



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. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1)       Subject to subsection (2),
    the presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25, s.
    22(2), effective December 6, 2014 (Act, s. 49).

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

(2)     In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

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

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

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3)     In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4)     An order made under this section
    does not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s.
    8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c.
    13, s. 18..

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. Rafiq, 2015 ONCA 768

DATE: 20151112

DOCKET: C58792

Strathy C.J.O., Lauwers J.A. and Speyer J. (
ad
    hoc
)

BETWEEN

Her Majesty the Queen

Appellant

and

Yasir Rafiq

Respondent

Lisa Henderson, for the appellant

Nathan Gorham and B. Vandebeek, for the respondent

Heard: October 1, 2015

On appeal from the sentence imposed on April 17, 2014 by
    Justice N.L. Backhouse of the Superior Court of Justice.

Strathy C.J.O.:

A.

introduction

[1]

The respondent pleaded guilty to one count of child luring contrary to
    s. 172.1 of the
Criminal Code
. He received a conditional sentence
    of two years less a day.

[2]

The Crown seeks leave to appeal the conditional sentence. If leave is
    granted, it asks that the appeal be allowed and a custodial term imposed.

[3]

For the reasons that follow, I would grant leave, allow the appeal, and
    order the appellant incarcerated for the time remaining on his conditional
    sentence.

B.

The Facts

[4]

Between April and December 2009, the respondent engaged in sexually
    explicit Internet chats with a 12-year-old girl, E.F., who lived in the south
    western United States. He instructed her on sexual activities, sent her
    photographs of his penis, induced her to send him nude photographs of herself,
    and had lengthy chats with her, requesting that she masturbate at the same time
    as he did.

[5]

The respondent met E.F. through an Internet tennis game. He used a false
    name and told her he was 22 years old. In fact, he was 24. She initially told
    him she was 18. In fact, she was 12.

[6]

They began communicating by email and instant messenger. The respondent asked
    E.F. about her sexual experiences. From her relative ignorance of sexual
    matters, he suspected that she was younger than 18.  He pressed her for
    details. She admitted she was only 12. This was in June, a month or two after
    they began communicating.

[7]

With knowledge that E.F. was 12, the respondent continued his sexually
    explicit communications for another five months. He escalated from chatting, to
    sending photos of his erect penis, to suggesting sexual acts for her to engage
    in, to asking for and receiving nude photographs of her body, including
    close-ups of her vagina. He engaged in lengthy sexual chats with her while he
    masturbated, requesting that she do so at the same time. He instructed her on
    how to perform oral sex on a banana and she sent him photographs of herself
    doing so. He instructed her on inserting objects into her vagina.

[8]

E.F. sent the respondent at least 38 nude photographs of herself. Some
    contained close-ups of her vagina, posed according to his directions. When she
    expressed reluctance about sending more, he told her that another girl was
    willing to send him photographs if she did not.

[9]

The respondent clearly realized that what he was doing was wrong. At one
    point, he suggested E.F. could say she was 18 in their chats. She declined to
    do so, protesting that she was 12 years old, not 18.

[10]

Eventually,
    E.F. stopped communicating. Her parents discovered what had been taking place.
    In December, they reported the offence to police, who interviewed E.F. The
    communications were traced to a computer in the respondents home in
    Scarborough, Ontario. Police arrested him. They found his emails and chats with
    E.F. on his computer. They also found a number of pornographic photographs of E.F.,
    hidden on his computer in a folder named E.. They also found five child
    pornography videos on his computer, none of which involved E.F.

[11]

For
    the purposes of sentencing, the respondent admitted the possession of the
    photographs of the victim, although he did not plead to the count of possession
    of child pornography. He testified that he was not aware of the child
    pornography videos on his computer, which he thought might have been
    inadvertently downloaded with other pornographic videos. The sentencing judge
    accepted this explanation.

C.

The sentencing Judges Reasons

[12]

The
    sentencing judge identified the sentencing principles set out in ss. 718, 718.1
    and 718.2 of the
Code
and noted the specific principles applicable to
    cases such as this, set out by this court in
R. v. Woodward
, 2011 ONCA
    610, 107 O.R. (3d) 81. There, this court stated, at para. 76, that the focus of
    the hearing should be on the harm caused to the child by the offenders
    conduct and the life-altering consequences that can and often do flow from it.
    This court went on to say that while the effects of the sentence on the
    offender, and the prospects for rehabilitation warrant consideration, the
    objectives of denunciation and deterrence, and the need to separate sexual
    predators from society for societys well-being and the well-being of our children
    must take precedence.

[13]

The
    sentencing judge also accepted that, in the absence of exceptional
    circumstances, a conviction for Internet luring will normally require a period
    of significant incarceration, and that this principle should be departed from
    only in the rarest of cases.

