



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Haniffa, 2021 ONCA 326

DATE: 20210517

DOCKET: C64988

Juriansz, Tulloch and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Erhard Haniffa

Appellant

Boris Bytensky, for the appellant

Tracy Kozlowski, Katie Doherty and Lisa
    Fineberg, for the respondent

Heard: January 12-13, 2021 by
    videoconference

On appeal from
    the convictions entered by Justice Joseph F. Kenkel of the Ontario Court of
    Justice on June 13, 2017, with reasons reported at 2017 ONCJ 525, and the
    ruling on multiple convictions dated October 2, 2017, and the ruling on
    entrapment dated November 8, 2017, with reasons reported at 2017 ONCJ 780, and the
    rulings on s. 11(b) dated November 8, 2017 and September 4, 2018, with reasons
    reported at 2017 ONCJ 781 and 2018 ONCJ 615, and the sentence imposed on
    October 29, 2018, with reasons reported at 2018 ONCJ 960.

Juriansz J.A.:

[1]

This appeal was argued together with two other
    defence appeals,
R. v. Jaffer
and
R. v. Dare
, and a Crown
    appeal,
R. v. Ramelson
. All the appeals arose out of arrests and
    prosecutions pursuant to Project Raphael of the York Regional Police (YRP). Project
    Raphael was an undercover YRP investigation that began in 2014 with the
    objective of reducing the demand for sexual services from juveniles in the
    region by targeting the buyer side.

[2]

As part of the investigation, the police posted
    fake advertisements in the escorts section of the online classified
    advertising website Backpage. When persons responded to the ads, an undercover officer
    posing as the escort would disclose in the ensuing text chat that she was underage.
    Individuals who continued the chat and arranged sexual services and a price
    were directed to a hotel room to complete the transaction and were arrested and
    charged on their arrival.

[3]

The common issue in the four appeals is whether
    the individuals who were arrested and prosecuted pursuant to Project Raphael
    were entrapped by the police. The appellant also appeals his convictions, the
    dismissals of his s. 11(b) applications, the trial judges refusal to stay the
    third count with which he was charged on the
Kienapple
principle, and
    his sentence.

[4]

For the reasons that follow, I would dismiss the
    appeal of all the appellants post-trial applications. I would allow the
    sentence appeal.

A.

THE FACTS IN THIS CASE

[5]

In this case, the ad the police placed on the escorts
    section of Backpage purported to have been placed by Jamie. Jamie described
    herself as YOUNG shy FRESH and NEW. The ad included photographs of a female
    police officer, whose face was not shown, posing as Jamie. The ad indicated
    Jamie was 18 years old, the minimum age allowed by Backpage.

[6]

On March 22, 2016, the appellant texted Jamie
    and asked if she was working. The undercover officer, Truong, responded and after
    exchanging a number of preliminary messages, texted r u okay if im not quite
    18 yet?. The appellant asked, Is this like a cop thing or something? and
    then asked Jamie how old she was. Truong responded, Im 15 to be hones but i
    look older hun. The appellant was wary and said in several texts Not getting
    a good feeling about this, No r u [a cop], and Dont even know if I am
    talking to the person I am seeing [in the ad]. Truong sent additional texts
    referring to Jamies age as 15. Despite his skepticism, the appellant continued
    the text chat and eventually proceeded to the hotel to meet Jamie for the
    sexual services negotiated in the text chat.

[7]

When the appellant arrived at the room, he was
    arrested and charged with the following three counts:

Count 1: Communicating via telecommunication
    with a person he believed to be under the age of 18 years for the purpose of
    facilitating an offence under s. 286.1(2) (obtaining sexual services from a minor)
    contrary to s. 172.1(2) (child luring under 18).

Count 2: Communicating via telecommunication
    with a person he believed to be under the age of 16 years for the purpose of
    facilitating an offence under s. 152 (invitation to sexual touching) contrary
    to s. 172.1(2) (child luring under 16).

Count 3: Communicating for the purpose of
    obtaining for consideration the sexual services of a person under the age of 18
    years contrary to s. 286.1(2) (communicating to obtain sexual services from a
    minor).

[8]

While the information references s. 171.1(2), counts
    1 and 2 relate to the offences under ss. 172.1(1)(a) (child luring under 18)
    and 172.1(1)(b) (child luring under 16). Section 172.1(2) sets out the
    punishment for these offences.

