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R. v. Koenig, 2019 BCPC 83 (CanLII)

Date:
2019-04-18
File number:
82668-4-C
Citation:
R. v. Koenig, 2019 BCPC 83 (CanLII), <https://canlii.ca/t/hzzl9>, retrieved on 2024-03-29

Citation:

R. v. Koenig

 

2019 BCPC 83

Date:

20190418

File No:

82668-4-C

Registry:

Abbotsford

 

 

IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

 

 

 

 

 

 

REGINA

 

 

v.

 

 

ROBERT MADISON KOENIG

 

 

 

 

 

REASONS FOR JUDGMENT

OF THE

HONOURABLE JUDGE K.D. SKILNICK

 

 

 

 

 

Counsel for the Crown:

R. Carot and D.P.H. Tsui

Counsel for the Defendant:

A.K.M. Falk

Place of Hearing:

Abbotsford, B.C.

Date of Hearing:

January 21-23, March 14, April 11, 2019

Date of Judgment:

April 18, 2019


Introduction

[1]           The Accused, Robert Madison Koenig, has pled guilty to two offences, contrary to sections 171.1(1)(a) and 172.1(1)(a) of the Criminal Code. The first of these offences is that of making sexually explicit material to a person under the age of 18. The second is often referred to by the label “child luring”, although that would be a misleading description of what occurred on the facts of this case.

[2]           The facts of this case are not in dispute and have been agreed upon by counsel. That agreement is supported by the independent evidence in this case. The Accused logged on to a social media website known as “Whisper”, which allows users to post and share photo and video messages anonymously. It is not a website typically used to “lure” anyone, but it does allow anonymous users to connect with one another. In this case the Accused connected with the victim of this offence and exchanged sexually graphic messages, photographs and videos. The Accused did so, oblivious at first to the age of his communicant. When the subject of her age was eventually discussed, the victim represented herself to be a seventeen year old grade eleven student, approximately five years younger than the Accused was at the time. The independent evidence supports the Accused in his assertion to police that he never knew that the victim was in fact twelve years of age.

[3]           The Accused’s honest but mistaken belief that the victim was seventeen and not twelve does not afford him a defence to these offences. Neither does his mistake of law that the intimate nature of these communications were not illegal because of his honest belief that the victim was over the age of consent for sexual relations if the two had been face to face. Recognizing that he was wrong in not being more diligent about ascertaining the correct age of the person he was dealing with, the Accused has pled guilty to both of these offences.

[4]           The Parliament of Canada has deemed the matter of these types of offences against children to be so deplorable that it has legislated mandatory minimum sentences to be handed out to those who commit them. In this case, the offences were committed in 2014, when the mandatory minimum sentences were lower than they are today. The Crown is only seeking the mandatory minimum sentences in this case because of the unique facts of this case.

[5]           Specifically, the Accused is not the typical offender that Parliament had in mind when it passed its legislation. He did not seek out or attempt to “lure” a child, and in fact his communications were on a website that does not allow the user to pick the person he is communicating with. The Accused was very honest and forthright when confronted by police about what had happened, uncharacteristically so for someone convicted of this type of offence. He is also a person whose mental health is such that he has been diagnosed with a disorder that adversely affects his social skills and impulse control.

[6]           The other unique aspect of this matter is that when these offences were committed, neither the Accused nor the victim were present in Canada. He was on vacation with his parents in Europe and she was in a south-western US state. Normally Canadian criminal law does not apply to offences committed on foreign soil. Parliament has made an exception for these types of offences. If they are committed by any Canadian citizen or Permanent Resident of Canada, that person is accountable for his or her conduct regardless of where in the world the offence occurs.

[7]           Where an offence carries with it a mandatory minimum sentence, a sentencing judge can depart from the mandatory minimum if imposing that sentence offends that paramount law of Canada, the Canadian Charter of Rights and Freedoms contained in the Constitution Act. In this case this is what counsel for the Accused is asking me to do.

Facts

[8]           In August of 2014, the Accused was travelling with his family on vacation in Europe. He brought his laptop along with him and he was using an internet application or “app” known as “Whisper” to communicate with other users of that service. Whisper is typically not a website used for dating or other social friending. Its purpose is to allow users to post secrets that they have anonymously. Users post messages called "whispers", which consist of text superimposed over an image. Background imagery is either automatically retrieved from Whisper's own search engine or uploaded by the user.

[9]           On August 11, 2014, the Complainant, who will be referred to as H.N., posted an anonymous message on Whisper. The message read “I always feel very embarrassed because I am bigger than other girls.” The Accused responded to the message with innocent banter. At first the exchange of messages was of a non-sexual nature, but then the Accused disclosed his “secret”, which concerned a particular fetish of his. The Complainant was curious about this, at first telling the Accused that she was not judging him for his fetish. A series of messages were exchanged in which the two quizzed each other about this particular fetish. The Accused sent a picture of himself wearing a diaper, with a soother in his mouth, and the Complainant responded with the message “that’s nothing to be ashamed of, that’s really hot.” The Accused asked the Complainant if she wanted to see pictures of him engaging in his fetish, and when she said she did, he sent seven more pictures of himself, some of which showed his exposed genitalia as well as other graphic imagery that is clearly inappropriate for children, and which many adults would find disgusting.

