufficient assistance with
    his
Charter
issues?

[27]

The
    appellant submits that the trial judge erred by failing to raise and address a
    breach of s. 10(b) of the
Charter
, and by failing to give the
    appellant sufficient assistance with his s. 8 motion to exclude the evidence
    seized from his dwelling.

[28]

The
    appellant was arrested at the door of his apartment. He told the officers he
    needed to get his shoes, turned around and went back into the apartment. The
    officers followed him in. One accompanied him into his bedroom while the other
    stayed in the kitchen where he observed the open computer and the cell phone.
    He took a photograph of the screen of the computer, which showed an open
    Facebook page, which displayed the appellants email address and read: Your
    account has been deactivated. The officer then seized both items.

[29]

Once
    the officers and the appellant were seated in the police cruiser, one of the
    officers read the appellant his right to counsel. This was six minutes after
    the initial arrest.

[30]

The
    appellant submits on appeal that that delay constituted a breach of his s.
    10(b) right, to be informed of his right to counsel without delay, and that the
    trial judge erred by failing to raise and address the issue. The Crown argues
    that there was no air of reality to a s. 10(b) breach based on all the
    evidence, and that the trial judge made no error in failing to address it.

[31]

I
    would not give effect to the appellants argument on this ground. A trial
    judges duty to assist a self-represented accused is circumscribed by a
    standard of reasonableness and this duty is not engaged on the mere scent or
    intimation of a possible
Charter
infringement:
R. v. Richards
,
    2017 ONCA 424, 349 C.C.C. (3d) 284, at paras. 111 and 113. Therefore, while a
    trial judge has a duty to assist a self-represented accused, including raising
    legal issues that should be addressed, a trial judge is not required to raise
    and knock down issues that do not have an arguable chance of success to benefit
    the accused.

[32]

A
voir dire
was held to address the s. 8
Charter
issue where
    facts relevant to the right to counsel issue were also explored in testimony.
    On the
voir dire
, Constable Durgan testified that when the appellant
    answered the door, the officer advised him that he was under arrest for
    invitation to sexual touching. The appellant turned around and walked back into
    the apartment. Crown counsel asked the officer when he gave the appellant the right
    to counsel and why he waited until they were in the police vehicle. His
    explanation was that he wanted to do it in a safe environment. Because the
    appellant walked back into the apartment, he had to keep control of him and
    ensure everyones safety. Once they were in the police car, he could take out
    his notebook and read the rights to counsel and caution in a safer environment.

[33]

The
    trial judge was entitled to accept this explanation for the short delay in
    reading the appellant his right to counsel. A delay in informing an arrestee
    about the right to counsel is permitted on the basis of concerns for officer or
    public safety:
R. v. Suberu
, 2009 SCC 33, [2009] 2 S.C.R. 460, at
    paras. 2 and 41, and
R. v. Gonzales
, 2017 ONCA 543, 385 C.R.R. (2d)
    115, at para. 123; see also as an example,
R. v. Dhindsa
, 2013 ONCJ 32,
    at para. 51.  Furthermore, the police did not question the appellant during the
    six minute time period and no statements were made. Because of all the
    circumstances, the facts do not raise a
prima facie
issue under s.
    10(b), and it was reasonable for the trial judge not to consider s. 10(b).

[34]

With
    respect to the s. 8 motion, the trial judge explained the issue to the
    appellant, facilitated the holding of the
voir dire
where all the
    relevant witnesses were called by the Crown, then gave the appellant the
    opportunity to see if he could find duty counsel over lunch to give him any
    assistance he needed with the argument. After the lunch break, the appellant
    reported that he was not able to get much assistance. He first asked for an
    adjournment, then withdrew that request and sought to withdraw the application.
    However, the trial judge directed the Crown to argue the s. 8 issue, the
    appellant made brief submissions that the police should have had a warrant to
    search, and the trial judge gave his ruling on it.

[35]

The
    appellants argument on the appeal is that the trial judge was obliged to
    provide the appellant with additional assistance to argue his
Charter
application. He refers to some examples from the Canadian Judicial Councils
Statement
    of Principles on Self-Represented Litigants and Accused Persons
, published
    September 2016, such as explaining the case law to allow the accused to make
    critical choices, providing information to assist in understanding  rights or
    asserting arguments, and making referrals to agencies for education advice and
    assistance, or questioning witnesses.

[36]

These
    examples of additional assistance are always recommended in the context and
    circumstances of each case and each accused. In this case, the trial judge
    lived up to his obligation. The appellant was articulate and capable before the
    court. The trial judge explained procedures and choices to be made as the trial
    progressed. He held a
voir dire
to hear the evidence regarding the
    arrest and search. The witnesses were all cross-examined by the appellant. The
    trial judge gave the appellant an opportunity to seek any assistance he wanted
    at the lunch break and was prepared to give an adjournment, although he was
    clearly reluctant to do so at that stage with the trial proceeding hopefully
    within the allotted timeframe.

