Doyon, Baudouin, Kalichman

Applications for leave to appeal from the conviction and the sentence. Granted. Appeals from the conviction and the Superior Court judgment dismissing an application for a stay of proceedings. Dismissed. Appeal from the sentence. Allowed in part.

As part of a police operation, the police posted fake ads on websites offering [translation] “escort” services. The appellant answered one of these ads and found out from the contact person (undercover officer) that the services involved a 16-year-old girl. He was arrested during the scheduled meeting. He is appealing his conviction on the offence under section 286.1(2) of the Criminal Code (R.S.C. 1985, c. C-46) (Cr. C.) because the judgment dismissed his application for a stay of proceedings due to entrapment and his minimum sentence of six-months of imprisonment. He also asks that the mandatory minimum sentence under section 286.1(2)(a) Cr. C. be declared unconstitutional.

With respect to the conviction, the trial judge clearly completely rejected the appellant’s implausible version that he was unaware of the young girl’s age. With respect to the stay of proceedings, the offence for which reasonable suspicion existed (s. 286.1(1) Cr. C.) and the one for which the appellant was arrested (s. 286.1(2) (Cr. C.) were rationally connected and proportionate. Moreover, the ads constituted sufficiently precise spaces. There are no or few other effective investigative techniques for these offences.

As to the sentence imposed, it is true that the judgment is approximative, but the appellant has failed to prove that the sentence should be disturbed. Harsh sentences are necessary to fight the child sex trade. The accused is also 60 years old and cannot argue a youthful mistake. This was not an impulsive act. He could easily have abandoned his plan, but he decided to persevere. The fact that there are no actual victims does not alter his moral blameworthiness. In addition, by dealing with a pimp (even though it was an undercover officer), he necessarily knew that adults were controlling the young girl and her activities, which is an aggravating circumstance. Even though the judge did not clearly ignore the minimum sentence in her analysis of the fit sentence, which she had to do at that stage, the appellant has failed to convince the Court that the six-month prison sentence is demonstrably unfit.

Next, the judge did not have jurisdiction to declare the minimum sentence unconstitutional under section 52(1) of the Constitution Act, 1982 (R.S.C. 1985, App. II, No. 44, Schedule B) and cannot be faulted for failing to consider the hypothetical scenarios raised by the appellant because it could not have changed the outcome. The situation is different an appeal. This issue was sufficiently argued before the Court by the appellant for it to be considered.

However, one of the scenarios raised by the appellant involves an 18-year-old accused and describes a situation at the low end of the scale for conduct contemplated by section 286.1(2)(a) (Cr. C.) and cannot be characterized as implausible or too far removed from reality.  The Court finds that this scenario – which would likely result in a lighter sentence than six-months of imprisonment – and the case law support the conclusion that in this case, the minimum sentence would be grossly disproportionate in reasonably foreseeable situations. The minimum sentence is therefore declared unconstitutional and of no force and effect.

Text of the decision: http://citoyens.soquij.qc.ca