[14]

She
    considered the following factors aggravating: (a) the presence of an actual
    victim (as opposed to a police officer) and the suffering of the victim and her
    family; (b) the victim was 12-years old, bringing the case within the most
    serious luring charge; (c) the prolonged nature of the conduct, 6 to 7 months;
    and (d) the accused was a healthy 24-year-old manipulating a 12-year-old girl.

[15]

The
    following factors were mitigating: (a) a guilty plea, saving the victim from
    testifying; (b) the absence of a criminal record; (c) a supportive family; (d)
    a lengthy period on bail; (e) submitting to a psychiatric assessment and
    counselling; (f) a low risk of re-offending; and (g) genuine remorse.

[16]

E.F.s
    mother filed a victim impact statement. E.F. herself did not wish to do so. The
    sentencing judge had no doubt about the sincerity of the mothers belief about
    the effect of the crime on her daughter, and no doubt that the accuseds
    conduct had impacted E.F. However, without a professional assessment, she
    viewed the mothers opinion with caution. Although E.F. was in counselling,
    there was no report from her counsellor. There was no evidence that her
    academic progress had been affected and no evidence that her social life had
    changed. Although her mother believed that E.F. was depressed, the sentencing
    judge was unable to determine if this was clinical and related to the abuse or
    typical teenage angst.

[17]

The
    sentencing judge concluded that there was some negative impact on the victim,
    but not of such a degree as to be life-altering, as described in
Woodward
.

[18]

The
    respondent had very strong rehabilitative prospects. He pleaded guilty, showed
    sincere remorse, and spared the victim from testifying. He had no criminal
    record. He had a strong employment history. He had strong family support. He received
    counselling. An expert psychiatric report established that he was not a
    paedophile and was at negligible risk of committing future offences. The
    respondent had never attempted to meet the victim. The expert testified that
    someone who has already arranged a meeting is a higher risk than someone who has
    not. The expert testified that the respondent was a very good candidate for
    counselling. The respondent spent about four months under restrictive bail
    prior to sentencing, and four additional months on bail with a curfew.

[19]

The
    sentencing judge accepted the expert evidence that the respondent was not a paedophile
    and found that while he was emotionally immature, there were good prospects for
    counselling. He was a naïve man who exercised poor judgment. He had shown
    insight into his crimes, remorse, empathy and motivation not to let it happen
    again.

[20]

The
    sentencing judge considered that the most important thing was for the appellant
    to receive regular counselling. She found there would be less risk to the
    public if he could continue his counselling and his employment.

[21]

The
    sentencing judge concluded that this was one of the rarest of cases in which
    a conditional sentence was appropriate. She therefore sentenced the respondent to
    a sentence of two years less a day, with 12 months of house arrest (except
    while travelling to or from or at his place of employment), followed by a
    12-month curfew and 100 hours of community service.

D.

The Standard of Review

[22]

It
    is well-settled that absent an error in principle, failure to consider a
    relevant factor, or an overemphasis of appropriate factors, this court should
    interfere only if the sentence is demonstrably unfit:
R. v. M.(C.A.)
,
    [1996] 1 S.C.R. 500, at para. 90;
R. v. Ramage
, 2010 ONCA 488, 257
    C.C.C. (3d) 261, at para. 69.

[23]

This
    standard of review is deferential. It recognizes the unique position and
    experience of the sentencing judge when balancing the competing interests at
    play in the sentencing process, particularly those of the victim, offender and
    community. This court observed in
Ramage
, at paras. 72-73, that the
    sentencing judge is in the best position to gauge the interests of the
    community when assessing if a conditional sentence could meet the needs of
    general deterrence and denunciation.

E.

Discussion

[24]

A
    conditional sentence was not appropriate in this case.

[25]

Section
    172.1(1) of the
Code
provides:

Luring
    a child

172.1

(1) Every
    person commits an offence who, by a means of telecommunication, communicates
    with

(
a
) a person who is, or who the accused believes
    is, under the age of 18 years, for the purpose of facilitating the commission
    of an offence with respect to that person under subsection 153(1), section 155,
    163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2),
    286.2(2) or 286.3(2);

(
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; or

(
c
) a person who is, or who the accused believes
    is, under the age of 14 years, for the purpose of facilitating the commission
    of an offence under section 281 with respect to that person.

[26]

This
    offence now features a mandatory minimum sentence of one year, when the Crown
    proceeds by indictment, or six months, when prosecuted summarily: s. 172.1(2).
    No minimum sentence was in place during the time of the offence at issue. Had
    one been, the respondent would not have been entitled to a conditional
    sentence: s. 742.1(b).