[37]

Finally,
    the legal issues were clear and familiar to the judge. He had to deal with a
    warrantless search of a home upon arrest. He received submissions from both
    sides, then made his ruling. This was not a situation where the unrepresented
    accused did not understand the language or the proceedings. Because he was not
    legally trained, the trial judge assisted him procedurally along the way, gave
    him the opportunity to get assistance, did not acquiesce in the appellants
    request to withdraw his motion, but heard it fully and gave his reasons based
    on the law.  In my view, there is no basis to suggest that the trial judge
    failed to provide sufficient guidance to the appellant, such that he did not
    receive a fair trial as a self-represented accused.

Issue 3: Did
    the trial judge err in dismissing the s. 8
Charter
application and
    admitting the seized evidence?

[38]

In
    oral reasons delivered following the argument, the trial judge concluded that
    the Crown had met its burden of proof on a balance of probabilities that the
    seizure was reasonable in the circumstances. He found that once Constable
    Durgun had placed the appellant under arrest, he was in his care and custody.
    As a result, the two officers were required to follow him into the apartment
    and were lawfully there. They were legally entitled to seize the computer and
    the cell phone on three bases: 1) a search incident to arrest and seizure of
    items that appeared to be related to the crimes charged; 2) the items were in
    plain view on the kitchen counter as they walked through the kitchen to the
    bedroom with the appellant; and 3) s. 489(2)(b) of the
Criminal Code
, which
allows officers to seize without
    a warrant anything they believe on reasonable grounds was used in the
    commission of an offence.

[39]

The
    appellant submits on this appeal that the trial judge erred by finding that the
    officers were lawfully in the dwelling. He argues that each of the
    justifications for the seizures depends on the lawfulness of the officers
    presence in the dwelling. The appellant relies on cases such as
R. v.
    Feeney
, [1997] 2 S.C.R. 13 at para. 43,
R. v. Silveira
, [1995] 2
    S.C.R. 297, at para. 140, and
R. v. Golub
(1997), 117 C.C.C. (3d) 193
    (Ont. C.A.) for the proposition that the officers breached the appellants
    right to privacy in his home by entering without permission.

[40]

However,
    in those cases, the police entered the home either before they had made an
    arrest, or in
Golub
, in order to search following the arrest. In this
    case, the officers arrested the appellant at the door, and only entered his
    apartment when he turned away and entered it following his arrest. First, they
    needed to accompany him in order to maintain control over him for officer
    safety and second, to prevent him from destroying evidence. The police had been
    dispatched to arrest the appellant when the investigating officer, who was
    interviewing the complainant and the appellants daughters, observed the
    appellant at the police station leaving in a hurry. The investigating officer
    was concerned about the destruction of evidence and therefore authorized the
    appellants immediate arrest. In the circumstances that occurred, the officers
    entrance into the apartment was lawful.

[41]

The
    officers did not proceed to conduct a search without a warrant. They would not
    have been entitled to do so in the circumstances. However, they observed the
    computer partly open and the cell phone in plain view. They were entitled to
    seize items they believed constituted evidence of the offence in accordance
    with s. 489(1)(b) of the
Code
. Therefore, the trial judge did not err
    in concluding that the appellants right under s. 8 of the
Charter
was
    not breached.

[42]

As
    there was no
Charter

breach, there is no need to consider s.
    24(2). .

Issue 4:  Sentence Appeal

[43]

The
    trial judge sentenced the appellant to 15 months imprisonment together with
    one year probation. That sentence was imposed before the mandatory minimum of
    12 months imprisonment for the offense of child luring provided by s. 172.1(2)(a)
    was struck down by this court in
R. v. Morrison
as contrary to s. 12
    of the
Charter
.


[44]

In
    his reasons for sentence, the trial judge noted that the appellant continued to
    deny that he had committed the offence and expressed no remorse. He also
    declined to provide the author of the pre-sentence report with the names of any
    people to contact or with authority to contact the Childrens Aid Society,
    which had been involved with the family. The complainant declined to provide a
    victim impact statement. The trial judge accepted that she wished to put the
    ordeal behind her. During her testimony at the trial, she was at times brought
    to tears. The trial judge also stated, referring to this courts decision in
R.
    v. Woodward
, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 58, that child
    luring over the internet has become a pervasive social problem in the
    community.

