



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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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(iii)     REPEALED: S.C.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    that could identify the victim shall not be published in any document or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. Joseph, 2020 ONCA 733

DATE: 20201119

DOCKET: C65085 & C65860

Brown, Trotter and Paciocco
    JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Steevenson Joseph

Respondent

Vallery Bayly and Craig Harper, for the
    appellant

Andrew Bigioni and Mark C. Halfyard, for
    the respondent

Heard: September 15, 2020 by video conference

On appeal from the acquittals entered by
    Justice Colin McKinnon of the Superior Court of Justice, sitting with a jury,
    on February 9, 2018 and February 17, 2018, and the sentence, on the
    convictions, imposed on August 14, 2018, with reasons reported at 2018 ONSC
    4646, 415 C.R.R. (2d) 231.

The Court:


OVERVIEW

[1]

Steevenson Joseph, 21 years of age at the time
    of the offences, became engaged for profit in the sale of sexual services by three
    under-age females, CA (16 years of age), RD (15 years of age), and MM (15 years
    of age). He was charged with numerous offences and tried by jury.

[2]

CA and MM testified at trial. RD did not testify
    directly at the trial, but testimony that she gave at Mr. Josephs preliminary
    inquiry was admitted into evidence. The videos and transcripts of police
    interviews of each complainant were also admitted pursuant to s. 715.1.

[3]

After the trial, Mr. Joseph was convicted of:
    (1) receiving a financial benefit from sexual services provided by a minor, RD;
    (2) making and possessing child pornography in the form of photographs that Mr.
    Joseph took of RD for use in advertising her sexual services; (3) advertising the
    sexual services of RD and CA; and (4) procuring CA to sell sexual services,
    contrary to s. 286.3(1) of the
Criminal

Code
. As
    explained in more detail below, this last conviction must reflect the jurys reasonable
    doubt as to the state of Mr. Josephs knowledge that CA was under-age.

[4]

Mr. Joseph was acquitted of five other charges
    under s. 286.3 of the
Criminal

Code
. Those counts
    alleged that Mr. Joseph procured RD and MM to provide sexual services and
    harboured each of the three young women for the purpose of facilitating the
    sale of their sexual services. Mr. Joseph was also acquitted of sexually
    assaulting and sexually interfering with MM.

[5]

After a sentencing hearing, the trial judge
    found Mr. Joseph to be a naïve and youthful first-offender who committed a
    lapse in judgment by getting involved in the sexual services business at a low
    point in his life. The trial judge described the offences as benign and found
    that Mr. Joseph had suffered irreparable damage from unfair publicity
    generated by the investigating police force.

[6]

During the sentencing hearing, the Crown attempted
    to enforce mandatory minimum sentences for Mr. Josephs crimes against RD: two
    years of imprisonment for the financial benefits offence, pursuant to s. 286.2(2)
    of the
Criminal

Code
, and a further one year of
    imprisonment for making child pornography, pursuant to s. 163.1(2) of the
Criminal

Code
. The trial judge accepted Mr. Josephs challenges to these
    mandatory minimum sentences, finding that they constitute cruel and unusual
    punishment, contrary to s. 12 of the
Canadian Charter of Rights and
    Freedoms
. He declared them to be of no force or effect and ultimately
    concluded, after finding that Mr. Joseph was entitled to a credit of nine months
    for presentence bail conditions, that the fit sentence was a one-year suspended
    sentence.

[7]

This is a Crown appeal. The Crown requests that the
    acquittals be set aside, and a retrial ordered on the four s. 286.3 charges related
    to RD and MM, arguing that the trial judge erred in defining the terms
    procure and harbour. The Crown also seeks leave to appeal the sentence
    imposed, including the declarations that the mandatory minimum sentences under
    ss. 286.2(2) and 163.1(2) are of no force or effect.

[8]

For reasons that follow, we allow the conviction
    appeal and order a new trial on the s. 286.3(2) charges relating to RD and MM.

[9]

We also grant leave to appeal the sentence. We
    dismiss the appeal relating to the constitutional validity of ss. 286.2(2) and
    163.1(2) and affirm the declarations of invalidity made by the trial judge
    pursuant to s. 52 of the
Constitution

Act
, 1982
. However,
    we allow the sentence appeal based on errors of principle made by the trial
    judge in sentencing Mr. Joseph. We substitute a global sentence of 15 months of
    imprisonment on the charges for which he was convicted, to be followed by 18
    months of probation.

MATERIAL FACTS

[10]

For personal reasons, Mr. Joseph, who had been
    living with his father and step-mother, ended up living on his own. His
    girlfriend of two years broke up with him. He testified that he was depressed
    and lonely, testimony that the trial judge accepted during the sentencing
    hearing.

[11]

While at a shopping mall in May 2015, Mr. Joseph
    noticed and was attracted to CA. He testified that she looked 20 or 21. He
    struck up a conversation with her. The two exchanged phone numbers and
    communicated for a number of days.

A.

The Crown Case

[12]

CA testified that, during a text conversation on
    June 2, 2015, Mr. Joseph asked her if she was interested in making money. She
    was. He paid for her to come to his home by taxi so they could discuss the
    personal business that he claimed to operate. In the conversation that
    followed, Mr. Joseph asked CA how old she was. She lied and said that she was
    18. He explained that she could make money selling sexual services. He told her
    how much she could earn and how the business worked, including advertising and
    having sex with callers, either at his house or at a hotel. He told her it was
    her choice and that he did not want to force her and invited her to think about
    it. At first, CA, who knew nothing about the sexual services business, was
    unsure.

[13]

CA testified that, after a few days, she and Mr.
    Joseph met and had sex at a hotel. At that time, she told him that she did not
    want to take up his offer, but two or three days later she texted him and said
    she was down to do it as she needed the money. Mr. Joseph asked her if she
    was sure and she said she was.

[14]

When CA next went to Mr. Josephs apartment, she
    brought her friend, RD, who was 15 years old at the time. CA testified that RD accompanied
    her to Mr. Josephs apartment after CA told RD that she was going to work with Mr.
    Joseph to make money as a sex worker. RD said, Okay, me too. Im gonna come
    with you. RDs evidence was somewhat different. She said that CA had been
    talking a great deal about Mr. Joseph and encouraged her to come, and that she
    agreed to go and check it out, thinking if I dont like it then Ill just
    not do it.

[15]

When RD and CA arrived at Mr. Josephs apartment,
    Mr. Joseph and three of his friends were present. CA and RD agree in their
    testimony that the subject of RDs age was discussed. CA testified that she
    told Mr. Joseph that RD was 17 years old and that he replied, I wouldnt let
    her do that. CA then told Mr. Joseph that RD was going to turn 18 years of age
    later that week. Once again, RDs testimony is somewhat different. RD said that
    when they first met, she told Mr. Joseph that she was 18 years old. According
    to RD, it was only later, after Mr. Joseph discovered that the young women had
    been lying to him, that Mr. Joseph was told that RD was 17 years of age,
    turning 18 in a few days. She confirmed that she continued to offer sexual
    services after that conversation.

[16]

CA and RD also agree in their testimony that the
    topic of the sale of sexual services came up in the presence of Mr. Josephs
    friends. Mr. Joseph and the other young men discussed how the business operated
    with CA and RD. This included telling CA and RD that they needed to have their
    pictures taken for an advertisement, so that people would call to arrange sex in
    exchange for money. CA was under the impression that this was Mr. Josephs
    first time in the business, because his friends were telling [her and RD] more
    about the business thing, so I thought maybe they just trying to show him how
    things work.

[17]

RD testified that she was nervous, and that CA
    took her to another room and explained to her what was going on and how to act.
    CA told her to get ready to have their pictures taken without their faces
    showing. RD said she did not want to do it, but CA told her it was for the
    money.

[18]

Sexualized photographs were taken that day. It
    is unclear on the evidence whether Mr. Joseph participated or whether those
    photographs were taken exclusively by his friends. However, both CA and RD agree
    that Mr. Joseph took additional photographs of them when they returned to his apartment
    the next day. The photographs depicted CA and RD, with their heads cropped, wearing
    underwear and posing in a sexually suggestive manner, and featured their
    private parts. Mr. Joseph used some of these photographs to advertise their
    sexual services on an internet site.

[19]

RD testified that, when Mr. Joseph told them he
    had received a call, he told them what they should do when a client arrived,
    including answering the door, taking the money, and providing the sexual
    service requested. He said he would be in the washroom when clients were
    present and, if a client asked to use the washroom, they were to tell the
    client it was locked and that the landlord needed to come to open it.

[20]

Both CA and RDs evidence was that, over the
    next several days, they provided sexual services to men for money. Mr. Joseph communicated
    with the men, set the prices for the sexual services, and booked the clients. The
    arrangement was that CA and RD were to give the money to Mr. Joseph. They did
    so except on one occasion when RD kept some of the money for herself.

[21]

After the first occasion, CA went into the
    bathroom and cried. During the week that she was selling her sexual services, Mr.
    Joseph also had sex with CA several times.

[22]

On or about the fourth or the fifth day, CA and RD
    brought a friend from school, AH, to Mr. Josephs house. RD provided evidence
    as to her belief that AH was 15 years old at the time. CA and RD had told AH
    what they were involved in, and AH said she was interested in making money. RD said
    that CA asked Mr. Joseph if they could introduce him to AH and he agreed. On
    the bus ride over to Mr. Josephs apartment, CA and RD explained to AH how the
    business worked. They agreed to lie to Mr. Joseph, telling him AH was 18. Mr.
    Joseph took sexualized pictures of AH. No admissible evidence was led that AH
    engaged in sex for money.

[23]

MM testified that AH told her about Mr. Josephs
    business and that she could make money fast. MM, who was 15 years old at the
    time, took the initiative of befriending Mr. Joseph on Facebook. Their chats
    were flirtatious and the two exchanged sexualized photographs. MM testified
    that she told Mr. Joseph she was 16, turning 17, though it is not clear on the
    evidence when this is alleged to have occurred.

[24]

MM testified that, on June 16, 2015, AH, who was
    visiting Mr. Joseph, texted MM to come over and she did so. Mr. Joseph met her
    at the bus stop. During that visit, Mr. Joseph told MM about the money that
    could be made selling sexual services. In text messages exchanged between them later
    that day, MM proposed bringing a gorgeous friend who wants to make money too.

[25]

CA and RD testified that Mr. Joseph had been
    expecting them to come to his apartment and provide sexual services on June 17,
    2015, but they had decided that they would no longer work for him. Although
    they found him to be nice, they were frustrated that Mr. Joseph was keeping
    the money, and had decided to work selling sexual services for a friend of RDs.
    They did not tell Mr. Joseph this.