[27]

In
R. v. Folino
(2005), 77 O.R. (3d) 641, this
    court stated that the offence of child luring must be dealt with seriously to
    protect vulnerable children from predators who use the Internet to lure them
    into situations in which they can be exploited and abused. The sentencing
    objectives of denunciation and deterrence require a sentence of incarceration
    in most cases. A conditional sentence will only be appropriate in the rarest
    of cases.

[28]

While
    I acknowledge the sentencing judges appropriate concern for the rehabilitation
    of a naïve and immature offender, it is my respectful view that a conditional
    sentence was unfit in the circumstances of this case. That sentence did not
    give adequate expression to denunciation and deterrence. Nor did it give
    adequate consideration to the impact of the offence on the victim. It  also
    ignored aggravating factors.

[29]

I
    will begin by identifying the aggravating factors that should have been
    considered. I will then address the impact of the offence on the victim,
    distinguish this case from others in which a conditional sentence was imposed for
    child luring, and, finally, explain why denunciation and deterrence call for a
    sentence of incarceration.

Failure to consider aggravating factors

[30]

In
    her analysis of the appropriate sentence, the sentencing judge failed to take
    into account that, in the course of committing the offence of child luring, the
    respondent repeatedly and successfully urged the victim to make and distribute
    child pornography by sending naked images of herself to him, an offence under
    s. 163.1 of the
Code
.

[31]

Although
    the respondent did not plead guilty to distribution or possession of child
    pornography, it was agreed that the court could consider the child pornography
    as part of the circumstances of the offence. The child pornography offence featured
    a mandatory minimum sentence. A conviction for that offence would have
    precluded the respondents conditional sentence.

[32]

The
    trial judge made no reference to the production of child pornography in her
    analysis of aggravating factors. The exploitation of the victim to produce
    made-to-order child pornography, for his own sexual gratification, was a
    significant aggravating factor: see
R. v. Jarvis
(2006), 211 C.C.C.
    (3d) 20 (C.A.), at para. 31;
R. v. R.B
., 2014 ONCA 840, 327 O.A.C. 20,
    at para. 10.

[33]

Once
    the victim supplied nude photographs of herself to the respondent, he was able
    to manipulate her to continue to supply more. I agree with the observation in
R.
    v. Hajar
, 2014 ABQB 550 at para. 18, that [t]he potential for such images
    to be shared with others may, even in the absence of any extortion by the
    offender, make the young victim more sexually compliant in an attempt to
    maintain some indirect control over the images, thus encouraging what appears
    to be
de facto
consent.

[34]

It
    was also aggravating that the
respondent groomed
    his child victim by cultivating her trust, steering the conversations towards
    sexual topics, and schooling her about sexual matters.
It may have been
    a fortunate circumstance of geography that the appellant did not attempt to
    meet with the victim, precluding his interference from escalating to direct
    physical contact.

Inadequate consideration for impact on
    victim

[35]

The
    offence has had, and likely will have, a significant impact on the victim.

[36]

Early
    in her analysis, the sentencing judge identified the principle applicable to
    cases such as this, set out by this court in
Woodward
, to the effect
    that the focus of the hearing should be on the harm caused to the child.

[37]

The
    mothers victim impact statement stated that E.F. refused to complete the
    child/youth victim impact statement. Victim impact statements may be completed
    by family members where the victim is dead, ill or incapable of making a
    statement: s. 722(2)(d). In this case, the defence did not object to the
    introduction of the mothers victim impact statement. Nor did the defence
    dispute that the harm identified in the mothers statement was referable to the
    abuse by the respondent.

[38]

E.F.s
    mother described her daughter as having become a very guarded, quiet, reserved
    stand-offish, distant and depressed young lady of 16 years and said this had
    changed the entire family dynamic. E.F. no longer had a relationship with her
    sister. Her sister had shut her out of her life, refused to acknowledge E.F. as
    her sister, and found her gross, stupid and disgusting.

[39]

The
    mother wrote that E.F. refused to talk to her family about anything in her
    life. This made it difficult to explain her conduct to relatives, without
    telling them the truth about why E.F. acts like she does.

[40]

The
    mothers statement continued:

Although she has told us she was relieved when we discovered
    what was going [on] because it immediately put a stop to the control he had
    over her and the manipulation he had over her, she states she feels she cant
    trust us or talk to us any longer since this all took place. She has been going
    to counselling for the past 4 years because of this and we still feel she is
    not over it, it is still present in her life and seems to dictate who she has
    become, which is so very sad for a beautiful young lady who has so much
    potential. We wonder if she will ever heal, find closure, be able to accept
    what happened, put it behind her and move on with her life in a healthy, happy,
    positive way.

We believe her innocence, her childhood and her ability to love
    and be loved have been stripped away because of the horrific relationship she
    had with Rafiq.

[41]

The
    mothers statement makes it clear that, in her view, the victims
    self-exclusion from her family was directly attributable to the actions of the
    respondent, and not the result of teenage angst.