[9]

The appellants defence at trial was that he did
    not believe the person with whom he was communicating was younger than 18. He
    said he did not believe he was even speaking to a woman based on the speech
    patterns used in the messages. He said he thought he was speaking either to a
    police officer or a pimp trying to set him up for extortion. The appellant
    testified that because of his experience as a child victim of a serious sexual
    assault he would never want to have sex with a minor.

[10]

The trial judge found the appellant guilty on
    all three counts.

[11]

On October 2, 2017 the judge ruled on whether
    some of the convictions should be stayed according to
Kienapple v. R.
, [1975]
    1 S.C.R. 729. The Crown agreed that one of the two counts under s. 172.1 should
    be stayed. The appellant submitted that, in addition, count 2 (child luring
    under 16) and count 3 (communicating to obtain sexual services from a minor) contained
    substantially the same elements and that one of those convictions should also
    be stayed. The judge entered a stay only on count 1 (child luring under 18).

[12]

The appellant also applied for a stay of
    proceedings on the basis he had been entrapped. The application was denied.

[13]

The appellant also brought two applications for
    a stay of proceedings claiming delay in violation of his s. 11(b) right under
    the
Canadian Charter of Rights and Freedoms
to a trial within a
    reasonable time. Both applications were denied.

[14]

He brought the first application submitting that
    the entrapment hearing was scheduled beyond the 18-month presumptive ceiling
    set in
R. v. Jordan
, 2016 SCC 27, [2016] 1 S.C.R. 631. In a decision
    released on November 8, 2017, the trial judge dismissed the application on the
    basis that the presumptive ceiling in
Jordan
did not apply to
    proceedings after the verdict. He stated that the principles underlying
Jordan
did not support extending the framework to include post-trial applications.

[15]

The appellant brought the second application primarily
    based on a delay in disclosure before sentencing and a Crown application with
    respect to mandatory minimum sentences. In a decision dated September 4, 2018,
    the trial judge stated that the ultimate question was whether the case had
    taken markedly longer than what was reasonably required and concluded that the
    matter had moved quickly at every stage. He found each of the nine post-verdict
    applications were brought and heard efficiently and could not have moved along
    much more quickly than they did.

B.

arguments on appeal

[16]

The appellant submits
    the trial judge made five errors:

1.

by finding the appellants testimony did not
    raise a reasonable doubt without considering his good character evidence;

2.

by failing to apply the
Kienapple
principle to conditionally stay count 2 (child luring under 16), in addition to
    count 1 (child luring under 18);

3.

by failing to find that the appellants right to
    be tried within a reasonable time as guaranteed by s. 11(b) of the
Charter
was violated; and

4.

by concluding Project Raphael was a bona fide
    inquiry and failing to find that the investigative scheme constituted
    entrapment; or

5.

in the alternative, by failing to find that the
    police conduct constituted entrapment for the s. 172.1(1)(b) (child luring
    under 16) offence.

The appellant
    also appeals his sentence on the basis that COVID-19 has rendered his sentence
    unfit.

C.

analysis

(1)

Appellants good character testimony

[17]

The appellant complains that the trial judge did
    not mention his testimony that he would not have committed any sexual offence
    involving a minor because he had been a victim of sexual assault as a child. He
    argues that the trial judge was obliged to consider this evidence and, if he
    rejected it, explain why it did not leave him with a reasonable doubt.

[18]

This was a trial before a judge alone. The trial
    judge stated he had considered all the evidence, he gave cogent reasons for his
    determinations of credibility, and he concluded the appellants evidence did
    not leave him with a reasonable doubt. He described the appellants evidence as
    internally contradictory and illogical to the point of being nonsensical on
    the central points. He said the appellants testimony was contradicted by
    credible external evidence including the text messages he sent and his actions
    on the day in question.

[19]

The trial judges reasons for rejecting the
    appellants evidence were sufficient. The trial judge did not commit any
    reversible error by failing to avert to the evidence the appellant led to
    support his good character.

(2)

Kienapple

[20]

The
    trial judge held, and the Crown conceded, that counts 1 and 2, the two child
    luring charges, shared a sufficient factual and legal nexus such that one
    should be stayed. He stayed count 1 (child luring under 18).