[26]

MM testified that she visited Mr. Joseph that
    morning, on her own. She and Mr. Joseph had sex, which MM described as
    consensual. MM testified that, either before or after sex, they talked more
    about the sex trafficking business, a topic that she raised. She asked
    questions and he answered them. She agreed with defence counsels suggestion
    that before arriving that morning she was interested in trying the business. She
    testified that, from the questions she had been asking, Mr. Joseph would have
    known this. Ultimately, Mr. Joseph told MM that he had a client that wanted to
    come over but that the girl that was supposed to sell sexual services to the
    client had not shown up. He asked her if she would be down to, like, do it.

[27]

MM stated, I was still kind of hesitating in the
    beginning because like I, eh, I wasnt too, too comfortable doing that. She said
    she asked Mr. Joseph further questions, including what would happen if the
    client became aggressive. Mr. Joseph told her that he would be outside and that
    she could text him. She asked about what she should do if it was the cops. He
    assured her that most likely it wont happen. She agreed to sell sexual
    services to the client, and Mr. Joseph said he would go and get condoms. She
    testified that Mr. Joseph appeared to be very nice and laid-back and that she
    made the decision on her own.

[28]

In fact, the client that arrived, and that MM admitted
    into the apartment, was an officer, from the Ottawa Police, who was part of a
    province-wide human trafficking investigation, Project Northern Spotlight.
    When Mr. Joseph returned to the apartment, he was arrested. CA and RD came by
    the apartment to pick up their belongings while the police were there. MM, CA,
    and RD were each interviewed, leading to the charges against Mr. Joseph.

B.

The Directed Verdict

[29]

At the end of the Crowns case, Mr. Joseph
    sought and obtained a directed verdict of acquittal with respect to the s.
    286.3 charges relating to MM. These s. 286.3 charges alleged that Mr. Joseph
    procured MM, a person under the age of 18 years, to provide sexual services for
    consideration (count 6) and harboured her for the purpose of facilitating the
    offence of obtaining sexual services for consideration (count 7).

[30]

In his directed verdict decision, the trial
    judge concluded that at the end of the day, procure means to cause someone to
    do something through reasoning or argument. He held that it would be
    impossible for a jury, given this definition, to find that Mr. Joseph procured MM.

[31]

The trial judge interpreted harbour as meaning
    to clandestinely or secretly shelter and protect. He held that there was no
    evidence that Mr. Joseph secretly sheltered or protected MM, and that it was
    therefore impossible for a properly instructed jury to convict on this charge.

C.

Evidence of Mr.
    Joseph

[32]

Mr. Joseph testified. He denied encouraging CA, RD,
    or MM to provide sexual services for consideration. His testimony contradicted
    key features of the Crowns case.

[33]

He testified that it was CA who raised the issue
    of sex work, telling him that she planned to go to another city with a friend
    to work as a sex worker. Since she was persistently talking about needing money,
    and he had learned about the business from a friend who was a sex worker, he
    offered to help her set up business in Ottawa.

[34]

He said that there was never any discussion
    with RD about how the business is conducted, and that he was never told that RD
    was 17, going on 18. He had been told, all along, that RD was 18. She appeared,
    to him, to be an adult woman.

[35]

Mr. Joseph testified that, when he took the
    photographs and posted the advertisements, he was helping CA and RD, and
    believed that what he was doing was legal. He said that while he initially did
    not profit from doing so, he began receiving some of the money after more
    people started coming around. He used the money he received for expenses,
    including the advertisements and food and alcohol for CA and RD.

[36]

Mr. Josephs testimony does not depart
    materially from MMs evidence with the exception of her claim that she told him
    she was 16, going on 17. He insisted that AH told him that MM was 18, that MM
    confirmed this, and that at one point he asked MM for identification. She did
    not produce any. Mr. Joseph said that he continued to believe that she was 18
    because she looked 18 and he is, by nature, gullible. In an earlier police-statement,
    Mr. Joseph said that his gut told him she was not 18, but he later testified
    that he was overwhelmed when he said this.

D.

The Jury Direction
    and the Verdicts

[37]

All of the procuring and harbouring charges
    against Mr. Joseph were laid pursuant to s. 286.3(2), applicable where the
    complainant is under 18 years of age. Conviction of a s. 286.3(2) offence
    carries a mandatory minimum sentence of five years.

[38]

Over the Crowns continued objections, the trial
    judge directed the jury on the meanings of procure and harbour consistently
    with the definitions he had adopted in his directed verdict decision. He also
    instructed the jury, as agreed by the parties, that to convict Mr. Joseph
    contrary to s. 286.3(2), the Crown must prove [t]hat Mr. Joseph failed to take
    all reasonable steps to ascertain the ages of the complainants as being over
    the age of 18 years.

[39]

The jury acquitted Mr. Joseph of the s. 286.3(2)
    procuring and harbouring charges involving RD (counts 4 and 5), and the s.
    286.3(2) harbouring charge involving CA (count 3). On count 2, the jury
    acquitted Mr. Joseph of the offence of procuring CA contrary to s. 286.3(2), but
    convicted him of the included offence of procuring CA contrary to s. 286.3(1),
    which makes no reference to age. It necessarily follows, given the jurys count
    2 finding, that the jury was not satisfied that the Crown had proven beyond a
    reasonable doubt that Mr. Joseph had failed to take reasonable steps to
    ascertain CAs age.

[40]

The jury also found Mr. Joseph guilty of receiving
    a financial benefit, contrary to s. 286.2(2) of the
Criminal

Code

(count 1). The trial judge had directed the jury that to convict on this
    count it had to find that Mr. Joseph knew [that the financial benefit] was
    obtained by the purchase of sexual services of persons under the age of 18
    years, and that Mr. Joseph failed to take all reasonable steps to ascertain the
    ages of the complainants.
[1]
Given the jurys doubts regarding whether Mr. Joseph took reasonable steps to
    determine CAs age, reflected in its verdict on count 2, the conviction on this
    charge cannot be in relation to CA. It follows that the jurys finding of guilt
    on this charge was based solely on the benefits that Mr. Joseph received from
    the sale of sexual services by RD.

[41]

What finding did the jury make about Mr.
    Josephs mental state relating to RDs age, a relevant sentencing consideration?
    The trial judge inferred that instead of finding that Mr. Joseph knew that RD
    was under 18, the jury was satisfied that Mr. Joseph had not taken reasonable
    steps to determine RDs age, and he ultimately sentenced Mr. Joseph on that
    basis. Put otherwise, the trial judge inferred that Mr. Joseph did not
    knowingly receive a financial benefit from the sale of sexual services by a
    minor, but had the lesser degree of culpability of failing to exercise the due
    diligence in ascertaining her age that the law requires before a mistaken
    belief in age defence can succeed.
[2]


[42]

The jury also found Mr. Joseph guilty of making
    child pornography, contrary to s. 163.1(2) (count 9), and possessing child
    pornography, contrary to s. 163.1(4) (count 10), based on the sexualized photographs
    taken by Mr. Joseph and used in the advertisements. These convictions could not
    have included the photographs of CA, given the jurys doubts, implicit in the count
    2 verdict, as to Mr. Josephs knowledge of CAs age. Since the evidence of AHs
    age was hearsay, we accept the trial judges finding that the jury found Mr.
    Joseph guilty of the child pornography charges based solely on the photographs
    of RD. Once again, given the trial judges findings, these convictions must be regarded
    as flowing from Mr. Josephs failure to take reasonable steps to determine RDs
    age.

[43]

The jury also found Mr. Joseph guilty of
    advertising sexual services for consideration, contrary to s. 286.4 of the
Criminal

Code
(count 8). The age of the complainants was not an element of
    this charge, and so this conviction relates to both CA and RD.

[44]

The jury found Mr. Joseph not guilty of sexual
    assault against MM (count 11) and not guilty of sexually interfering with MM
    (count 12). There was no issue that Mr. Joseph had sex with MM and that, given that
    she was only 15-years old, MM was not legally capable of consenting: see
Criminal

Code
, ss. 150.1, and 273.1. Based on the jury charge that was
    given, it is implicit in these acquittals that the jury was not persuaded that Mr.
    Joseph failed to take reasonable steps to determine her age.

E.

The Mandatory
    Minimum Sentence Challenges

[45]

The trial judge granted Mr. Josephs challenges
    under s. 12 of the
Charter
. He declared the mandatory minimum sentence
    in s. 286.2(2) of the
Criminal

Code
,

of two
    years of imprisonment for receiving a material benefit from an offence under s.
    286.1(2), to be of no force or effect. He also declared the mandatory minimum
    sentence of one year of imprisonment under s. 163.1(2) of the
Criminal

Code
,

for making child pornography, to be of no force or
    effect.

[46]

Both dispositions were predicated, in part, upon
    reasonable hypotheticals in which the trial judge found that the imposition
    of these mandatory minimum sentences would be grossly disproportionate having
    regard to the nature of the offences and the circumstances of the hypothetical offender.

[47]

As explained immediately below, after giving Mr.
    Joseph a sentencing credit of 9 months because of the oppressive terms of his
    bail release, the trial judge concluded that a suspended sentence was fit. On
    this basis, he also found the mandatory minimum sentences grossly
    disproportionate when applied to Mr. Joseph.

[48]

The trial judge concluded that s. 1 could not be
    applied because the mandatory minimum sentences lacked proportionality.

F.

The Sentence Imposed

[49]

The trial judge imposed a suspended sentence of
    one year, concurrent on all counts, requiring Mr. Joseph to report to a
    probation officer and not communicate with CA, RD, or MM. Three factors were
    central to the trial judges reasoning.

[50]

The first factor was the trial judges assessment
    of the seriousness of the offences and the degree of responsibility of Mr.
    Joseph. He described the offences as at the lowest end of the spectrum and the
    least serious conduct he had witnessed in the context of prostitution and
    child pornography cases. This view was made clear during the trial on at least
    three further occasions. First, he described the allegations as being as
    benign as it gets. Second, he expressed his discomfort with the notion that the
    photographs of the teenagers in their underwear constituted child pornography.
    Third, he refused to limit public access to those images, commenting that the
    complainants had allowed the images to be posted, and that, as they had already
    been online, no harm would arise if they were not kept under seal.

[51]

In characterizing the seriousness of the
    offences, the trial judge also mentioned, in his sentencing decision, that Mr.
    Joseph made very little money and had not used manipulative or oppressive tactics
    to recruit CA and RD: Both agreed that that their involvement with Mr. Joseph
    was voluntary, and they were free to cease engaging in prostitution should they
    choose. He noted, as well, that they had stopped working for Mr. Joseph, no
    victim impact statements had been filed, and CA was progressing well in life.
    The trial judge noted that the last word relating to RD was that she was couch-surfing
    and had outstanding warrants for her arrest.