[42]

The
    mothers evidence aside, in
R. v. D.D.
(2002), 58 O.R. (3d) 788
    (C.A.), at paras. 37-38, this court noted that the tragic consequences of the
    exploitation of young children by adult sexual predators include the following:
    immediate physical and psychological harm, the inability to form a loving
    caring relationship as an adult, and a proclivity to themselves becoming
    abusers as adults.

[43]

In
D.D.,
this court referred to the decision of the Court of Appeal of
    Alberta in
R. v. S. (W.B.)
and
R. v. P. (M.)
(1992), 73
    C.C.C. (3d) 530, at p. 535, in which that court observed:

One consequence of being abused sexually may be that the child
    will never be able, as an adult, to form a loving caring relationship with
    another [adult] being always fearful, even unconsciously, that such a partner
    will use sexual acts to hurt him or her rather than as an intimate expression
    of caring and affection. There is no empirical way of proving that a particular
    child victims emotional trauma will or will not make it more difficult or
    impossible for him or her to love another, without fear of abuse. We have only
    the recorded experiences of men and women who attribute their difficulties as
    adults in forming mature and fulfilling relationships to their having been
    abused sexually when they were children.

[44]

While
    these observations were made in the context of direct physical sexual abuse,
    the Internet has made it possible for abusers to get into the victims head and
    abuse remotely. The abuser can tell the victim what to do and how to do it, and
    record it  in text, video, or photograph  all for the abusers gratification.
    Thus, through manipulation and control over time by an adult abuser, the child
    victim becomes a participant in her own sexual abuse.

[45]

I
    see no reason to believe that the psychological consequences of such abuse are
    likely to be significantly less serious than the consequences of direct
    physical sexual abuse. The extent to which they will occur in any particular
    victim is impossible to predict. In this case, however, the mother had the
    advantage of observing her daughter over a four-year period. She spoke
    poignantly about her isolation from her sister and her family, and the impact
    of the events on her ability to love and be loved.

[46]

In
    my view, it was an error to discount the impact of the offence on the victim.

Conditional sentences for child luring

[47]

The
    prolonged abuse of an actual, very young girl distinguishes this case from
    others in which this court has imposed conditional sentences: see e.g.
R.
    v. Folino
;
R. v. El-Jamel
, 2010 ONCA 575, 261 C.C.C. (3d) 293.

[48]

In
Folino
, the victim was an undercover police officer posing as a
    13-year-old girl. The offence took place over a 19-day period, and involved six
    Internet chats and eight emails. In
El-Jamel
, the appellant had
    sexually explicit chats with a police officer, believing she was 12 years old.
    The offence took place over a three-day period.

[49]

In
    contrast, this case involved a real victim  someone the respondent knew to be
    a naïve 12 year-old girl. He induced her to make and transmit pornographic
    pictures, insert items in her vagina, masturbate and participate in sexually
    explicit chats  all for his sexual gratification. He did this repeatedly, over
    a span of six months. In my view, his conduct was far more harmful than
    arranging a sexual encounter with an adult police officer believing she was a
    child.

Denunciation and deterrence

[50]

I
    agree with the Crowns submission that the objectives of denunciation and
    deterrence require a custodial sentence.

[51]

I
    appreciate that following a guilty plea, and in the absence of the victim, the
    sentencing hearing understandably focussed on the offender.

[52]

But
    a conditional sentence was not an appropriate outcome. I say this despite the
    respondents youth, remorse, prospects for rehabilitation and absence of threat
    to society. A custodial sentence is required to denounce his conduct and to
    make it clear to those who would use the Internet to abuse young children that
    such conduct has serious punitive consequences.

[53]

Unlike
    many of the child luring cases that come before the court, the respondents
    conduct was not simply preparatory to a crime, but amounted to distinct serious
    offences repeatedly committed on a 12 year-old child over a prolonged period of
    time.

[54]

Arguably,
    the most recent amendment to this offence imposing a mandatory minimum sentence
    for luring should require the appropriate range of sentences to be revised
    upward even further: see e.g.
Woodward
, at para. 58.

F.

Disposition

[55]

For
    these reasons, I would grant leave to appeal sentence, allow the appeal, and
    impose a sentence of two years less a day.  The appellant shall forthwith
    surrender into custody and the sentence begins when the respondent is taken
    into custody. The respondent is entitled to the general one-to-one credit for
    time served on his conditional sentence to the date of release of these
    reasons:
R. v. G.C.F.
(2004), 71 O.R. (3d) 771 (C.A.).  If necessary,
    a warrant may be issued for the respondents arrest.

G.R. Strathy C.J.O.

I agree P. Lauwers
    J.A.

I agree Speyer J. (
ad
    hoc
)

Released:
November 12, 2015