[45]

At
    the sentencing hearing, the Crown submitted that deterrence and denunciation
    were the principal sentencing objectives, and that given the lack of remorse,
    rehabilitation should not be given much consideration. The appellant suggested
    a shorter sentence with probation and community service. He also raised the
    concern of his continuing medical issues arising from a serious car accident in
    1997, which left him unable to work, and the difficulties that would pose for
    him in prison.

[46]

Regarding
    the appropriate range for the offence of child luring, the trial judge referred
    again to the case of
Woodward
,
as well as the cases of
R. v. Jarvis
(2006), 211 C.C.C. (3d) 20 and
R.
    v. Dragos
, 2012 ONCA 538, 111 O.R. (3d) 481 from this court. In
Jarvis
,
    which pre-dated the enactment of the mandatory minimum on August 9, 2012, the
    court upheld a 6 month sentence following a guilty plea, but called it lenient,
    and referred to an established range from trial decisions of 12 months to 2
    years. In
Woodward
, which also pre-dated enactment of the mandatory
    minimum, Moldaver J.A. noted that Parliament had doubled the maximum sentence from
    5 years to 10 years since
Jarvis
, and suggested at para. 58 that, if
    evidence were properly tendered showing
that the offence of
    luring has become a pervasive social problem, then
a range of 3 to 5
    years could well be warranted in order to deter, denounce and separate from
    society adult predators who commit this serious crime. In both
Woodward
and
Dragos
, the complainant was actually lured to a sexual encounter with
    the accused. The trial judge accepted that the range in
Jarvis
had
    been modified by
Woodward
.

[47]

The
    trial judge then noted that the only mitigating factor was that the appellant
    had no criminal record. He specifically rejected the Crowns submission to
    treat the lack of remorse as an aggravating factor. He referred to the
    principles of sentencing, including proportionality. He also accepted that the
    appellants conduct had had a significant impact on the complainant.

[48]

Ultimately,
    the trial judge accepted the Crowns submission that a sentence of 15 months
    incarceration followed by 1 year of probation was appropriate. He concluded
    that although 15 months was below the start of the range suggested in
Woodward
,
    it was not manifestly unjust, given that the luring in this case was not
    successful, was over a relatively short period of time, and took into account
    the mitigating factors of the lack of a criminal record and that the appellant
    did not violate his bail conditions.

[49]

The
    Crown on the appeal acknowledges that because the mandatory minimum sentence
    was struck down in
Morrison
after the sentence was imposed in this
    case, a fit sentence should be determined by this court. However, the Crowns
    submission is that regardless of the former minimum, 15 months is a fit
    sentence for this offender and should be upheld. The appellants position is
    that the mandatory minimum created an inflationary floor that had the effect
    of increasing the sentence that would otherwise have been imposed, and that a
    fit sentence is 6 months imprisonment.

[50]

The
    appellant submits that because the complainant did not see the messages until
    several months after they were sent and after the appellant had stopped sending
    them, and did not reply, plus the appellant did not attempt to arrange an
    encounter or groom her for a sexual encounter, that a lower sentence is
    warranted.

[51]

I
    would not give effect to this submission. The fact that the appellants
    approach was direct and unsubtle, and that he gave up when he got no response,
    are not mitigating factors for which the appellant is entitled to any credit. The
    appellant knew the complainant and had direct contact with her in his role as
    the father of her friends. While this may not constitute a direct fiduciary
    relationship, it is akin to one. The complainant was actually under 16. The
    messages that were sent were abhorrent, and if the complainant had been lured
    to respond, could have led to serious sexual offences.

[52]

This
    court has repeated many times that where adult sexual predators exploit
    innocent children, deterrence and denunciation and the need to separate the
    perpetrators from society are the predominant objectives of sentencing:
Woodward
,
    at para.76. In
Jarvis
, this court commented that 6 months is a lenient
    sentence. In
R. v. Gucciardi
, 2017 ONCJ 770, a case that was decided
    after
Morrison
, the accused was sentenced to 12 months incarceration
    in order to give effect to the objectives of deterrence and denunciation, where
    there were a number of mitigating factors not present in this case, including
    the fact that the accused pleaded guilty, expressed remorse, had a supportive
    family, and had taken positive steps toward his rehabilitation.

[53]

In
    my view, the sentence of 15 months imposed by the trial judge is a fit sentence
    for the appellant in all the circumstances of this case.

Result

[54]

I
    would dismiss the appeal against conviction, and grant leave to appeal the
    sentence, but dismiss the sentence appeal.

Released: K.F. August 3, 2018

K.
    Feldman J.A.

I
    agree. David M. Paciocco J.A.

I
    agree. Fairburn J.A.





[1]

The evidence was that the complainant did not actually look at
    the messages on her Facebook account until several months later, after she had
    turned 16.