[52]

Meanwhile, the trial judge appeared to find Mr.
    Josephs level of moral blameworthiness to be low. He characterized Mr. Joseph
    as naïve, and his actions and failure to inquire into RDs age as a serious lapse
    of judgment that occurred during a low point in Mr. Josephs life when he was
    depressed and lonely.

[53]

Based on this reasoning, the trial judge
    sentenced Mr. Joseph proportionately given what he perceived to be offences at
    the lowest end of the spectrum for the charges laid.

[54]

The second factor was the trial judges finding
    that the profound effects of the charges on Mr. Joseph should serve to deter
    anyone who might be tempted to engage in similar activity. In coming to this
    conclusion, he featured post-arrest coverage by a newspaper and CBC News that linked
    Mr. Joseph to a province-wide sex trafficking probe and reported that the young
    women who worked for Mr. Joseph did so against their will and had been rescued
    by police. The trial judge described this coverage, for which the arresting
    police force bore responsibility, as highly inflammatory, exaggerated and
    unfair to Mr. Joseph. He stated: The digital footprint can never be erased.

[55]

The trial judge also referenced the
    heartbreaking video statement given by Mr. Joseph and commented that he had been
    emotionally and financially destroyed by the very serious charges brought
    against him due to a serious lapse in judgment occurring at a highly vulnerable
    time in his life.

[56]

Third, the trial judge found that Mr. Joseph had
    been under oppressive bail conditions that seriously adversely effected him.
    With the exception of 36 days of detention after he was charged with breaching
    his bail conditions,
[3]
Mr. Joseph was under house arrest from August 21, 2015 to May 16, 2016. On that
    later date, after a bail review, the house arrest conditions were replaced with
    a curfew. Initially, the curfew would have prevented Mr. Joseph from accepting
    an offer of evening employment, but it was varied some two months later to
    accommodate a job that Mr. Joseph had secured.

[57]

Mr. Joseph was also subject to other release conditions
    while on house arrest, including a prohibition on accessing any personal
    computer, cell phone or other electronic device capable of accessing the
    internet. He could not communicate with anyone under 18 unless in the presence
    of their parent or his father, who initially acted as his surety, and he had to
    report to the police. After his preliminary inquiry, his bail conditions were
    varied to permit him to live where he wished and to use a computer for work or
    school purposes.

[58]

During the period that Mr. Joseph was released
    on bail, the Crown ignored or was slow to respond to correspondence requesting
    variations. The trial judge set out this history in detail in his sentencing
    reasons.

[59]

Mr. Joseph testified that he had struggled to
    find employment because of these conditions. This, and the logistical
    challenges in reporting at the police station with his surety, caused him great
    stress. He also said that he was unable to cultivate normal relationships and
    felt guilty for burdening his family.

[60]

The trial judge gave Mr. Joseph the equivalent
    of nine months of credit for these oppressive bail conditions. Having done so,
    he imposed a suspended sentence.

THE ISSUES

[61]

The issues relating to both the conviction and
    sentencing appeals can conveniently be approached in the following order:

A.

Did the trial judge err in interpreting the term
    procures, and, if so, did this error have a material bearing on the
    acquittals on count 4 (RD) and count 6 (MM)?

B.

Did the trial judge err in interpreting the term
    harbours, relating to count 3 (CA), count 5 (RD), and count 7 (MM)?

C.

Did the trial judge commit errors of principle
    in sentencing Mr. Joseph, and, if so, what sentence is fit?

D.

Did the trial judge err in finding that the
    mandatory minimum sentence of two years of imprisonment provided for in s. 286.2(2)
    of the
Criminal

Code

is of no force or effect?

E.

Did the trial judge err in finding that the
    mandatory minimum sentence of one year of imprisonment provided for in s. 163.1(2)
    of the
Criminal

Code

is of no force or effect?

[62]

Based on the following analysis, we answer yes
    on the first two issues. We grant leave to appeal the sentence, and answer
    yes on issue C, but we answer no to issues D and E.

ANALYSIS

A.

d
id the trial
    judge err in interpreting the term procures, and, if so, did this error have
    a material bearing on the acquittals on count 4 (RD) and count 6 (MM)?

[63]

Section 286.3(2) of the
Criminal

Code
provides:

Everyone who procures a person under
    the age of 18 years to offer or provide sexual services for consideration or,
    for the purpose of facilitating an offence under subsection 286.1(2), recruits,
    holds, conceals or harbours a young person under the age of 18 who offers or provides
    sexual services for consideration, or exercises control, direction or influence
    over the movements of that person, is guilty of an indictable offence and
    liable to imprisonment for a term of not more than 14 years and to a minimum punishment
    of imprisonment for a term of five years.

[64]

In directing a verdict of acquittal on the s.
    286.3(2) charges involving MM, the trial judge interpreted procures as
    meaning to cause someone to do something through reasoning or argument.

[65]

The trial judge erred in doing so. The
    definition of procures that was adopted by the Supreme Court of Canada in
Deutsch
    v. The Queen
, [1986] 2 S.C.R. 2, relating to the now-repealed precursor
    offence of procuring someone for prostitution, continues to apply to s. 286.3:
R.
    v. Gallone
, 2019 ONCA 663, 147 O.R. (3d) 225, at para. 61. According to the
    definition expressed in
Deutsch
, at para. 32, procure means to cause,
    or to induce, or to have a persuasive effect upon the conduct that is alleged.
    These are three distinct ways of procuring. Procure is not confined to
    causing someone to do something, let alone causing them to do it through
    reasoning or argument.

[66]

We are not to overturn an acquittal unless we
    are persuaded with a reasonable degree of certainty that the trial judges
    error might reasonably be thought, in the concrete reality of the case at
    hand, to have had a material bearing on the acquittal:
R. v. Graveline
,
    2006 SCC 16, [2006] 1 S.C.R. 609, at paras. 14-15. We are persuaded that the
    trial judges error led to the directed verdict of acquittal on count 6.

[67]

Procuring someone to engage in even one act of
    selling or offering to sell their sexual services is an offence. In the
    concrete reality of this case, a correctly directed jury might reasonably have
    convicted Mr. Joseph of procurement relating to the offer MM made to Mr. Joseph
    to provide sexual services to the undercover officer. Specifically, Mr. Joseph
    proposed that MM sell sexual services to this client by asking her if she was
    interested, and there is evidence that, when she expressed concerns relating to
    her safety and her possible discovery by the police, he allayed those concerns.
    On this evidence alone, a finding that Mr. Joseph induced MM to agree to sell
    her sexual services, thereby procuring her, was entirely possible. The trial
    judge erred by directing a verdict of acquittal on count 6.

[68]

With respect to the acquittal of Mr. Joseph for
    allegedly procuring RD, count 4, it is the jury direction and not the directed
    verdict decision that is material. When instructing the jury on the meaning of
    procures with respect to the s. 286.3(2) charges involving both CA and RD, the
    trial judge said:

Procure means to intentionally cause, induce
    or persuade someone to do something. Persuade means to cause someone to do
    something through reasoning or argument. Intentionally cause means to make
    happen. Induce means to persuade.

[69]

The first sentence of this direction correctly
    reflects the
Deutsch

definition. The trial judge should have
    stopped there. In

Gallone
, at para. 75, Hoy A.C.J.O., as she
    then was, encouraged trial judges to stick to this definition, without
    elaboration. She did so with good reason. The trial judge fell into error in
    the elaboration he gave. By interpreting persuade as to cause someone to do
    something through reasoning or argument, an action that would already be
    caught by the term cause, the trial judge deprived persuade of meaning. He then
    deprived induce of meaning by defining it as meaning to persuade. He took
    three distinct modes of committing the offence and reduced them to one  to
    intentionally cause.

[70]

Appropriately, Mr. Joseph concedes that the
    trial judge erred. However, he argues that the error is harmless because it
    cannot reasonably be thought, in the concrete reality of the case at hand, to
    have had a material bearing on the acquittal. We disagree.

[71]

We do not accept Mr. Josephs submission that
    the inclusion of the
Deutsch

definition in the trial judges
    charge suggests that the jury reasoned properly. Given that the trial judge
    provided an erroneous explanation of what the elements of the
Deutsch

definition mean, no comfort can be taken from its inclusion.

[72]

Nor do we accept that, in convicting Mr. Joseph
    of procuring CA, the jury must have rested their decision on inducement or
    persuasion, showing that they were not misled by the trial judges erroneously
    narrow definition. On the evidence, a jury could well have found that Mr.
    Joseph intentionally caused CA to sell sexual services, the mode of
    commission that the trial judge invited the jury to use. Specifically, CAs
    evidence was that Mr. Joseph introduced her to the possibility of making the
    money she needed by selling sexual services. A jury could have concluded that,
    but for this act by Mr. Joseph, CA would not have sold the sexual services that
    she ultimately provided. In these circumstances, we reject the inference that
    the jury must have ignored the misdirection.

[73]

Since this ground of appeal cannot be rejected
    on the basis that the jury was not misled by the misdirection, the material
    question becomes whether the evidence relating to RD could realistically have
    supported a conviction, had the
Deutsch

definition been
    furnished to the jury without additional, erroneous explanation. We are
    persuaded that it could have. RD testified that when she first went to Mr.
    Josephs apartment, she had not yet decided whether to work for Mr. Joseph
    selling sexual services. She said that, after her arrival at his apartment, Mr.
    Joseph participated in discussions in which the business was explained. Mr.
    Joseph admitted in his testimony that he answered her questions. RD said in her
    s. 715.1 statement that Mr. Joseph even told her the business was legal when
    the proposed advertising was discussed. On this evidence, a jury could
    reasonably find that Mr. Joseph induced RD to work for him, selling sexual
    services.

B.

D
id the trial
    judge err in interpreting the term harbours, relating to count 3
(CA),
count 5
(RD),
and count
    7
(MM)?

[74]

We agree with the Crown that harbours includes
    to shelter. The trial judge interpreted harbours more narrowly, as
    requiring secrecy. He committed this error both in his directed verdict
    decision relating to MM (count 7), and in his jury direction relating to CA (count
    3) and RD (count 5).

[75]

Specifically, in his directed verdict decision,
    the trial judge defined harbours in s. 286.3 as to clandestinely or secretly
    shelter and protect. During argument, the trial judge repudiated the Crowns
    submission that harbours simply means to shelter, commenting that, given
    the seriousness of the offence and its penalty, the term must be confined to
    criminal harbouring rather than the very benign definitions of harbouring.
    He expressed the view that including the mere provision of shelter, which would
    include providing a safe place where sexual services could be transacted, within
    harbouring would not be consistent with the decision in
Canada (Attorney General)
    v. Bedford
, 2013 SCC 72, [2013] 3 S.C.R. 1101. In his ruling, the trial
    judge relied on dictionary definitions that he found spoke of secrecy,
    concealment, and hiding as representing the ordinary meaning of the term.