[21]

The trial judge noted, as the parties agreed, that there was a sufficient
    factual nexus between counts 2 (child luring under 16) and 3 (communicating to
    obtain sexual services from a minor) to satisfy the
Kienapple
principle.
    However, relying on in
R. v. Prince
, [1986] 2 S.C.R. 480, he found a lack
    of legal nexus between counts 2 and 3 because s. 172.1 and s. 286.1(2) have
different and distinguishing elements
that showed different
    statutory purposes. The luring offence in count 2 was directed towards the use
    of telecommunication which enables adults to engage in anonymous, low
    visibility contact with vulnerable children. The offence in count 3 was aimed
    at commercialized prostitution involving persons under 18 years of age.
Therefore, he concluded that the
Kienapple
principle did not
    apply to counts 2 and 3.

[22]

The appellant submits the trial judge erred by conditionally
    staying only count 1 under the
Kienapple
principle. Count 1 charged the
    appellant under s.172.1 with luring a person under 18 to facilitate the
    commission of the s. 286.1(2) offence.

[23]

The appellant submits count 3 (communicating to
    obtain sexual services from a minor) should have been stayed as well. He points
    out that, in this case, all three counts arose from one conversation by text
    message, by one person, on one occasion, with one person believed to be
    underage, for the purpose of engaging in one specific sexual encounter. This,
    he submits, shows it is clearly the same delict.

[24]

The appellant submits that if the purpose
    behind the legislation was sufficient reason to avoid the application of the
    rule against multiple convictions, the trial judge should not have
    conditionally stayed either of the luring charges because they were both
    enacted for the same statutory purpose.

[25]

Finally, the appellant claims to demonstrate the
    error by submitting that had the appellant been tried and convicted of the two
    luring counts only, he would be able to plead
autrefois convict
if the Crown
    subsequently sought to try him on the s. 286.1(2) count.

[26]

I see no error in the trial judges reasoning.
    The two counts do indeed have the different and distinguishing elements he
    identified. I also agree that the two offences have the different statutory
    purposes he stated.

[27]

The appellants observation that count 1 (child
    luring under 18) also has a different statutory purpose to count 3
    (communicating to obtain sexual services from a minor) is not on point. The
    trial judge stayed count 1 (child luring under 18) because of its factual and
    legal nexus to count 2 (child luring under 16), and not count 3 (communicating
    to obtain sexual services from a minor). The remaining question is related to
    the relationship of count 2 and count 3.

[28]

I reproduce the two counts:

Count 2: Communicating via telecommunication
    with a person who he believed to be under the age of 16 years for the purpose
    of facilitating an offence under s. 152 (invitation to sexual touching)
    contrary to s. 172.1(2) (child luring under 16).

Count 3: Communicating for the purpose of
    obtaining the sexual services of a person under the age of 18 years contrary to
    s. 286.1(2) (communicating to obtain sexual services from a minor).

[29]

Count 2 requires communication via
    telecommunication and the communication in count 3 must be to obtain sexual
    services for consideration. As Leibovich J., put it in
R. v. Faroughi
,
    2020 ONSC 780, [s]ection 286.1(2) seeks to protect against the evils of
    child prostitution, while section 172.1 seeks to protectthe criminal use of
    the internet and other similar devices to sexually exploit children.

[30]

I am not persuaded there is any basis to
    interfere with the trial judges decision.

(3)

Section 11(b)

[31]

The trial judge dismissed both of the
    appellants applications for a stay pursuant to s. 11(b).

[32]

The appellant acknowledges that the
Jordan
presumptive ceilings do not typically apply to post-verdict delay. However, he
    points out that trial judges can refuse to enter a conviction if they find
    entrapment:
R. v. Mack
, [1988] 2 S.C.R. 903, at p. 972. This, he submits,
    makes entrapment applications unlike other post-trial motions. In entrapment
    applications, the question whether the accused will be convicted remains unresolved.

[33]

I do not accept that entrapment hearings are
    exceptional post-trial proceedings that should be included in the
Jordan
presumptive ceilings. The Supreme Court in
R. v. K.G.K.
,

2020 SCC
    7, 443 D.L.R. (4th) 361, held that the presumptive ceilings established in
Jordan
do not apply to the trial judges deliberation time, and said the ceilings apply
    from the charge to the end of the evidence and argument, and no further: at
    para. 33. The Supreme Court explicitly rejected the possibility that
Jordan
ceilings apply from the charge to the conclusion of post-trial motions:
K.G.K.
,
    at para. 33.