[10]        The Complainant was not put off by what she saw, and continued to engage in messaging with the Accused. The messaging conversation took a turn to sexual fantasy, with both communicants contributing to the discussion, in over a hundred messages. On August 14th, it was the Complainant who offered to send the Accused her phone number, but he replied that he was travelling and had limited internet access.

[11]        Counsel for the Accused notes that the content of the messages coming from the Complainant suggest that they are coming from a person with a level of maturity greater than one might reasonably expect from a 12 year old child, and it is hard to disagree with this conclusion.

[12]        Later that day the conversation turned to non-sexual matters as the Complainant told the Accused that she had played volleyball and hockey that day. This was the first time that the Accused made any inquiry into the Complainant’s age. He asked if she played those sports in college or in high school. She responded that she was in high school. When the Accused asked what grade the Complainant was in, she said she was a sophomore. That meant nothing to the Accused, and when he inquired what grade the Complainant was in, she said that she was in grade 11. The Accused responded with the message “that’s cool!”

[13]        At this point the Accused messaged the Complainant to tell her that he had still not received a picture of her. She replied “K, but first do you want my number?” He said he did, but that he could only text message a limited amount. She told him her name and gave him her phone number.

[14]        The messaging continued via text messages. It began with more sexual fantasy. The Accused sent a video of himself masturbating. The Complainant sent two images of herself that meet the definition of child pornography, though the age of the Complainant is not apparent from these images. She asked the Accused to send another video and he replied that he was attempting to do so, but that he had a slow internet connection. He asked the Complainant to send him a video and she did so. This video also falls within the definition of child pornography, though this is also not apparent from the video itself.

[15]        Much of the remainder of their text messaging consists of their engaging in sexual fantasy. On August 19th the Complainant told the Accused that she was in a traffic accident and had injured her Achilles tendon. She also told the Accused that she and her parents don’t talk at all and haven’t spoken for over five years. She said that her parents were abusive and that she was living independent from them with her brother in his college dorm. Their message exchange ended that day.

[16]        In total the Accused sent the Complainant thirteen photos via the Whisper app, three videos attached to text messages and two pictures attached to text messages. The Complainant sent the Accused two pictures and one video by text messages.

[17]        The Complainant was not a grade eleven student, she was actually twelve years of age. Her age is not apparent from the videos or photos that she sent, and in the Whisper and text messages, she never revealed her true age to the Accused. On August 19, 2014, the Complainant’s father became aware of the text messages on his daughter’s phone. He confronted her about them, and the matter was reported to the local police detachment where the Complainant resides. From the Accused’s cell phone number, that police department was able to determine that the Accused resided in Abbotsford and the matter was ultimately reported to the Abbotsford Police Department.

[18]        Members of the Abbotsford Police Department obtained and executed two search warrants and were able to seize the Accused’s electronic devices. They were able to locate all of the Accused’s Whisper chat logs, all of his text messages and all of the sexually explicit images and videos that he had sent. They also located two photographs of the Complainant. The Accused was arrested on July 9, 2015 and gave a warned statement to police in which he admitted to exchanging messages with the Complainant. He also admitted that he was the person in the videos and photographs that had been sent to her. He said that it was his honest belief that the Complainant was 17 years of age, because that is what she had told him, and also because he believed that Whisper’s terms of service indicated that users should be at least 17 years of age.

[19]        The Accused was subsequently assessed by Dr. Patrick Bartel, a very experienced Clinical Psychologist who has practiced his profession for a quarter century. Dr. Bartel spent over seven hours of clinical interviewing and therapy with the Accused. The facts provided to Dr. Bartel by the Accused essentially mirror those alleged by the Crown, leading Dr. Bartel to conclude that the Accused was very truthful and forthcoming during the course of their sessions, uncharacteristically so for persons charged with these offences.

[20]        The Accused reported to Dr. Bartel a belief in facts which, while not affording a defense to these charges, amount to a mistake of law. The Accused reported that he believed the Complainant to be 17 years of age, and that he thought that his conduct was not illegal. The Accused told Dr. Bartel that he believed that messaging of this nature was common for people who were above the age of consent (16 or older), and it occurred so frequently that he assumed it was legal.

[21]        Dr. Bartel concluded that the Accused did not display any indications of significant mental illness, but that for the past decade the Accused has been subject to depression accompanied by feelings of hopelessness. In the past he has engaged in self-harming conduct such as cutting himself, and he has also had feelings of suicidal ideation. In 2013 he was diagnosed by another psychologist with Dysthymia, a depressive disorder. The Accused does not have any history of drug or alcohol abuse and he has no history of criminal behaviour or violence.

[22]        In his conclusions, Dr. Bartel describes the Accused as presenting “with a clear sexual paraphilic infantilism disorder.” He goes on to note that this disorder is generally unrelated to pedophilia or sexual attraction to children. The Accused has a desire to engage in a fetish which, when engaged in between consenting adults is not illegal. It is not the conduct itself that makes this set of facts a criminal matter, but rather the fact that it was engaged in with a person under the age of 18.