[76]

Consistent with the definition used in the
    directed verdict application, the trial judge directed the jury that harbours
    means to secretly shelter and protect. The jury subsequently asked for a more
    detailed definition. The trial judge told the jury that secretly shelter and
    protect means to hide them.

[77]

The governing modern principle of statutory
    interpretation is that the words of an Act are to be read in their entire
    context and in their grammatical and ordinary sense harmoniously with the
    scheme of the Act, the object of the Act, and the intention of Parliament:
Rizzo
    and Rizzo Shoes Ltd. (Re)
, [1998] 1 S.C.R. 27, at para. 21. Applying these
    principles, we are persuaded that the correct definition of harbours includes
    the simple provision of shelter, whether secretly or not.

[78]

To begin, the ordinary meaning of the term
    harbours cannot carry the weight the trial judge assigned it, since the term harbour
    carries more than one ordinary meaning. Contrary to the conclusion reached by
    the trial judge, in
R. v. DSouza
, 2016 ONSC 2749, 339 C.C.C. (3d)
    494, at para. 146, Conlan J. expressed the view that using the simplest
    language possible, harbour means to shelter. In
R. v. Anwar
, 2020
    ONCJ 103, 62 C.R. (7th) 402, at para. 127, McKay J. said that harbour means to
    give shelter or refuge. There is, therefore, controversy about the ordinary
    meaning of the term.

[79]

Although the ordinary meaning of a term may not
    be the same as its dictionary meaning, dictionary meanings can nonetheless be
    instructive in identifying ordinary meaning. The trial judge relied upon definitions
    that describe harbours as affording lodging or shelter to a fugitive, criminal,
    or illegal alien, including to receive secretly and conceal a fugitive from
    justice; to shelter or hide a criminal or wanted person; and to
    clandestinely shelter, succour and protect offenders against the law. He found
    that all of these definitions included a clandestine element in the words
    meaning.

[80]

However, other definitions, including the
    primary definition in some dictionaries, do not require or even connote
    secrecy. For example, the primary definition of harbour in the
Canadian Oxford Dictionary
, 2nd ed, is to
    give shelter to (esp. a criminal or wanted person). This definition recognizes
    the common connotation of concealment, but in no way requires concealment.
    Similarly, neither the primary definition of harbour in the
ITP Nelson Canadian Dictionary of the English Language
, 1998, [t]o give shelter to, nor its secondary definition, [t]o
    provide a place, home, or habitat for, require or even connote secrecy.

[81]

Hence, the ordinary meaning of the term
    harbours does not settle things. It is ambiguous. That ambiguity is resolved when
    its meaning is considered, as it must be, in the context of s. 286.3 of the
Criminal

Code
.

[82]

First, the French version of s. 286.3 uses the
    word héberge. This means to accommodate, to put up or to give shelter:
The
    New Collins Robert French Dictionary
, 5th ed.,
sub

verbo
héberger. Héberge does not carry a connotation of secrecy
: R. c.
    Leblanc
, 2018 QCCQ 6481, at paras. 59-77. Therefore, to import into s.
    286.3 the secrecy element that is occasionally included in the English term
    harbours would distort the French version of s. 286.3, which is equally
    authoritative. In contrast, omitting secrecy from the English term harbours
    would be consonant with the French term without distorting the equally
    authoritative English version. In these circumstances, the shared meaning
    rule of statutory interpretation, described in
R. v. Daoust
, 2004 SCC
    6, [2004] 1 S.C.R. 217, at para.30, requires that harbours be interpreted consistently
    with héberge, in other words, as meaning to shelter, whether secretly or
    not.

[83]

Second, s. 286.3 provides for a range of conduct
    that is criminal when undertaken for the purpose of facilitating an offence
    under s. 286.1. One of those modes of commission occurs if a person conceals another.
    A person who secretly shelters another is necessarily concealing them. Therefore,
    if the term harbours included only the provision of secret shelter, it would
    add nothing to s. 286.3, contrary to the presumption against tautology.

[84]

Mr. Joseph submits that the associated words
    rule produces the opposite result. The principle relating to associated words,
    affirmed in
R. v. Goulis
(1981), 125 D.L.R. (3d) 137 (Ont. C.A.), at p.
    142,

holds that [w]hen two or more words which are susceptible of
    analogous meanings are coupled together they are understood to be used in their
    cognate sense. Mr. Joseph urges that the words conceal and harbour are frequently
    associated in the
Criminal

Code

and must give each
    other meaning. The trial judge engaged in similar reasoning in his directed
    verdict ruling, inferring that other sections in the
Criminal

Code

that use the word harbour support giving that term clandestine meaning.

[85]

Without intending to settle the meaning of other
    provisions of the
Criminal

Code

where the words harbour
    and conceal are used in the same provision, this reasoning is problematic in
    the context of s. 286.3, for two reasons. First, as
Goulis

itself
    illustrates, the associated words rule operates to assign meaning to each of
    two associated words. It does not operate to make one of those associated words
    meaningless within the section, as importing secrecy into the term harbour
    would do. Second, this court already determined in
Gallone
, at para. 69,
    that the modes of commission identified in s. 286.3 are to be read
    disjunctively, not in association. The rule against redundancy governs, and
    supports giving harbour the broader meaning of to shelter.

[86]

Third, a purposive interpretation of s. 286.3 does
    not favour a secrecy requirement, as the trial judge concluded. As we will
    explain shortly, a purposive interpretation in fact favours reading harbour
    as including the provision of shelter, whether secretly or not.

[87]

It is instructive to begin, however, with the
    trial judges reasoning. In concluding that a purposive interpretation of s.
    286.3 requires a secrecy requirement, the trial judge expressed concern that if
    harbour included the simple provision of shelter, it would criminalize the
    laudable activity of providing a safe place where sex workers can engage in lawful
    sex work, contrary to the objective outlined in
Bedford
.

[88]

We are not persuaded that interpreting harbour
    in this way leads to this outcome. As the Crown points out, harbouring is only
    an offence if it is done for the purpose of facilitating an offence under
    subsection 286.1. A purpose requirement imposes a high specific intent
mens

rea
:
R. v. Khawaja
, 2012 SCC 69, [2012] 3 S.C.R.
    555, at paras. 45-47;
R. v. Legare
, 2009 SCC 56, [2009] 3 S.C.R. 551,
    at para. 32. More than knowing facilitation is required: the accused must
specifically
    intend
his actions to have this general effect (emphasis in original):
Khawaja
,
    at para. 46; see also
R. v. Briscoe
, 2010 SCC 13, [2010] 1 S.C.R. 411,
    at paras. 16-18. In the case of s. 286.3, that general effect is the effect of facilitating
    an offence under subsection 286.1:
R. v. Boodhoo and others
, 2018
    ONSC 7205, at paras. 32-33;
R. v. Antoine
, 2019 ONSC 3843, at para. 40.

[89]

McLachlin C.J. explained in
Khawaja
, at
    paras. 44-53, that the purpose
mens

rea

worked to
    prevent s. 83.18 of the
Criminal

Code
, a participation
    in the activity of a terrorist group offence, from exceeding its purpose by punishing
    individuals for innocent, socially useful or casual acts which, absent any
    intent, indirectly contribute to a terrorist activity. The same holds true for
    s. 286.3. Its purpose
mens

rea
prevents the
    conviction of those who would provide safe shelter to a sex worker without the
    intention of facilitating an offence under s. 286.1(1) or s. 286.1(2). Simply
    put, the concern that generated the trial judges conclusion that a purposive
    interpretation of s. 286.3 requires a secrecy requirement does not exist.

[90]

What, then, is the purpose of s. 286.3? It is
    the same purpose that underpins all commodification of sexual services
    offences, as described in the Department of Justice,
Technical Paper  Bill
    C-36
(Ottawa: Department of Justice, 2014), at pp. 3-9. Parliament enacted
    these provisions in order to eradicate prostitution to the extent possible
    while largely immunizing the sellers from prosecution. Criminalizing the
    provision by third parties of shelter, when this is being done for the purpose
    of facilitating an offence under s. 286.1(1) or s. 286.1(2), is consistent with
    this purpose. On the other hand, it is difficult to imagine why Parliament
    would permit a person, for the purpose of facilitating an offence contrary to
    s. 286.1, to provide a place where that offence can occur, so long as this is
    done openly and not secretly.

[91]

We are, therefore, persuaded that the trial
    judge misdirected the jury as to the meaning of harbours. This error was material
    to the acquittals entered on counts 3 (CA) and 5 (RD). It was not contentious
    at trial that, as part of his business plan, Mr. Joseph arranged for CA and RD to
    sell sexual services from his apartment. A jury could find that this satisfied
    the term harbours. Further, Mr. Joseph conceded at trial that if the jury found
    that he harboured CA or RD, he had done so for the purpose of facilitating an
    offence under s. 286.1.

[92]

The trial judge also erred in interpreting
    harbours in his directed verdict decision relating to MM (count 7). That
    error also mattered. Although the sale of sexual services by MM was not
    consummated, there was clear evidence that Mr. Joseph provided MM with a place from
    which she would sell sexual services to the officer, and that this was done for
    the purpose of facilitating an offence under s. 286.1.

C.

D
id the trial
    judge commit errors of principle in sentencing Mr. Joseph, and, if so, what
    sentence is fit
?

[93]

The trial judge committed errors of principle in
    sentencing Mr. Joseph. These errors had an impact on the global sentence that the
    trial judge imposed and therefore justify our intervention:
R. v. Lacasse
,
    2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 41. Specifically, he erred: (1) in
    characterizing the seriousness or gravity of the offences he was sentencing and
    in situating Mr. Josephs degree of responsibility; (2) by placing undue weight
    on the bail conditions that had been imposed on Mr. Joseph; and (3) by relying
    on publicity to find a reduced need for general deterrence. We would set aside
    the sentence imposed by the trial judge. A fit sentence would be a global
    sentence of 15 months of incarceration, followed by 18 months of probation.

(1)

Mischaracterizing the Seriousness of the
    Offences and the Degree of Responsibility

[94]

We agree with the Crown that the trial judge erred
    by failing to appreciate the seriousness or gravity of the offences he was
    sentencing, and in situating Mr. Josephs degree of responsibility. We will
    begin with the sexual commodification offences.

