On the first question about the impact of Bill C-9--conditional sentencing reform as passed by the House on this offence--it was noted in the question to the previous witness that under Bill C-9 now...Bill C-277 would increase the maximum on indictment to ten years if passed. It would then be possible to make the argument that a conditional sentence should not be available in a luring charge if the court were persuaded that the facts of the case before them met the threshold definition of a serious personal injury offence, which is defined in section 752 of the Criminal Code. Under the circumstances, the facts of the case would have to show beyond a reasonable doubt that it met that threshold. As was indicated, based on the types of cases we've seen that have proceeded under the Internet luring offence to this point in time, and as reported, and given the facts and the considerations that the courts have looked at, our view is that it would be difficult to see that kind of threshold being met in these cases.
That said, I would like to take a moment to explain how the courts have dealt with the luring offence in terms of conditional sentences to this point. Of particular importance is the Ontario Court of Appeal's 2005 decision on the Folino case, which is a case that gets cited in many other cases right now as setting the bar. When is a conditional sentence appropriate in a child luring offence? In that case, the Court of Appeal held very clearly that in most cases involving the offence of child luring, the sentencing goals of denunciation and deterrence will require a sentence of institutional incarceration. Indeed, it will only be in the rarest of cases that a conditional sentence will be appropriate in a case involving this type of offence. It's been cited by other courts. Of 19 reported cases that I reread to prepare for today, there were only two that resulted in a conditional sentence. One was the case I just described--the Folino case.
More recently, the Ontario Court of Appeal, in the Jarvis case from August 2006, reiterated its point about the importance of deterrence and denunciation in these cases and, moreover, went on to say that the conduct prohibited by section 172.1 is serious, as is the secondary offence. If the person took the next step and committed one of the enumerated sexual offences, the court said, then for one of those offences now--in this case it was the invitation to sexual touching--you couldn't have a conditional sentence because of the presence of a mandatory minimum penalty as a result of Bill C-2 from the former Parliament.
Based on our review of the case law to this point in time, and as it's been reported, conditional sentences are—as I say, two cases out of nineteen—very exceptional and very much a reflection of the facts and circumstances in those cases.