[23]        Dr. Bartel’s report goes on to offer the following risk assessment:

“With regard to prognosis and risk, I believe that Mr. Koenig is at low risk for further sexual offending. Mr. Koenig does not present with the vast majority of established risk factors associated with sex offence recidivism. Unlike high risk offenders, he does not present with a pattern of chronic sexual offences, diverse sexual offending behaviours, an escalation of sexual offending behaviours, use of violence in sexual offending, attitudes that support or condone sexual offending, criminality in general, psychopathic personality disorder, problems related to child abuse, major mental illness, employment problems or substance abuse problems. Nor does he present with a paraphilia that is directly related to criminal behaviours (i.e. pedophilia or sadism).” (Emphasis appears in the original report.)

[24]        In his testimony, Dr. Bartel also noted that the Accused was pro-social and that he was oriented to education, employment, his church, and to building real-time friendships (as opposed to someone with anti-social or isolating behaviours.) He reiterated that there is no correlation between the Accused’s fetish and pedophilia. He added that the Accused has not demonstrated any signs of predatory or grooming behaviour and that in his interaction with the Accused, he found him to be “surprisingly truthful”. He said that the Accused shows good insight into his depression.

[25]        The Complainant subsequently provided Crown Counsel with a Victim Impact Statement in which she expresses feelings of sadness, guilt and rage. She says that she feels that she has lost the trust of her parents, and that it is uncomfortable for her to keep what has happened from her friends. She has been prescribed medication for her depression and has engaged in self-harm through cutting. She is afraid that her friends will become aware of what has happened. She is angry at the Accused and refers to him as sick and twisted. The Complainant is deserving of considerable support and compassion for what she has undergone.

[26]        The Victim Impact Statement illustrates why this type of offence is so troublesome. When one engages in this type of conduct, he or she has no idea who is actually on the other end of the interaction in cyberspace. Often it is a vulnerable child, as was the case here. The victim of the offence may act impulsively at first, lacking the maturity to understand the consequences of unhealthy sexual interaction, only to later experience intense feelings of shame, disgust, worthlessness and self-loathing. It often results in harm to the child, such as depression, self-harm, intense anxiety or isolation and withdrawal. This type of conduct by an offender is analogous to someone discharging a weapon through a wall, oblivious to who is on the other side. While the offender may not intend the specific consequences that follow, reckless action can result in significant harm.

[27]        Cases of this nature are especially difficult because no one ever wants to see a child experience what the Complainant has experienced in this case. Most people’s natural visceral reaction in such cases is one of intense anger. An added complication is found on the facts of this case, where a young person of previous good character, who is not a predator and who did not set out intending to harm anyone, finds himself in the position that the Accused in this case does. As Justice Marchand wrote in R. v. Swaby 2017 BCSC 2020: “The hardest sentencing decisions are those which involve serious offences committed by offenders with a reduced level of moral blameworthiness. This is one of those cases.”

Applicable Law

[28]        The Crown seeks the mandatory minimum sentence as it existed at the time that these offences were committed. Specifically that is a sentence of 30 days for the offence of making sexually explicit material available to a person under the age of 18, and a sentence of 90 days, concurrent, for the offence of child luring. The Crown is not opposed to these sentences being served intermittently. The Crown also seeks a period of three years of probation to follow.

[29]        On behalf of the Accused, his counsel has filed a Notice of Application for a Constitutional Remedy, challenging both mandatory minimum sentences on the basis that they infringe section 12 of the Canadian Charter of Rights and Freedoms (the “Charter”). The Crown disagrees with this assertion.

[30]        A judge of this court may not make a declaration that the mandatory minimum sentences are invalid. The proper remedy is to refuse to apply the mandatory minimum sentences in an appropriate case. In R. v. Lloyd [2016] SCC 13, Chief Justice McLachlan wrote:

The effect of a finding by a provincial court judge that a law does not conform to the Constitution is to permit the judge to refuse to apply it in the case at bar. The finding does not render the law of no force or effect under s. 52(1) of the Constitution Act, 1982. It is open to provincial court judges in subsequent cases to decline to apply the law, for reasons already given or for their own; however, the law remains in full force or effect, absent a formal declaration of invalidity by a court of inherent jurisdiction

[31]        An application of this nature calls for a three stage analysis:

1.            It must first be determined what a fit sentence for the offender is.

2.            It must next be determined if the fit sentence falls below the mandatory minimum sentence prescribed by the Criminal Code. If it does not, that ends the matter and the fit sentence is then pronounced.

3.            If the fit sentence falls below the mandatory minimum sentence prescribed, it must then be determined whether the mandatory minimum sentence violates section 12 of the Charter.