[95]

As this court recognized in
Gallone
, at
    paras. 91-93, Parliament has chosen to treat the commodification of sexual
    services as criminal on the basis that prostitution is inherently exploitive
    and those who sell their own sexual services [are] victims who need support
    and assistance, rather than blame and punishment. In his sentencing decision,
    the trial judge does not reflect an appreciation of this. Instead of treating
    the offences as inherently exploitive, with CA and RD as victims, the trial
    judge evaluated CA and RDs degree of responsibility when situating the
    seriousness of what Mr. Joseph had done.

[96]

Specifically, the trial judge described how CA
    and RD each made voluntary decisions to sell their sexual services, and he
    noted that CA had criticized Mr. Joseph for not generating enough business, and
    that RD was anxious to get involved. Although Mr. Joseph was not convicted of
    offences involving MM, in comments he made during the trial, the trial judge also
    described MM as keen and challenged the Crowns reliance on MMs
    vulnerability by commenting, inappropriately, that this was not [MMs] first
    rodeo.

[97]

In making the comments about CA and RD in his
    sentencing decision, the trial judge was not simply rehearsing neutral evidence.
    The trial judges particularization of the readiness of each of these young
    persons, including MM, to get involved makes it evident that he found the
    voluntariness of the complainants to be significant. It was not.

[98]

Nor was the trial judge merely noting the
    absence of coercion by Mr. Joseph, a relevant consideration in determining the
    seriousness of what Mr. Joseph did. Three facts drive this conclusion: the
    trial judge had already mentioned the absence of coercion before he described
    the conduct of CA and RD as voluntary; his comments about the readiness of CA
    and RD to get involved focussed not on Mr. Joseph but on the interest these victims
    had in selling their sexual services; and at no point did he speak of the offences
    as inherently exploitive. We are satisfied that the trial judge erred in
    principle by considering the responsibility of the victims in identifying the
    seriousness of the offences, and by failing to appreciate the true nature of
    the offences he was sentencing.

[99]

This error is aggravated by the fact that RD was
    a child. She was a 15-year-old and so, in law, incapable of consenting to the
    sexual activity that the sale of sexual services entails. Although a mistaken
    belief in age can lessen the degree of responsibility of the offender, it is
    wrong to treat the voluntariness of children to engage in sexual activity,
    including sexual transactions, as a material consideration in situating the
    seriousness of an offence:
R. v. Friesen
, 2020 SCC 9, 444 D.L.R. (4th)
    1, at paras. 151-153.

[100]

Although, as a 16-year-old, CA was not entirely incapable of
    consenting to sex, it is arguable that because of her age she was legally
    incapable of consenting to sex in exchange for money. Pursuant to s. 153, a
    16-year-old is incapable of consenting to sexual activity within an exploitive
    relationship. The relationship between the person who obtains sexual services
    for consideration and the sex worker is one that Parliament has chosen to treat
    as inherently exploitive. It is therefore possible that even CA could not
    consent to what was transpiring. However, we need not decide this question to
    make the critical point. The trial judge should not have treated the voluntary participation
    of the complainants, including CA, as reducing the seriousness of the offences.

[101]

The trial judge failed, as well, to convey an understanding of the
    seriousness of the child pornography that Mr. Joseph made. Two events during
    the trial reflect his belief that the child pornography offence that Mr. Joseph
    was ultimately convicted of was anything but serious. First, during argument,
    he expressed discomfort with the fact that these photographs even qualify as
    child pornography. Second, he refused the Crowns request to limit public
    access to the photographs during the trial. He commented that if they were the
    kind of child pornography that we normally call child pornography he would
    exclude the public, but there would be no harm, in my view, by showing these
    photographs when, when they were on Back Page anyway and these young women
    allowed it.

[102]

This latter episode is troubling. It is another instance of the
    inappropriate assignment of responsibility to children for their own sexual
    exploitation. In addition, if these images proved to be child pornography (as
    they ultimately did) the trial judges decision would result in the unnecessary
    publication of child pornography. The trial judge should have ordered that the
    images not be publicly displayed during the trial. But that is an aside, albeit
    an important one. The instant point is that these two episodes reflect what is
    apparent in the sentencing decision itself. When judging the seriousness of the
    offence, the trial judge erred by focusing only on how shocking the images themselves
    were. What made the child pornography offence serious was not how revealing or
    graphic the images were, but that, by design, they depicted RD, a child, as
    sexually available, and that they were created by Mr. Joseph for his own
    profit, an aggravating circumstance pursuant to s. 163.1(4.3) of the
Criminal

Code
. Neither or these considerations found expression in the
    trial judges reasons for sentence. As a result, he erred in his assessment of
    the seriousness of the child pornography offence.

[103]

Unfortunately, there are many commodification of sexual services
    offences and many child pornography offences that are more serious than those Mr.
    Joseph was convicted of committing. The trial judge was correct in noting that the
    offences Mr. Joseph committed did not include the common aggravating features
    of coercion, violence or intimidation and implying that, in relative terms, the
    images of RD were not shocking, as many such images are. However, it was wrong for
    the trial judge to use the word benign when referring to these offences, even
    when speaking in relative terms.

[104]

In addition to failing to appreciate the seriousness or gravity of
    the offences he was sentencing, the trial judge understated Mr. Josephs degree
    of responsibility for those offences. Even giving due deference to the trial
    judges acceptance that Mr. Joseph was depressed, struggling, and naïve, the
    trial judge was wrong to conceive of Mr. Josephs commission of these offences
    as a serious lapse of judgment. Mr. Joseph made a considered decision to embark
    upon an escort business by using the sexual services of young persons for his
    own profit. In CAs case, he knew she was young and in need of money, and, in RDs
    case, he failed to even take reasonable steps to determine her age. The
    enterprise was carried out over the course of a week and ended only when CA and
    RD quit. Mr. Joseph caused CA to sell her sexual services, and provided RD, a
    15-year-old, with the opportunity to work as a sex worker, for close to a week.
    These are serious crimes.

[105]

The errors in principle by the trial judge in assessing both the
    seriousness of the offences and Mr. Josephs degree of responsibility had an
    obvious impact on the sentences imposed. These errors distorted the trial
    judges proportionality assessment pursuant to s. 718.1 of the
Criminal

Code
, a major driver in ascribing a fit sentence.

[106]

Moreover, the offences against RD involved the exploitation of a
    child. The trial judge was therefore obliged, pursuant to s. 718.01 of the
Criminal

Code
, to emphasize denunciation and deterrence in sentencing Mr.
    Joseph. The trial judges decision shows a careful focus on Mr. Josephs rehabilitative
    potential and demonstrates commendable attention in attempting to gauge the
    impact of the sentence on Mr. Joseph. However, his reasoning, and the sentence
    imposed, do not reflect the prominence of the principles of denunciation and
    deterrence that the law requires. This, too, affected the sentence the trial
    judge imposed.

(2)

Placing Undue Weight on Bail Conditions

[107]

The trial judge gave Mr. Joseph the equivalent of nine months credit
    because of bail conditions that had been imposed on him pending trial. The
    trial judge did not say explicitly that without such credit he would have
    sentenced Mr. Joseph to nine months in custody instead of imposing a suspended
    sentence, but that is the implication. Otherwise, why would he have quantified
    the mitigation with such precision and described it as a credit? We are
    persuaded that in giving Mr. Joseph the equivalent of nine months credit, the
    trial judge placed unreasonable emphasis on Mr. Josephs bail conditions. Moreover,
    he erred in principle in assessing the mitigating effect of the bail conditions
    by considering their necessity. Mitigation for bail conditions is to be based
    on how punitive those conditions were, not how necessary they were.

[108]

The propriety of treating stringent bail conditions, especially
    house arrest, as a sentencing consideration was affirmed in
R. v. Downes

(2006), 205 C.C.C. (3d) 488 (Ont. C.A.), at para. 33. Although it is not
    uncommon to speak of providing credit for stringent bail conditions, pre-trial
    bail is conceptually a mitigating factor in assessing a fit sentence:
R.
    v. Panday
, (2006), 205 C.C.C. (3d) 488 (Ont. C.A.). Mitigation is given because
    stringent bail conditions can be punitive and therefore akin to custody:
Downes
,
    at para. 29. The criteria to be considered in assessing the weight of the mitigation
    to be given therefore include the amount of time spent on bail conditions; the
    stringency of those conditions; their impact on the offenders liberty; and the
    ability of the offender to carry on normal relationships, employment and
    activity:
R. v. Place
, 2020 ONCA 546, at para. 20. The mitigating effect
    that such considerations have on the sentence to be imposed falls within the
    discretion of the trial judge:
Downes
, at para. 37. However, where a
    trial judge places unreasonable emphasis on any mitigating factor, appellate
    intervention is warranted:
Lacasse
, at para. 49. The same holds true
    in the case of mitigation for strict bail conditions. We are persuaded that the
    trial judge exercised his discretion unreasonably when sentencing Mr. Joseph by
    giving excessive weight to the bail conditions he was under.

[109]

Mr. Joseph was under house arrest for approximately eight months:
    the time between August 21, 2015 and May 16, 2016, interrupted by 36 days of incarceration
    after Mr. Joseph was arrested for breach of recognizance. Mr. Joseph has
    already been credited for that time in custody on unrelated charges. The house
    arrest terms were not inordinate. The usual exceptions applied during the time that
    Mr. Joseph was experiencing house arrest, including for employment, education,
    and the medical needs of Mr. Joseph and his immediate family.

[110]

The curfew that followed was not onerous. It required Mr. Joseph to
    be at his residence between 7:00 p.m. and 6:00 a.m. The only unusual feature of
    the curfew is that it did not provide an exception for employment. After Mr.
    Joseph found employment that required evening work, albeit after some delay, the
    curfew was varied to begin at 10:00 p.m. Apparently, that delay did not cost Mr.
    Joseph his new job.

[111]

The balance of the bail conditions imposed were no doubt unpleasant
    and stressful, but they were not particularly stringent or punitive in nature,
    and they were further loosened in November 2016, when Mr. Joseph was discharged
    after his preliminary inquiry on the human trafficking charges. Although the
    trial judge found that the bail conditions affected Mr. Josephs physical and
    mental health and prevented him from advancing in life, during his release on
    bail Mr. Joseph was able to secure employment, develop a relationship with a
    woman, and have a child.