[34]

While the
Jordan
ceilings do not apply, I
    must still consider whether the post-trial delay infringed the appellants
    rights under s. 11(b). The protections afforded by s. 11(b) encompass the time
    up to and including the date when a sentence is imposed:
K.G.K.
, at
    para. 3;
R. v. MacDougall
, [1998] 3 S.C.R. 45, at para. 19.

[35]

In
R. v. Charley
, 2019 ONCA 726, 147 O.R.
    (3d) 497, Doherty J.A. set a presumptive five-month ceiling, subject to the
    same exceptions and principles as the
Jordan
presumptive ceiling, that
    applies to sentencing delay. I do not accept the appellants submission that this
    presumptive five-month ceiling applies to both post-trial motions and
    sentencing. In
Charley
the issue was sentencing delay. The delay was due
    to a Crown application to have the offender declared a dangerous offender. I am
    satisfied the five-month presumptive ceiling was intended to apply to the
    sentencing process alone.

[36]

The time required to deal with post-trial
    motions unrelated to sentencing must be considered separately as it is not
    possible to prescribe a presumptive ceiling for the completion of post-trial
    motions. Obviously, the number and complexity of post-trial motions will vary
    with each case. The time taken for post-trial motions should not be
    unreasonable considering the number and complexity of the motions in the
    specific circumstances of the particular case.

[37]

The time taken for post-trial motions in this
    case was not unreasonable. The verdict was rendered on June 13, 2017 and the
    final ruling on the post-trial motions was delivered on September 4, 2018,
    approximately 14 months and 27 days later. From November 8, 2017 to December 6,
    2017, the parties were dealing with a Crown application related to mandatory
    minimum sentences, which should be included in the time taken for sentencing.
    Defence counsel agreed that he was responsible for the delay from May 1, 2018
    to August 28, 2018, which results in a deduction of 4 months. This leaves 9 months
    and 23 days that were taken to deal with 8 post-trial motions.

[38]

The trial judge found that the post-verdict
    applications were necessary and had been brought and heard in an efficient way.
    He found that the overall time for the trial, including the post-verdict
    applications, was reasonable in all the circumstances. I agree with his
    assessment.

[39]

It remains to consider the sentencing delay
    subject to the
Charley
presumptive ceiling. The sentencing process began
    on November 8, 2017, when the Crown made an application related to mandatory
    minimum sentences and ended on October 29, 2018, when a sentence was imposed.
    The total length of this period is 11 months and 22 days.

[40]

On February 20, 2018, the appellant asked for an
    adjournment because of a late disclosure made by the Crown a week prior, which
    the appellant believed could impact the entrapment decision. Sentencing was
    adjourned to May 1, 2018. This period of delay amounts to 2 months and 12 days.
    The respondent submits that this should be counted as a discrete exceptional
    circumstance that should be deducted from the sentencing delay.

[41]

Defence counsel sought a further adjournment
    from May 1, 2018, to August 28, 2018 due to another trial he was involved with
    and agrees this period should not be counted. This amounts to a deduction of 3
    months and 28 days.

[42]

The appellant asked for another adjournment from
    September 5 to 28 to get his affairs in order. These three weeks and two days should
    be deducted.

[43]

Accounting for the periods that should be
    deducted, there was 4 months and 20 days of sentencing delay, which falls below
    the
Charley
presumptive ceiling.

[44]

In the above calculations a month was treated as
    30.5 days.

[45]

I conclude there was no breach of the
    appellants s. 11(b) rights.

(4)

Entrapment

[46]

Counsel for the respondent in
Ramelson
adopted the submissions made by this appellant's counsel on the issue of
    entrapment. The comprehensive reasons in
Ramelson
included the analysis
    and rejection of the two entrapment grounds in this appeal. For the reasons set
    out in
Ramelson
, I would reject this appellants argument that he was entrapped.

(5)

Sentence

[47]

The trial judge imposed a sentence of 12 months
    imprisonment on count 1 (child luring under 18) and a concurrent term of 6
    months imprisonment on count 3 (communicating to obtain sexual services from a
    minor). The problem with this is that the trial judge had stayed count 1 based
    on the
Kienapple
principle. In his
Kienapple
ruling he said, Count
    1 is stayed. The Information reflects this as it is marked Ct.1 Stayed
    Kienapple. He then failed to sentence the appellant on count 2 (child luring
    under 16), a charge that had not been stayed and for which the appellant had
    been found guilty.