1. What is a fit sentence for this Accused?

[32]        Section 718 of the Criminal Code mandates that “the fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society”. The foregoing is to be accomplished “by imposing just sanctions that have one or more of the following objectives”:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[33]        The Criminal Code goes on to provide, in section 718.1, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Offences in which children are victimized are considered to be particularly grave offences, and section 718.01 of the Code provides as follows:

718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

[34]        The Criminal Code requires, under section 718.2 that sentences should be increased or reduced after taking into account both aggravating and mitigating circumstances. In this case, Crown Counsel and Defence Counsel have set out a number of aggravating and mitigating circumstances, and their lists differ very little. The aggravating circumstances of this offence include the following:

1.            In this case an actual child has been harmed. This is not a case of an undercover police officer posing as a child.

2.            The victim of these offences was very young (although the Accused did not realize that, and believed that she was nearly an adult.)

3.            The Accused convinced the child to make pornography and share it with him.

[35]        Section 718.2 of the Criminal Code specifically lists, as aggravating factors, evidence that the offender, in committing the offence, abused a person under the age of eighteen years (in paragraph ii.1), and evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances (in paragraph iii.1).

[36]        The mitigating circumstances in this case include the following:

1.            The Accused has pled guilty to the offence prior to trial. This indicates an acceptance of responsibility and spares the victim of this offence from having to testify and relive the offence as well as undergo cross-examination.

2.            The Accused has no criminal record.

3.            The Accused was cooperative with police during the investigation.

4.            The Accused has willingly participated in counselling and has been found to have been unusually forthcoming and cooperative in working with his psychologist. Through his counselling he has gained insight into the harmful effects of his behaviour.

5.            The Accused has expressed what his psychologist concludes to be genuine remorse for how he has wronged the victim of his offences.

6.            The offences were of relatively brief duration.

7.            The Accused did not seek out or target a child victim.

8.            The Accused has been assessed as being at a low risk to reoffend.

9.            The Accused has been on restrictive bail conditions for over three and a half years and has complied with the terms of his bail order.

10.         The Accused has a supportive family and extended community support and the members of his community are aware of his offences.

11.         The Accused’s contact with the Complainant was not the product of any predatory behaviour, deception, violence or threats of violence.

12.         The Accused operated under a mistake of law in that he had the genuine, but mistaken belief that his behaviour, if conducted with a consenting seventeen year old communicant, was not illegal.

[37]        Crown Counsel argues that the absence of an aggravating factor is not, strictly speaking, a mitigating factor, and the point is not lost. It is important to recognize these factors however in order to distinguish this case from others relied on by the Crown.

[38]        Section 718.2 of the Criminal Code also contains the following provisions, which are relevant to the question of determining what a fit sentence is in this case:

(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and

(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

[39]        Counsel for the Crown and for the Accused have referred to a number of sentencing decisions in order to offer guidance on the question of what a fit sentence for this offence is. The Crown stresses that the primary sentencing objectives for this type of offence are denunciation and deterrence. In support of this proposition, the Crown has referred to a number of authorities, including R. v. Folino (2005) 2005 CanLII 40543 (ON CA), 77 O.R. (3d) 641 (Ont. C.A.); R. v. Paradee 2013 ABCA 41; R. v. Rafiq 2015 ONCA 768; R. v. Janho 2016 ONSC 7099; R. v. McLean 2016 SKCA 93; R. v. Harris 2017 ONSC 940; R. v. Gucciardi 2017 ONCJ 770; R. v. A.H. 2018 ONCA 677; and R. v. Allen 2018 ONSC 252.

[40]        In R. v. Folino, supra, an accused engaged in sexually explicit conversations with an undercover police officer, believing that the officer was a 13 year old girl. The offence occurred at a time when the Criminal Code allowed for the imposition of a Conditional Sentence Order (CSO). There the Ontario Court of Appeal expressed the opinion that a sentence of incarceration was required for this type of offence in most cases and that a CSO would rarely be granted for this type of offence. Chief Justice McMurtry of that court explained the rationale as follows, at paragraph [25]:

The social policy underlying the enactment of this offence is clear. Many Canadian families have home computers with Internet access. Children are frequent users of the Internet. Children, as vulnerable members of our society, must be safeguarded against predators who abuse the Internet to lure children into situations where they can be sexually exploited and abused. In most circumstances 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 offence.

[41]        In that case however the court found that it was in fact one of those rare cases because of the accused’s lack of a previous record, the expert evidence which concluded that the accused posed a low risk to re-offend, and the non-judicial consequences for the accused as a result of the offence. I would note that all of these considerations apply to this Accused.

[42]        The Crown stresses that, as was observed in R. v. McLean, supra, section 718.01 of the Criminal Code gives primary consideration to denunciation and deterrence in the case of the abuse of a child and that in such cases, other sentencing principles in the Criminal Code are of secondary importance. I don’t believe that anyone disagrees with that proposition. There the court went on to observe that minimum sentences for these type of offences have the potential to depart from the principle of proportionality. In that court’s analysis, it was observed that internet luring is dangerous and serious. Unlike in the present case, it usually involves premeditated conduct specifically designed to engage an underage person in a sexual relationship with the offender, reduce their inhibitions and encourage them to engage in further conduct that is not only criminal but harmful. Once again, few would disagree with this proposition. I would note the distinction from the present case being that this Accused did not set out to target an underage victim.