[112]

In the circumstances, we would not interfere with the decision to
    treat Mr. Josephs bail conditions as mitigating. However, granting Mr. Joseph
    credit for the equivalent of nine months of incarceration was so excessive as
    to be unreasonable. Credit may be given for stringent bail conditions other
    than house arrest, but house arrest is the most material condition. The mitigation
    Mr. Joseph received approximated 1:1 credit for the time he was under house
    arrest. The trial judge that decided
R. v. Fobister
,
2010 ONCA
    7 had given similar mitigation, prompting this court to comment, at para. 2,
    that the case law does not support credit at this level. The reason the case
    law does not do so is clear. Bail is not jail, even where house arrest is
    imposed, and it is an error to equate them:
Lacasse
, at para. 112;
R.
    v. Ijam
, 2007 ONCA 597, 87 O.R. (3d) 81, at para. 36; and see
Downes
,
    at paras. 26-28. Even bearing in mind the period during which Mr. Joseph was under
    curfew, and the effect and duration of the remaining conditions, the mitigation
    provided by the trial judge effectively treated bail as though it was jail.

[113]

The mitigation granted by the trial judge was not only excessive, the
    trial judge committed an error of principle in weighing the mitigation to be
    given. In his submissions, defence counsel focused on how unreasonable the bail
    release conditions were, and he criticized the Crowns conduct in opposing or
    ignoring requests for variation. In his Reasons for Sentence, the trial judge dealt
    extensively with failures by the Crown to accommodate variation requests. The
    trial judge paraphrased defence counsels argument as submitting that Mr.
    Joseph was either needlessly in custody or on strict bail conditions for over two
    and a half years. In determining that he would give Mr. Joseph a credit of
    nine months of equivalent custody, the trial judge expressed his agreement
    with this submission.

[114]

By considering the need for the bail conditions in evaluating the
    mitigation to be given, the trial judge erred in principle. The relevant inquiry
    is whether bail conditions were punitive enough to be akin to punishment,
    thereby warranting mitigation. Focus should therefore be on the effect of the
    conditions, not whether the Crown acted reasonably in promoting or perpetuating
    those conditions. The appropriateness of the bail conditions is not relevant,
    and it was an error for the trial judge to have considered it:
Place
,
    at para. 21.

(3)

Misusing Publicity to Reduce the Need for
    General Deterrence

[115]

There is controversy relating to the role that publicity should have
    in sentencing an offender: see
R. v. Zentner
, 2012 ABCA 332, 539 A.R.
    1, at paras. 36-51. We do not have to engage the appropriate use of publicity in
    depth in order to resolve this appeal. The issue can be addressed narrowly. It is
    an error in principle to rely on pretrial publicity to determine whether the
    need for general deterrence has been satisfied. The trial judge erred by using
    publicity for this purpose.

[116]

In
Zentner
, at para. 42, the Court of Appeal of Alberta
    commented that, although there is authority permitting publicity to be
    considered, authority for [publicity] as a relevant factor where general
    deterrence is necessary, is slim. As the
Zentner

court pointed
    out, at para. 46, using publicity to satisfy the need for general deterrence
    would undermine the general deterrence sentencing objective, since general
    deterrence is promoted through the publication of a deterrent criminal
    sanction. If the sentence is reduced because of pretrial publicity, the
    sentence will be less effective in achieving general deterrence.

[117]

Moreover, it will generally be unrealistic to ascribe general
    deterrent properties to the collateral consequences experienced by a specific
    offender. It is one thing to anticipate that the pattern of sentences imposed
    on others for a kind of criminal conduct will demonstrate to potential
    offenders that the cost of that kind of criminal conduct is too high. However,
    it is a bridge too far to anticipate that others will somehow learn of and
    consider the collateral consequences on another when deciding whether to engage
    in such conduct.

[118]

More importantly, using publicity as satisfying the need for general
    deterrence is contrary to principle. As a sentencing consideration, the adverse
    effects of publicity are a collateral consequence as defined in
R. v.
    Suter
, 2018 SCC 34, [2018] 2 S.C.R. 496. As Moldaver J. explained in
Suter
,
    at para. 47, the concept of collateral consequences includes any consequence
    arising from the commission of an offence, the conviction for an offence, or
    the sentence imposed for an offence, that impacts the offender, and which can
    encompass physical, emotional, social, or financial consequences. Publicity
    obviously qualifies as a collateral consequence.

[119]

Moldaver J. went on to describe the role that collateral
    consequences play in identifying a fit sentence. He said that collateral
    consequences are not necessarily aggravating or mitigating factors under
    s. 718.2(a) of the
Criminal

Code

, nor is their
    relevance tied to their impact on the offenders moral blameworthiness or the
    seriousness of the offence:
Suter
, at para. 48. They are relevant, if
    at all, in determining how the individual circumstances of the offence and the
    offender affect the appropriate individualized sentence:
Suter
, at para. 46.
    As Moldaver J. put it, at para. 48:

The question is whether the effect of those
    consequences means that a particular sentence would have a more significant
    effect on the offender because of his or her circumstances. Like offenders
    should be treated alike, and collateral consequences may mean that the offender
    is no longer like the others, rendering a given sentence unfit.

[120]

Of course, general deterrence has to do with the
    effect a sentence will have on others, not with whether a particular sentence
    would have a more significant effect on a specific offender. Put otherwise, trial
    judges are to use publicity, if at all, in determining the impact that publicity
    had on the personal circumstances of the offender, not in assessing whether
    general deterrence is required. It is a misuse of publicity, and hence an error
    in principle, to use collateral consequences such as publicity to offset the
    need for a deterrent sentence.

[121]

Yet this is how the trial judge used publicity
    in this case. In explaining that a suspended sentence was a fit sentence, he
    said: [T]he profound effects of the charges on Mr. Joseph should serve to
    deter anyone who might be tempted to engage in similar activity. In my view,
    the goal of deterrence to others has been achieved in this case. When he said
    this, the trial judge could only have been referring to the irreparable damage
    he found the publicity to have caused, as he had already credited Mr. Joseph with
    the equivalent of nine months of incarceration because of his oppressive bail
    conditions, the only other event he found to have had profound effects on Mr.
    Joseph. The trial judge therefore erred in using the adverse effects of
    publicity to satisfy the need for general deterrence.

[122]

Without question, this affected the suspended sentence
    the trial judge imposed.

(4)

A Fit Sentence

[123]

Because of the errors that occurred, and their
    impact on the sentence imposed, the considerable deference ordinarily owed to trial
    judges in determining the sentence does not apply:
Lacasse
, at paras.
    41-44. It falls to us to perform our own sentencing analysis to determine a fit
    sentence:
Lacasse
, at para. 43;
Friesen
, at para. 27. For the
    following reasons, we conclude that a fit sentence would be 15 months
    concurrent on each of the four charges that Mr. Joseph stands convicted of,
    followed by 18 months of probation on the terms imposed by the trial judge. A
    suspended sentence would not be a fit sentence.

[124]

The fundamental principle of sentencing
    identified in s. 718.1 of the
Criminal

Code
requires
    that a sentence be proportionate to the gravity of the offence and the degree
    of responsibility of the offender. A sentence must therefore be fit, both for
    the offence and the offender.

[125]

We have already described the circumstances and seriousness
    or gravity of the offences. The offences were serious, albeit approaching the
    lower end of the spectrum of seriousness for the grave crimes Mr. Joseph was
    convicted of committing.

[126]

Those crimes must also be taken to have had a
    significant impact on the complainants, their families and the community at
    large, even without victim impact statements having been filed. In
Friesen
,
    at paras. 75-76 and 80, Wagner C.J. and Rowe J. directed courts to recognize,
    in such cases, not only the actual harm proven to have been done to the
    immediate victims but also the potential harm that flows from such offences.
    This includes the serious risk of long-term harm that sexually exploited
    children are exposed to, as well as the consequential harm that the sexual
    exploitation of children has for the victims families, and the community.

[127]

We have already commented, as well, on Mr.
    Josephs degree of moral fault, a central consideration in assessing his degree
    of responsibility. With respect to his moral fault, we add that we do not
    accept the Crowns submission that Mr. Joseph bears the high moral
    blameworthiness described by Wagner C.J. and Rowe J. in
Friesen
, at para.
    90, that applies to those who intentionally sexually exploit and objectify
    children. The jury had a reasonable doubt about the state of Mr. Josephs knowledge
    relating to CAs age, and the trial judge, in a finding that has not been
    appealed, concluded that Mr. Josephs culpability relating to RD arose from his
    failure to take reasonable steps to confirm her age. Mr. Joseph therefore bears
    the moral fault of someone who intentionally chose to objectify and exploit the
    sexual dignity of young women he believed to be of age, reasonably in the case
    of CA, but negligently in the case of RD. Similarly, although his moral fault
    relating to the child pornography is heightened by his profit motive, he did
    not intend to create child pornography. He was negligent in doing so. To be
    clear, Mr. Josephs moral fault remains significant. The obligation to take
    reasonable steps before engaging youthful individuals in sexualized activity is
    a heavy one, and the failure to discharge that obligation is not to be taken
    lightly. Nonetheless, the significant moral fault that follows cannot be
    equated with the knowing exploitation of children.

[128]

Mr. Josephs moral fault is not aggravated by additional
    abusive behaviour towards the young women. He used no threats, force,
    intimidation or cruelty to advance his purpose.

[129]

However, notwithstanding the trial judges
    apparent suggestion to the contrary, Mr. Joseph does not benefit from the fact
    that his exploitation of CA and RD ended before his arrest. This is not a case
    where he saw the error of his ways. CA and RD left on their own accord.

[130]

No aggravating factors relating to Mr. Joseph, the
    offender, have been identified. There are mitigating factors. Specifically, we
    defer to the trial judges findings that the offences occurred during a period
    of stress and that Mr. Joseph was remorseful. We also bear in mind the
    important consideration that he is a youthful first offender.

[131]

We do not consider the bail conditions to have
    been as stringent as the trial judge found them to be but we agree that the
    conditions that required Mr. Joseph to be under house arrest for approximately
    eight months, as well as the curfew that followed, were stringent enough to mitigate
    Mr. Josephs sentence. These conditions operated punitively, and they impacted
    Mr. Josephs liberty, including during the brief period that the curfew impeded
    Mr. Josephs employment opportunities. The fit sentence we identify reflects
    this mitigation.

[132]

Unlike the trial judge, we give little weight to
    the pretrial publicity that Mr. Joseph experienced. Although the media coverage
    was inaccurate, it was not egregiously so. It had roots in reality. Even if the
    young women did not work against their will, RD and MM were both incapable, as
    15-year-olds, of providing consent to sexual activity and, as indicated, it is
    arguable that the inherently exploitive nature of sexual commodification
    undermined 16-year-old CAs capacity to consent to have sex with clients.
    Though perhaps not rescued by the police, MM was prevented, by Mr. Josephs
    arrest, from engaging in sex work at the age of 15. The arrest also ended CAs
    involvement in the sexual services business.

