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Criminal - Sentencing - Sex Offences - Child. R. v. Faroughi
In R. v. Faroughi (Ont CA, 2024) the Court of Appeal considered (and dismissed) an appeal from a conviction for child luring [CCC 172.1(1)(a,b)] and "communicating for the purpose of obtaining for consideration the sexual services of a person under the age of 18" [CCC 286.1(2)].
Here the court considers sentences for child sex offences, here 'child luring':[93] In terms of the gravity of the appellant’s offences, there is no question that they were serious, particularly in light of their mens rea requirements. As Friesen made clear, courts must impose sentences that are commensurate with the gravity of sexual offences against children: at para. 76. In light of Parliament’s decision to increase maximum sentences for these offences and society’s improved understanding of the severity of the harm arising from such offences, sentences for these crimes must increase, and mid-single digit penitentiary terms should be viewed as normal: Friesen, at paras. 5, 99, 114.
[94] In ascertaining the gravity of sexual offences against children, courts must give effect to (a) the inherent wrongfulness of these offences; (b) the potential harm to children that flows from these offences, and (c) the actual harm that children suffer as a result of these offences: Friesen, at para. 76. Because of their inherent wrongfulness, inchoate offences that occur within the context of a police sting operation, such as the ones committed by the appellant, should never be viewed as “victimless”: Friesen, at para. 94. Although the absence of a specific victim is relevant to ascertaining an offence’s gravity, it cannot be overemphasized – the accused gets no credit for this factor: Friesen, at para. 93. In the child luring context, other relevant considerations can include: (a) the secondary offence being facilitated; (b) the duration and frequency of the communications; and (c) the age difference between the parties: see R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at paras. 146-47.
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[95] When these considerations are weighed, it remains undoubtedly true that the offences were serious, recognizing that the appellant communicated with someone who he believed to be below the age of 16 for the purpose of obtaining sexual services involving extensive sexual activity.
[96] In terms of the offender’s degree of responsibility, multiple factors are relevant, including: (a) the mens rea of the offence; (b) the offender’s conduct in the commission of the offence; (c) the offender’s motive; and (d) the offender’s personal circumstances: R. v. Hills, 2023 SCC 2, 477 D.L.R. (4th) 1, at para. 58. The mens rea of the appellant’s offences are highly morally blameworthy: see Friesen, at paras. 88-89.
[97] There are also factors that attenuate the appellant’s culpability including his age and his lack of sophistication.
[98] A fit sentence must also consider the appellant’s other mitigating factors, including: his lack of criminal record, his sincere remorse, his pro-social lifestyle, his family support, his complete lack of risk to the public, his proactive participation in sexual offence treatment, his proactive volunteer work, and, as indicated in his fresh evidence, his significant medical hardships. The personal circumstances of this appellant require this court, while giving due consideration to denunciation and deterrence, to meaningfully consider the principle of restraint and assess whether a non-carceral sentence is appropriate: Batisse, at para. 32.
[99] This court has consistently reiterated post-Friesen that conditional sentences will rarely be appropriate for sexual offences against children: see M.M., at para. 16; B.M., at para. 2. Even so, in some exceptional circumstances, incarceration will not be appropriate. For example, without creating any bright-line rules, this court in M.M. suggested that some offenders experiencing medical hardship that cannot be adequately addressed within a correctional facility may fall within these circumstances: at para. 16. As I will explain, I am satisfied that, given the appellant’s immaturity and sexual inexperience at the time of the offence, the fact that this was his first offence, his recent medical hardships, and his impressive efforts in taking accountability for his actions and serving his community post-sentence, a conditional sentence is available in these circumstances.
[100] To be clear, nothing in these reasons should be taken as suggesting that the sentencing range for these offences has changed, nor should it be taken as suggesting that a conditional sentence will always be appropriate for a youthful first-time offender who commits these offences.
[101] However, other Project Raphael cases where carceral sentences were found to be appropriate are clearly distinguishable from the case at bar. In the following cases the offenders were much older than the appellant: Cowell; R. v. Aguilar, 2022 ONCA 353. This court also upheld or substituted carceral sentences of around six months against relatively youthful first-time offenders in Jaffer (ONCA) and R. v. Chang, 2019 ONCA 924. The appellant’s circumstances, however, remain distinct from those cases because he was a teenager at the time of the offences and he has other significant mitigating factors, particularly his physical health problems and extensive proactive participation in therapy and community service.
[102] When determining whether a conditional sentence is appropriate, a court must engage in a two-step process. First, the court must make a preliminary determination that neither probation nor a penitentiary term is appropriate: Proulx, at para. 58; R. v. Scholz, 2021 ONCA 506, 156 O.R. (3d) 561, at paras. 26-27. Second, assuming the offender satisfies the other statutory prerequisites enumerated under s. 742.1 of the Code, the court must determine whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing: Proulx, at para. 60.
[103] In this case, the preliminary step is satisfied because probation would insufficiently advance denunciation and deterrence, and a carceral sentence of two years or greater would be excessive. Moreover, the appellant meets the other statutory prerequisites. While offences subject to a mandatory minimum are not eligible for a conditional sentence pursuant to s. 742.1(b), because the appellant challenged the constitutionality of the mandatory minimums, the assessment of a fit sentence can still consider the adequacy of this alternative to a carceral sentence: see Hills, at para. 143.
[104] The key question then becomes whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing. In the context of sexual offences against children, conditional sentences will often fail to adequately achieve denunciation and deterrence, which have a paramount status for these kinds of offences: see Friesen, at paras. 101-5. As stated in Proulx, at para. 114, “[w]here punitive objectives such as denunciation and deterrence are particularly pressing … incarceration will generally be the preferable sanction”.
[105] However, because the appellant was a first-time offender and was still a teenager at the time of the offence, the restraint principle, and the associated need to meaningfully consider the objective of rehabilitation, also take on an elevated importance. Similarly, the recent onset of the appellant’s significant physical health issues must be taken into consideration in crafting a fit sentence. Through expressing genuine remorse, proactively participating in sex offence therapy, completing his engineering degree, and volunteering hundreds of hours for charity, the appellant has taken real steps to rehabilitate, provide reparations to the community, and promote a sense of responsibility and acknowledgement of harm. His sentence should not undermine this progress.
[106] Recognizing the unique circumstances of this case where there is a genuine need for the sentence to reflect the principles of denunciation and deterrence while giving effect to restorative objectives, I am satisfied that concurrent conditional sentences of nine months are fit: see Proulx, at para. 100. To adequately achieve the objectives of denunciation and deterrence, the conditional sentences will include punitive conditions, such as house arrest: Proulx, at paras. 102-3, 107. These objectives will also be achieved by the stigma associated with the appellant’s convictions: Proulx, at para. 105. Conditional sentences better advance the rehabilitative prospects of an offender: Proulx, at para. 109. That is especially true here. There is a real risk that a carceral sentence, even of a limited duration, would expose this youthful offender to harm and interfere with his rehabilitation.
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