[43]        Much of the Crown submission on sentencing is founded on the fundamental notion that children are especially vulnerable to internet-based sexual offences and that persons who set out with the intention of selfish gratification by seeking out vulnerable children should rightly expect that their conduct will be met with a sentence of incarceration that reflects the gravity of their conduct. Once again, reasonable persons would not dispute this proposition. The issue is whether or not these same considerations apply to this Accused, who did not set out with the intention of luring or victimizing a child, but who continued in explicit sexual activity over the internet after forming the honest, but mistaken belief that he was engaging in this conduct with a person who was 17 years old.

[44]        The Crown has referred to a number of authorities which set out the appropriate sentencing range for the offences that the Accused has pled guilty to. In the case of the offence of communication with a person under the age of 18 for the purpose of facilitating another offence (section 172.1(a) of the Criminal Code), the Crown has referred to the following authorities:

(a)         R. v. Aimee 2010 BCSC 1463 suggested a range of sentencing for this offence of between twelve and twenty-four months, depending on the aggravating and mitigating factors. The sentencing judge qualified this by adding that it was appropriate to sentence below this range if there are “particularly mitigating factors” and cited R. v. Folino, supra, as an example of this.

(b)         In R. v. Morrison 2017 ONCA 582, the Ontario Court of Appeal stressed that those who seek out child victims for their own sexual gratification and embark on a systematic process of grooming the child should expect jail sentences above the mandatory minimum. Morrison posted a personal advertisement on the website “Craigslist” in the section “casual encounters.” A person calling herself “Mia Andrews” responded to the ad, writing that she was 14 years old. Sexual conversations between Morrison and “Mia” ensued for over two months. In reality, “Mia” was a police officer. In that case however, the accused was given a sentence below the mandatory minimum because the evidence suggested that, in the words of the decision, “there was no indication Morrison intended to commit a physical sexual offence in relation to an underage child.” Like the Accused in this case, Morrison had no criminal record. (The conviction in R v. Morrison was subsequently set aside by the Supreme Court of Canada at 2019 SCC 15.)

(c)         In R. v. A.H., supra, the Ontario Court of Appeal reiterated that where this type of offence involves an adult sexual predator who intends to target and exploit innocent children, the predominant goal of sentencing is for those offenders to be separated from society. In that case the court upheld a sentence of fifteen months incarceration for an offender who targeted his daughter’s fifteen year-old friend and who expressed no remorse for his actions.

[45]        Counsel for the Accused has also referred to a number of sentencing authorities including the following:

(a)         R. v. Jarvis 2006 CanLII 27300 (ON CA), [2006] O.J. No. 3241 (Ont. C.A.), is a case with some similarities to this case. The accused was also 22 years of age, although he believed the person he was communicating with to be 13 years of age. The person was actually a police officer and the accused was arrested when he attended for what he believed to be a meeting. A sentence of six months was upheld on appeal, with the court noting that a sentence in that range was a lenient one.

(b)         Counsel also referred to R. v. Schroeder 2012 ABPC 241, where the court imposed a CSO of 21 months for the offence of child luring. The accused was a 42 year old man who communicated with a police officer that he believed to be a 14 year old girl, over a period of 9 days. The accused was assessed as being at a low risk to reoffend by two psychologists, who also concluded that there was no evidence that he was a paedophile. He was described as “likely struggling with depression as his life seemed to be unravelling on several fronts simultaneously.” The sentencing judge concluded “Due to Mr. Schroeder’s extreme remorse, pro-social background, support in the community, amenability to treatment, out of character offending behaviour and short duration of the offences, I conclude that his is one of the rarest cases in which a conditional sentence, which combines rehabilitation with denunciation and deterrence, meets the objectives and principles of sentencing.”

(c)         In R. v. El-Jamel 2010 ONCA 573, an accused committed the offence of child luring by using an internet chat room to attempt to convince what he believed to be a 12 year old girl and her 13 year old friend to meet with him and have sex. He was sentenced to a 12 month CSO. The accused was 24 years of age at the time of sentencing. He had been sexually victimized himself. He had no prior criminal record and had entered guilty pleas. He was married with a young child and had the support of his wife and father-in-law. At the time of sentencing, the accused was attending therapy. The sentence was upheld on appeal.

[46]        For the offence under section 172.1 (making sexually explicit material available to a minor), the Crown suggests that the appropriate sentencing range for this offence is between four month and two years’ imprisonment. In support of this proposition, the Crown relies on a number of authorities, including R. v. Smith 2014 O.J. No. 4900; R. v. E.N. 2015 O.J. 4228; R. v. Munro 2017 BCCA 141; R. v. Allen 2018 ONSC 252; and R. v. D.A.R.K. 2017 MBQB 17.

[47]        In R. v. Allen, supra, the court canvassed the other decisions and upheld a sentence of 90 days for a 50 year old man who carried on an internet chat with someone he believed to be a 14 year old child, but who was actually a police officer. That accused referred the child to pornographic websites. The court made a finding that the accused did so in order to groom the child, to lower her inhibitions and to desensitize her as a prelude to meeting for sexual activity.