[133]

Mr. Joseph has now been convicted of the
    offences under consideration. While the publicity surrounding his arrest may
    have contained exaggerations, significant stigmatization was inevitable given
    the offences he committed. As a matter of principle, the mitigating force of
    collateral circumstances that are almost inevitable is greatly diminished:
Suter
,
    at para. 49;
Zentner
, at para. 43;
R. v. Zaneri
, 2012 ABCA
    279, 536 A.R. 224, at para. 8. While the pretrial publicity may serve to
    reduce, to some extent, the role of specific deterrence in this case, it carries
    little weight.

[134]

Which of the sentencing objectives identified in
    s. 718 of the
Criminal

Code
should be given priority
    in the circumstances just described? It is not contested that general
    deterrence and denunciation are the paramount sentencing principles for
    consideration, particularly relating to the offences involving RD, who must be
    recognized to be a minor for the purposes of sentencing:
Friesen
, at
    paras. 101-102. Even for the sexual commodification offences involving CA, it
    has long been accepted that the sentencing goals of general and specific
    deterrence are to be pursued:
R. v. Murray
(1995), 169 A.R. 307 (C.A.),
    at para. 10. That said, there is no need, in the circumstances of this case, to
    stress specific deterrence in crafting Mr. Josephs sentence given the trial
    judges findings of how devastating the entire criminal experience has been for
    Mr. Joseph. It is not necessary to punish Mr. Joseph further in order to keep him
    from doing this again. However, general deterrence and denunciation remain
    paramount considerations.

[135]

Especially in light of the fact that Mr. Joseph
    is a youthful first offender who has expressed remorse, rehabilitation is also an
    important sentencing objective, and enhanced restraint should be used in imposing
    any sentence of incarceration:
R. v. Priest
, 110 C.C.C. (3d) 289 (Ont.
    C.A.), at pp. 294-296;
R. v. Borde
(2003), 172 C.C.C. (3d) 225 (Ont. C.A.),
    at para. 36.

[136]

In the circumstances, and notwithstanding the
    principles of restraint that apply, we are of the view that Mr. Joseph must
    receive a sentence of incarceration. A sentence without incarceration, such as
    the suspended sentence imposed by the trial judge, would be disproportionately
    low, and therefore unfit.

[137]

In imposing that sentence of incarceration, it
    is appropriate to sentence Mr. Joseph to a concurrent, global sentence on all
    charges. The charges are closely interwoven.

[138]

What is the appropriate range of sentence for
    the crimes Mr. Joseph is convicted of committing? In
R. v. Miller
,
    [1997] O.J. No. 3911 (Gen. Div.), at para. 39, the court offered a sentencing
    range for the now-replaced offence of living off the avails of prostitution
    of 12 months to five years. Citing changes in the sexual commodification
    offences, as well as the more developed appreciation of the nature and harm of
    such offences, the Crown offered a sentencing range for our consideration of 12
    months to eight years imprisonment. Mr. Joseph agrees, citing the 12 months to eight
    years sentencing range identified by Brothers J. in
R. v. Webber
, 2019
    NSSC 265, at para. 57, for the related offence of receiving a financial benefit
    from the offence of trafficking in a person under the age of 18, contrary to s.
    279.02 of the
Criminal

Code
.

[139]

In
Friesen
, at para. 39, Wagner C.J.
    and Rowe J. encouraged appellate courts to exercise care in establishing
    sentencing ranges and to give explicit guidance when doing so. We have not
    received the kind of argument required to enable us to establish a precedential
    sentencing range for sexual commodification offences, including where child
    pornography has been created.

[140]

We are satisfied, however, that the low end
    identified by the Crown and Mr. Joseph is an appropriate marker or guidepost.
Webber
,
    at paras. 45, 46, and 49, cited examples of one-year sentences imposed for the
    offence of living off the avails of prostitution in
R. v. Simmons
,
    2005 NSCA 39;
R. v. Almond and Pandher
, 2006 BCSC 1706; and
R. v. Lukacko
(2002), 59 O.R. (3d) 58 (C.A.). Although it will be uncommon, in exceptional
    circumstances even lower sentences may be imposed for sexual commodification
    offences, such as the eight-month sentence in
R. v. Robitaille
, 2017
    ONCJ 768, 400 C.R.R. (2d) 51, a case addressed in more detail below.

[141]

For the reasons expressed, we are satisfied that
    an appropriate sentence in this case falls near the lower end of the range. The
    offences, although grave and serious by nature and potential harm, were
    committed without aggravating circumstances by a youthful first offender who,
    although intentionally embarking on a business in the sale of sexual services, did
    not intentionally involve children. In CAs case, he did so by honest,
    reasonable mistake, but, in RDs case, he was negligent by involving her
    without determining her age. He is remorseful.

[142]

Although incarceration is required in these
    circumstances, a reformatory sentence rather than a penitentiary sentence should
    be imposed. Specifically, a sentence of 15 months of imprisonment would satisfy
    the principles of sentencing, bearing in mind all aggravating and mitigating
    factors. This period of incarceration is to be followed by 18 months of
    probation to address rehabilitation considerations.

D.

D
id the trial
    judge err in finding that the mandatory minimum sentence of two years of
    imprisonment provided for in s. 286.2(2) of the
Criminal Code
is of no
    force or effect
?

[143]

The trial judge was correct in finding the
    mandatory minimum sentence of two years of imprisonment provided for in s.
    286.2(2) of the
Criminal

Code
to be of no force or
    effect pursuant to s. 52 of the
Constitution

Act
, 1982
.
    In reasonable hypothetical cases, this mandatory minimum sentence constitutes
    cruel and unusual punishment, contrary to s. 12 of the
Charter
. It
    cannot be justified pursuant to s. 1 of the
Charter
.

[144]

Section 286.2 provides:

Everyone who receives a financial or
    other material benefit, knowing that it is obtained by or derived directly or
    indirectly from the commission of an offence under subsection 286.1(2), is
    guilty of an indictable offence and liable to imprisonment for a term of not
    more than 14 years and a minimum punishment of imprisonment for a term of two
    years.

[145]

The bar for establishing that a mandatory
    minimum sentence constitutes cruel and unusual punishment in contravention of
    s. 12 of the
Charter
is high. The mandatory minimum sentence must
    impose a grossly disproportionate sentence  that is, a sentence that is so
    excessive as to outrage standards of decency and abhorrent or intolerable to
    society, but not one that is merely excessive (citations omitted):
R. v. Morrison
,
    2019 SCC 15, [2019] 2 S.C.R. 3, at para. 143.

[146]

Moldaver J. affirmed in
Morrison
, at
    para. 144, that when a mandatory minimum sentence is challenged under s. 12,
    the court is to begin by assessing whether the provision results in a grossly
    disproportionate sentence when applied to the offender before the court. If
    the answer is no, the second question is whether the provisions reasonably
    foreseeable applications will impose grossly disproportionate sentences on
    other offenders.

[147]

A reasonable hypothetical, for the purpose of
    the second question, is one that is reasonably foreseeable, even if unlikely
    to arise, as opposed to far-fetched, marginally imaginable, or remote:
R.
    v. Nur
, 2015 SCC 15, [2015] 1 S.C.R. 773, at paras. 56-57, 62, 68-70. In
    fashioning reasonable hypotheticals, courts may take into account personal
    characteristics relevant to people who may be caught by the mandatory minimum:
Nur
, at para. 76.

[148]

In this case, the trial judge found s. 286.2(2)
    to be unconstitutional on both bases: the two years of imprisonment required
    would be grossly disproportionate both when applied to Mr. Joseph and in
    reasonable hypothetical cases.

[149]

With respect to whether the mandatory minimum
    sentence of two years of imprisonment would be grossly disproportionate if applied
    to Mr. Joseph, we do not accept the trial judges reasoning, which was based on
    his erroneous determination that a suspended sentence would be fit. Given our finding
    that 15 months of imprisonment followed by probation of 18 months would be a
    fit sentence in this case, the appropriate question is whether the additional nine
    months of imprisonment required by the mandatory minimum sentence would be a grossly
    disproportionate sentence, bearing in mind that a two-year sentence would move
    Mr. Josephs incarceration into a penitentiary. Without question, the sentence
    required by s. 286.2(2) is significantly longer and more serious in kind than
    the fit sentence we propose. While this disparity may satisfy standards of
    gross disproportionality, we need not decide whether it does so. Even if applying
    s. 286.2(2) to Mr. Joseph would not be grossly disproportionate, the
    provisions reasonably foreseeable applications will impose grossly
    disproportionate sentences on other offenders, thereby contravening s. 12.

[150]

To make this point, we need not rely on the
    hypothetical crafted by the trial judge in this case, which the Crown contends
    would not be caught by s. 286.2(2). The hypothetical relied upon by Greene J.
    in
Robitaille
, at para. 117, where s. 286.2(2) was found to contravene
    s. 12, makes the point eloquently:

This hypothetical involves an offender whom
    just turned 18 in the days preceding the offence. [T]he offender is a sex
    trade worker herself, suffering from addictions and a history of sexual abuse.
    The offenders pimp takes 50% of the money she earns and also deducts the costs
    of living from her income. The victim, a runaway and two months shy of her 18
th
birthday starts to work for the offenders pimp in order to make some money.
    The offenders pimp instructs her to teach the victim the rules of the trade
    and to help purchase the victim clothing. In return, the offender is given 10%
    of all of the victims earnings. Two days later, the victims family locates
    the victim, the police are called, and the offender and her pimp are arrested.
    The victim advises that she serviced three clients over the two days all of
    which were hand job[s]. As promised, the offender received 10% of the victims
    earnings.

[151]

In our view, even bearing in mind the
    paramountcy given to general deterrence and denunciation, it would be grossly
    disproportionate to impose a penitentiary sentence on a victim-offender who acts
    at the behest of an abusive pimp on whom she is dependent, in the circumstances
    described.

[152]

A related hypothetical, which is no doubt reasonable
    because it bears similarity to evidence presented in this case, may make the
    point with even less room for controversy. Assume that CA had turned 18 just before
    Mr. Joseph recruited her, and that she then introduced her high-school friend RD,
    who was not yet 18, to Mr. Joseph, at RDs request, so that RD could also make
    money. If Mr. Joseph gave CA a $50 bonus for doing so, and CA was prosecuted,
    s. 286.2(2) would require that CA receive a sentence of two years in a
    penitentiary. That sentence would not merely be excessive. It would be
    abhorrent or intolerable.

[153]

The mandatory minimum sentence in s. 286.2(2) therefore
    offends s. 12 of the
Charter
. The Crown has not suggested that, if this
    is so, s. 286.2(2) can nonetheless be upheld under s.1. This is not surprising.
    As Karakatsanis J. observed in
Morrison
, at para. 188, it is
    difficult to imagine how a mandatory minimum sentence which is found to be
    grossly disproportionate because it outrages our societys standards of decency
    could represent a justifiable infringement under s. 1 of the
Charter
.