[48]

The Crown submits not much turns on the fact the
    trial judge sentenced the appellant on count 1 (child luring under 18) instead
    of count 2 (child luring under 16), as the judges analysis on sentencing and
    the punishment he imposed would have been the same for either count 1 or count
    2.

[49]

I disagree. The mistake in this case is not a
    mere clerical or administrative error. The mistake is not simply referring to
    the numeral 1 rather than the numeral 2. The trial judge left no doubt he
    was purporting to exercise jurisdiction to sentence the appellant on count 1
    instead of count 2. In his sentencing reasons he stated that the respondent was
    convicted of Communicating via telecommunication to facilitate a s. 286.1(2)
    offence (child prostitution)  s. 172.1(2), but the trial judge had stayed
    that charge. He then added that a further count of Invitation to Sexual
    Touching s. 152 was stayed pursuant to the rule in
R v Kienapple
, but
    that is not the charge that he had stayed. When he imposed the sentence, the
    trial judge referred expressly to count 1 by stating, On the 172.1(2) charge
    of communicating via telecommunication to facilitate a s. 286.1(2) offence, Mr.
    Haniffa is sentenced to 12 months imprisonment.

[50]

The differences between these two offences could
    well have affected the sentence imposed. Count 1 criminalizes communicating
    with a person the accused believed to be under 18 years of age by
    telecommunication for the purpose of facilitating the offence of obtaining
    sexual services from a person under 18 of age for consideration. Count 2
    criminalizes communicating with a person the accused believed to be under 16
    for the purpose of facilitating an invitation to sexual touching.

[51]

The trial judges imposition of 12 months
    imprisonment on count 1 is without effect because further proceedings on count
    1 had been stayed earlier. The question arises whether this court should impose
    a sentence on count 2, the charge the appellant should have been sentenced on.

[52]

In sentencing the appellant on count 2, the
    constitutionality of the mandatory one-year minimum sentence stipulated in s.
    172.1(2) would necessarily arise because several Superior Court and Ontario
    Court decisions have held that the mandatory minimum one-year sentence is
    unconstitutional:
Faroughi
;
R. v. C.D.R.
, 2020 ONSC 645;
R. v.
    Saffari
, 2019 ONCJ 861;
R. v. Alekozai
, [2020] O.J. No. 1162. Furthermore,
    sentences of less than one year of imprisonment have been imposed in a number
    of Project Raphael cases:
Faroughi
,
Saffari
,
Alekozai
. In
    these grouped appeals Mr. Jaffer was sentenced to six months imprisonment, and
    Mr. Dare was sentenced to three months imprisonment to be served
    intermittently. Project Raphael cases may be distinguished from the fact
    situations in
R. v. Morrison
, 2019 SCC 15, [2019] 2 S.C.R. 3, and
R.
    v. Ghotra
, 2020 ONCA 373, for example, where the offender has taken the
    initiative in seeking sexual relations with an underage person.

[53]

The parties did not advance argument before us
    on the question of the constitutionality of the mandatory one-year minimum
    sentence stipulated in s. 172.1(2). Consequently, it would be inappropriate for
    the court to exercise its discretion to sentence the appellant on count 2.

[54]

I recognize the appellant was sentenced on
    October 29, 2018, before the onset of the COVID-19 pandemic. I take judicial notice
    that the pandemic is in its third wave, that younger healthy persons are succumbing,
    and that the provincial government has taken strong measures to reduce close
    human contact. That said, I am not persuaded this court should intervene in a
    fit sentence without any evidence about the appellants particular
    circumstances and the current conditions within correctional facilities. These
    are considerations that can be taken into account when this matter is remitted
    to the trial judge for sentencing on count 2.

D.

Conclusion

[55]

I would dismiss the appellants appeal of
    conviction, the ruling on multiple convictions, the entrapment application, and
    the s. 11(b) applications. I would allow his appeal of sentence, set aside the
    sentence imposed on count 1, and remit his sentence on count 2 to the trial
    judge.

Released: May 17, 2021 RGJ

R.G. Juriansz J.A.

I agree. M. Tulloch J.A.

I agree. David M. Paciocco J.A.