[48]        On behalf of the Accused, his counsel does not take issue with the proposition that sentences at and above the mandatory minimum may be appropriate for those who set out with the intention of targeting child victims. In the vast majority of cases, this offence is committed by unremorseful adult men of a mature age who seek out child victims to satisfy their lustful urges that are the product of paedophilia. She notes that the typical offender is vastly different from the Accused in this case. He was 22 years of age at the time of the offence. He did not set out with the intention of targeting a child. He has been assessed by a reputable psychologist as not being a paedophile. He has demonstrated genuine remorse by being forthcoming and cooperative with the police and with his psychologist. For those reasons, counsel for the Accused asserts that the authorities submitted by the Crown are inapplicable to this Accused and that he is not a “similar offender” as that term is used in section 718.2 (b) of the Criminal Code.

[49]        Counsel for the Accused argues that in determining what a fit sentence is, the sentence must be proportionate to both the gravity of the offence and the degree of responsibility or the moral blameworthiness of the offender”. As the Supreme Court of Canada has held in R. v. Lacasse 2015 SCC 64, “the severity of a sentence depends not only on the seriousness of the crime’s consequences, but also on the moral blameworthiness of the offender. Counsel argues that in this case, the principle of proportionality calls for lenience to be shown towards the Accused because of his diminished level of moral blameworthiness. Specifically, she stresses that the Accused did not go online with any intention of luring a child, a well-established conclusion based on the evidence and a major mitigating factor. He has been assessed as a low risk to reoffend and as someone who is not a paedophile.

[50]        Applying the principles of sentencing then, what is a fit sentence for this Accused? On these facts, a fit sentence of the Accused would be a Conditional Sentence Order of 6 months, but for the fact that he is ineligible due to the existence of a mandatory minimum sentence. This conclusion is reached for several reasons:

(a)         The circumstances of these offences and of this offender lack a significant element that is central to why these offences are typically met with lengthy jail sentences. These offences are typically committed by those who are, in the words of Chief Justice McMurtry “predators who abuse the Internet to lure children into situations where they can be sexually exploited and abused.” The Accused in this case lacked the intention to troll the internet for children. He did not start out looking for anyone, and first went online looking for a place to anonymously disclose the secret of his fetish.

(b)         The circumstances of the Accused are similar to, and even more compelling than those of the accused in R. v. Folino, supra, the leading case in which an offender’s circumstances were found to be within “the rarest of cases” in which a CSO was a fit sentence. Specifically, this Accused comes before the court without any previous record. In both cases, the expert evidence has concluded that the accused poses a low risk to re-offend. This Accused has pled guilty and has shown a high degree of willingness to take responsibility and atone for his conduct by co-operating in the investigation into his offences. This Accused is 12 years younger than Folino. Unlike Folino, who thought he was communicating with a 13 year old child, this Accused believed he was communicating with a 17 year old. This in itself does not excuse the conduct, but the fact is that if the Accused and a 17 year old had met in person, they would have been capable of having consensual sexual activity, unlike in the case of Mr. Folino. This is relevant in considering in context the gravity of an accused and a 17 year old engaging in sexual activity over cyberspace.

(c)         The principles of deterrence and denunciation can be properly addressed by a CSO. The length of the order is longer than the custodial sentence proposed by the Crown. If the Accused is found to be insincere or non-compliant, he will likely end up with a longer period in custody than the time proposed by the Crown. As the Supreme Court of Canada has stated in R. v. Proulx 2000 SCC 5, a Conditional Sentence Order is in fact a sentence of imprisonment.

[51]        A principal of sentencing is to separate offenders from society, where necessary. Such necessity may be said to exist where an offender of this nature either poses a significant risk of reoffending, or has untreated paedophilia. Neither of these appear to apply to this Accused. In this respect, it cannot be said that his separation from society is necessary. The Criminal Code directs that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. Under these circumstances, less restrictive sanctions in the form of a CSO would be more appropriate. The Criminal Code also directs that all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders. These offences occurred almost five years ago. Since then, the Accused has demonstrated good compliance with his bail order, which suggests that the community would not be jeopardized by his serving his sentence on a CSO. Twenty-five members of his family and of the community have written letters of support for him. They are all aware of the nature of this charge, and they attest to the fact that the Accused has demonstrated genuine contrition, and that he has made what are sometimes referred to as “living amends” for his mistake. Under these circumstances it is hard, in good conscience, to conclude that it is “necessary to separate this Accused from society”, if one is being intellectually honest. In this case, incarceration of the Accused would be “consistent” with those goals of addressing the harm he has done only within a revenge-oriented framework.

[52]        The Criminal Code also declares that a principle of sentencing is to assist in rehabilitating offenders. An intermittent sentence would not advance that principle, but a CSO would, in that it permits the court to mandate the Accused to continue with counselling and other rehabilitative programs whether or not he consents to do so. In this case, a CSO is even more appropriate because the Accused has been open and willing to participate in counselling and treatment.