[154]

This is particularly so given the minimal
    impairment requirement, which requires Parliament to show the absence of less
    drastic means of achieving the objective in a real and substantial manner
    (citation omitted):
Nur
, at para. 116. There were less drastic, real
    and substantial means available to Parliament to achieve its sentencing goals
    without producing grossly disproportionate sentences. Parliament could have drafted
    s. 286.2(2) in a way that described conduct that attracts significant moral
    blameworthiness, as suggested in

Nur
, at para. 117, or it could
    have provided for residual judicial discretion to impose a fit and
    constitutional sentence in exceptional cases as was suggested in
R. v.
    Lloyd
, 2016 SCC 13, [2016] 1 S.C.R. 130, at para. 3. There is no apparent
    basis for finding that the minimal impairment requirement is met relating to
    the mandatory minimum sentence provided for in s. 286.2(2).

[155]

The trial judge was therefore correct in
    declaring the mandatory minimum sentence in s. 286.2(2) to be of no force or
    effect, pursuant to s. 52 of the
Constitution

Act
,

1982
.

E.

Did the trial judge err in finding that
    the mandatory minimum sentence of one year of imprisonment provided for in s.
    163.1(2) of the
Criminal Code
is of no force or effect?

[156]

At the time that Mr. Joseph made the child pornography, s. 163.1(2)
    provided:

Every person who makes, prints,
    publishes or possesses for the purpose of publication any child pornography is
    guilty of

(a) an indictable offence and liable
    to imprisonment for a term not exceeding ten years and to a minimum punishment
    of imprisonment for a term of one year; or

(b) an offence punishable on summary
    conviction and is liable to imprisonment for a term not exceeding two years
    less a day and to a minimum punishment of imprisonment for a term of six
    months.

[157]

Almost immediately after Mr. Joseph committed
    the offence, an amended version of s. 163.1(2) came into force:
Tougher
    Penalties for Child Predators Act
, S.C. 2015, c. 23, s.7. Section 163.1(2)
    now provides:

Every person who makes, prints,
    publishes or possesses for the purpose of publication any child pornography is
    guilty of an indictable offence and liable to imprisonment for a term of not
    more than 14 years and to a minimum punishment of imprisonment for a term of
    one year.

[158]

Even though Mr. Joseph is entitled to the
    benefit of the lesser punishment, as the Crown had elected to prosecute Mr.
    Joseph for an indictable offence, the amendment did not change the one-year
    minimum sentence he faced for making child pornography.

[159]

In
Lloyd
, at paras. 26-27, McLachlin
    C.J. commented in the context of a drug trafficking offence that carried a one-year
    minimum sentence:

On its face, a one-year sentence for an
    offender with a prior conviction for a drug offence who is convicted for trafficking
    or possession for the purpose of trafficking in a Schedule I drug, such as
    cocaine, heroin or methamphetamine, may not seem excessive.

The problem with the mandatory minimum
    sentence provision in this case is that it casts its net over a wide range of
    potential conduct:
Nur
, at para. 82. As a result, it catches not only
    the serious drug trafficking that is its proper aim, but conduct that is much
    less blameworthy. This renders it constitutionally vulnerable.

[160]

The same is true of the minimum sentence
    provided for in s. 163.1(2). It catches making everything from the kind of
    shocking photographic images or videos of active sexual violation that the
    trial judge appears to have been alluding to in this case, to images of
    teenagers that feature their sexual organs or anal regions clad in underwear,
    even when such images are taken for private consumption: see
Criminal

Code
, s. 163.1(1). It also captures a broad range of moral
    blameworthiness, applying to those who capture sexualized images of others
    knowing that that they are minors, as well as those who honestly believe that
    their subject is an adult but fail to take reasonable steps to ascertain
    whether their belief is true.

[161]

It is again unnecessary to determine whether, in
    the circumstances, a one-year mandatory minimum sentence of imprisonment would
    be grossly disproportionate had Mr. Joseph only been convicted of making child
    pornography contrary to s. 163.1(2), for the purpose of advertising RDs sexual
    services with a view to his own profit. Reasonable hypotheticals demonstrate
    the point.

[162]

Once again, the Crown takes issue with the
    hypothetical that the trial judge relied on in this case, an 18-year-old
    photographing young women sunbathing on a beach wearing thong bikinis without
    determining whether they are eighteen years of age or under. The Crown says that
    this is not an offence because there is no indication that the dominant
    characteristic of the photographs was the depiction, for a sexual purpose, of
    a sexual organ or the anal region. That, of course, depends on the nature of
    the photograph. Even taking a photograph with a zoom lens in a fashion that
    would remove any such equivocation would be unlikely to warrant anything close
    to a year of imprisonment.

[163]

A variation of the reasonable hypotheticals used
    by this court in
R. v. John
, 2018 ONCA 702, 142 O.R. (3d) 670, at
    para. 29, when striking down the six-month minimum sentence for possessing
    child pornography, provided for in s. 163.1(4)(a) of the
Criminal

Code
,
    provides another example. An 18-year-old who receives a sext (a sexually suggestive
    digital image) on Snapchat (a phone application that displays images only
    briefly) from his 17-year-old girlfriend, and who, for his own private use,
    screen-captures the image after promising his girlfriend that he would not do
    so, has made child pornography. He does not qualify for the private use
    exception recognized in
R. v. Sharpe
, 2001 SCC 2, [2001] 1 S.C.R. 45,
    at para. 116, since he does not have the consent of his girlfriend to make a
    screen-capture image. His conduct is offensive, but a year in prison for this
    offence is not only excessive, it would outrage societys standards of decency.

[164]

One final reasonable hypothetical. Section 163.1
    catches visual representations, whether or not created by mechanical means,
    that depict the sexual organs of a person under eighteen years of age, for a
    sexual purpose, or that depict such persons engaged in explicit sexual activity.
    This includes cartoon or anime images, which are not uncommonly found in child
    pornography collections: see, for example,
R. v. Butler-Antoine
, 2020
    ONCA 354;
R. v. Poxleitner
, 2020 ABCA 136, 389 C.C.C. (3d) 116, leave
    to appeal to S.C.C. requested, 39333;

R. v. B.D
., [2008] O.J.
    No. 6040 (C.J.). There are sound policy reasons for including such depictions
    in the definition of child pornography, as Ratushny J. explained in
R. v.
    Mahannah
, [2013] O.J. No. 6330 (S.C.), at paras. 11-15, a case where an accused
    with no prior record possessed only cartoon and anime child pornography, under
    the mistaken belief it was legal. Mr. Mahannah, who received a time-served
    sentence with 45 days credit for pre-sentence custody, did not make child
    pornography, but this line of cases leads to yet another reasonable hypothetical.
    Pursuant to s. 163.1(2), a trial judge would be obliged to sentence to a year
    in jail a person who draws for their own purposes even one lewd cartoon or anime
    style doodle that meets the definition of child pornography, no matter their
    personal circumstances or their level of moral fault.

[165]

The mandatory minimum sentence in s. 163.1(2) contravenes
    s. 12 of the
Charter

by requiring cruel and unusual punishment
    in reasonable hypothetical cases. Once again, the Crown has chosen, with good
    reason, not to attempt to demonstrate that, if s. 163.1(2) requires grossly
    disproportionate sentences, this is demonstrably justifiable under s. 1 of the
Charter
.
The trial judge was correct in finding the mandatory minimum sentence in s.
    163.1(2) to be of no force or effect.

CONCLUSION

[166]

The conviction appeal is allowed. The acquittals
    on counts 3, 4, 5, 6 and 7 are set aside, and a new trial on counts 4 and 5,
    relating to the complainant RD, is ordered. We also order a new trial on counts
    6 and 7, relating to the complainant MM. At the request of the Crown, the
    charge in count 3 of harbouring relating to CA is stayed.

[167]

Leave to appeal sentence is granted. The appeal relating
    to the constitutional validity of ss. 286.2(2) and 163.1(2) is dismissed, and we
    affirm the declarations of invalidity made by the trial judge pursuant to s. 52
    of the
Constitution

Act
,
1982
. However, the
    appeal as to quantum of sentence is allowed, and we substitute a global
    sentence of 15 months of imprisonment on the charges for which he has been
    convicted, to be followed by 18 months of probation.

[168]

The ancillary sentencing orders have not been
    appealed and remain unaffected.

Released: DB NOV 19, 2020

David
    Brown J.A.

Gary
    Trotter J.A.
David M. Paciocco J.A.





[1]
This jury direction was incorrect. A reasonable steps inquiry is
    undertaken to determine whether a mistaken belief by the accused that the
    complainant was under 18 years of age provides a valid defence. Where the Crown
    can prove that the accused knew the complainant was under 18 years of age, a
    mistaken belief defence cannot survive, and there is no need to consider
    reasonable steps. It is therefore incorrect to direct a jury that the Crown
    must prove the accuseds knowledge that a complainant is under 18 years of age
and

that reasonable steps were not taken. Proof that the accused knew the
    complainant was under 18 would, standing alone, provide the necessary
mens rea
.
The Crown has not
    appealed this misdirection. We mention it only because the findings made about
    Mr. Josephs state of mind relative to the age of the complainants are material
    in understanding the verdicts and in determining a fit sentence, and those
    findings can only be understood in light of the jury direction. Our recital of
    the erroneous jury direction should not be taken as endorsing it as a correct
    statement of the law.



[2]
This determination by the trial judge is also problematic. To be
    sure, where a determination material to the sentence is not evident from the
    verdict, it is for the trial judge to make the requisite finding:
R. v. Ferguson,
2008 SCC 6, [2008] 1
    S.C.R. 96, at paras. 16-19. However, the trial judge had directed the jury that
    to convict Mr. Joseph under s. 286.2(2) it had to be satisfied that the Crown
    had established that Mr. Joseph knew that the complainant was under the age of
    18
and
failed to take reasonable steps to ascertain her age. If the jury
    followed the trial judges direction, its factual finding relating to Mr.
    Josephs state of belief about RDs age would not be unclear. The jury must
    have found not only that Mr. Joseph failed to take reasonable steps to
    ascertain RDs age, but also that he knew that RD was under 18. The Crown has
    not appealed the trial judges finding that Mr. Josephs culpability relating
    to RD was based solely on the failure to take reasonable steps, so we will
    proceed on the basis of that finding.



[3]
The breach charges were ultimately
    dismissed because of a
Charter
violation. Neither this pre-sentence custody nor the
    more than two months that Mr. Joseph was in custody before his initial release
    were available to be credited by the trial judge, as Mr. Joseph received credit
    for that detention when sentenced for unrelated offences.