[53]        The Accused took the actions he did, believing that he was engaging in consensual conduct with a 17 year old. He assumed that this was permissible since direct consensual conduct would also be permissible. It should not be overlooked that this was still illegal conduct. Contact over the internet carries with it a degree of recklessness because it makes it more difficult for the individual to know who he or she is actually dealing with. Even if the Complainant had actually been 17, the Accused actions would still have been illegal. His willingness to engage in his conduct under these circumstances increases the gravity of the offence, and therefore a CSO of very brief duration would not be a fit sentence under these circumstances.

[54]        The Accused operated under a mistake of law. He believed that his actions were not illegal if the Complainant was old enough to consent to sexual activity. Ignorance of the law is not a defence to these charges. However a genuine mistake of law may operate to reduce the moral blameworthiness of an accused and serve as another mitigating factor to be taken into account on sentencing. As the Supreme Court of Canada has recently stated in R. v. Suter 2018 SCC 34, although it is not a defence to a criminal charge, mistake of law can be used as a mitigating factor in sentencing, because offenders who honestly but mistakenly believe in the lawfulness of their actions are less morally blameworthy than offenders who are unsure about the lawfulness of their actions, or know that their actions are unlawful.

[55]        For the foregoing reasons, a fit sentence for this Accused for these offences is for him to be placed on a Conditional Sentence Order for 6 months. Such a sentence may be imposed only if the mandatory minimum sentences for these offences are found to be grossly disproportionate and therefore contrary to section 12 of the Canadian Charter of Rights and Freedoms (the “Charter”).

2. Are the Mandatory Minimum Sentences Grossly Disproportionate in This Case?

[56]        Counsel for the Accused submits that the mandatory minimum sentences set out under sections 171.1 (2) (b) and 172.1 (2) (b), as they existed at the time of these offences, constitute “cruel and unusual punishment” under section 12 of the Charter, and that they cannot be justified under section 1 of the Charter. In the event that counsel is successful in this assertion, the appropriate remedy in this case is to refuse to apply the mandatory minimum sentence. The Supreme Court of Canada made this clear in R. v. Lloyd 2016 SCC 13 at paragraph 15:

The law on this matter is clear. Provincial court judges are not empowered to make formal declarations that a law is of no force or effect under s. 52(1) of the Constitution Act, 1982; only superior court judges of inherent jurisdiction and courts with statutory authority possess this power. However, provincial court judges do have the power to determine the constitutionality of a law where it is properly before them.

[57]        The court went on to conclude at paragraph 19 that “The effect of a finding by a provincial court judge that a law does not conform to the Constitution is to permit the judge to refuse to apply it in the case at bar.” In the event that this conclusion is reached, the Accused would then be eligible to be sentenced to a Conditional Sentence Order for these offences.

[58]        Section 12 of the Charter reads: “Everyone has the right not to be subjected to any cruel and unusual punishment.” The onus rests with the Accused to show, on a balance of probabilities, that his rights under this section of the Charter have been infringed.

[59]        Generally speaking, Parliament has the right to impose mandatory minimum punishments, so long as those punishments do not violate section 12. Where those mandatory minimum sentences do not infringe the Charter, sentencing courts are obliged to impose them. In R. v. Lloyd, supra, the Supreme Court of Canada cited with approval this passage from R. v. Guiller (1985) 1985 CanLII 5996 (ON SC), 48 C.R. (3d) 226 (Ont. D.C.):

It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offences. Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment. While the final judgment as to whether a punishment exceeds constitutional limits set by the Charter is properly a judicial function, the court should be reluctant to interfere with the considered views of Parliament and then only in the clearest of cases where the punishment prescribed is so excessive when compared with the punishment prescribed for other offences as to outrage standards of decency.

[60]        In the first stage of this application, the burden rests with the Accused to demonstrate that the mandatory minimum sentence for each of these offences is grossly disproportionate. The Supreme Court of Canada has defined this term in R. v. Lloyd, supra, and in R. v. Boudreault 2018 SCC 58, as being more than simply disproportionate or excessive. It must be so excessive as to outrage standards of decency and abhorrent or intolerable to society. In speaking of “society”, this does not mean that segment of society that believes that every crime justifies a lengthy jail term or that everyone who makes us angry should be jailed for a long time. It applies to reasonable Canadians who understand what the legitimate purpose of sentencing is.

[61]        An inquiry into whether a penalty is grossly disproportionate first involves an individual inquiry into the circumstances of the offences and of the offender. This has been referred to as the “particularized inquiry.” If this does not result in a finding that the sentence is grossly disproportionate, the sentencing court must next determine if the mandatory minimum sentence is grossly disproportionate in reasonable hypothetical situations. This was explained by the Supreme Court of Canada in R. v. Latimer 2001 SCC 1 at paragraph 78:

Specifically, the first aspect of the s. 12 analysis centres on the individual circumstances as set out above and is commonly known as the “particularized inquiry”. If the particularized inquiry reveals that a challenged provision imposes a sentence that is grossly disproportionate in those particular circumstances, then a prima facie violation of s. 12 is established and will be examined for justifiability under s. 1 of the Charter. If, however, the particular facts of the case do not give rise to such a finding “there may remain . . . a Charter challenge or constitutional question as to the validity of a statutory provision on grounds of gross disproportionality as evidenced in reasonable hypothetical circumstances”

[62]        As the Crown states in its written submission, during the particularized inquiry, “the sentencing judge must ask whether the mandatory minimum sentence is grossly disproportionate when compared to the fit sentence… This requires an examination of the gravity of the offence, the personal circumstances of the offender and the personal circumstances of the offence to determine whether the impugned sentence would appropriately address the applicable sentencing principles in section 718.” If a sentence is grossly disproportionate for that particular offender before the court, then a prima facie violation of section 12 is established.

[63]        The mandatory minimum sentence for offences of those which the Accused has pled to have been struck down in a number of recent decisions. In R. v. Randall 2018 ONCJ 470, the sentencing judge refused to apply the mandatory minimum sentence to a charge under section 172.1 where the Crown proceeded summarily. The sentencing judge was concerned that, although the mandatory minimum sentence for indictable offences had been found to violate the Charter, this was not yet the case for summary conviction offences, leaving some offenders subject to the mandatory minimum and others not, depending on how prosecutorial discretion was exercised. The judge considered reasonable hypotheticals in which this different application of sentencing principles to cases where the Crown proceeded indictably, as opposed to where the Crown proceeds summarily, and concluded that the mandatory minimum sentence offended section 12 of the Charter and was not saved by section 1.

[64]        In R. v. Morrison, supra, the Ontario Court of Appeal held that the mandatory minimum sentence under section 172.1 offended the section 12 of the Charter. The reasoning in that case is analogous in many ways to the circumstances of the Accused in this case. The court considered, as with the Accused in this case, Morrison’s blameworthiness was diminished because he did not initially believe that the person he was interacting with was underage when engaging in sexualized conversations. He was culpable only for having acted unreasonably in failing to take steps to ensure that the other person was not underage. The court noted that communication online with an adult for a sexual purpose is not in itself a crime. Morrison, unlike the Accused in this case, advertised for a younger female. There was no indication that Morrison intended to commit a physical sexual offence in relation to an underage child. Morrison had no criminal record. The Court acknowledged that an offender who knowingly embarks on a systematic process of grooming a young person for sexual activity would merit a substantial sentence of imprisonment. It noted however that application of the mandatory minimum sentence to such a wide range of behaviour would result in sentences that are grossly disproportionate for some individuals and that mandatory minimum prison sentences having this character are more prone to infringe s. 12 of the Charter.

[65]        The Ontario Court of Appeal decision in R. v. Morrison was overturned as to its result by the Supreme Court of Canada at 2019 SCC 15. Those reasons were released in the course of the hearing of this matter, and it was ordered that Morrison was to be granted a new trial. The majority in that decision did not address whether the mandatory minimum sentence offended the Charter. In an opinion best classified as obiter, Justice Karakatsanis stated that he agreed with the Ontario Court of Appeal’s conclusion that the mandatory minimum sentence for the offence offended the Charter. At paragraph 187, he wrote:

I would conclude that s. 172.1(2) (a) violates s. 12 of the Charter. Given the broad scope and hybrid nature of the child luring provision, it encompasses situations that can vary dramatically in the moral blameworthiness of the offender and the potential harm inflicted on the victim. An examination of the scope and potential applications of the offence, as informed by lower court jurisprudence, clearly demonstrates that short periods of imprisonment — or even conditional sentences, conditional discharges or suspended sentences — are sometimes fit and proportionate in the circumstances.

[66]        In R. v. Hood 2018 NSCA 18, the Nova Scotia Court of Appeal found that the mandatory minimum sentence under section 172.1 “failed constitutional muster” and upheld a Conditional Sentence Order for an offender who ultimately had sexual contact with two males aged 15 and 17. The court held that while the mandatory minimum sentence was not grossly disproportionate under the particularized inquiry, the court considered a number of reasonable hypotheticals under which the application of the mandatory minimum sentence would violate section 12 of the Charter.

[67]        In R. v. B.S. 2018 BCSC 2044, the court adopted the reasoning of the Ontario Court of Appeal in R. v. Morrison, supra, and held that the mandatory minimum sentence under section 172.1 violated section 12 of the Charter, both as a result of the particularized inquiry and on the basis of the reasonable hypotheticals posed. The court subsequently ruled, at 2018 BCSC 2286 that “the following words in s. 172.1(1) are of no force: “and to a minimum punishment of imprisonment for a term of one year".

[68]        Counsel have also referred to R. v. Swaby 2018 BCCA 416, where the British Columbia Court of Appeal upheld a BC Supreme Court judge’s finding that the mandatory minimum sentence for the offence of possession of child pornography was unconstitutional. The Court of Appeal found that the mandatory minimum violates s. 12 both in respect of Mr. Swaby and in respect of hypothetical offenders. It found the provision to be of no force and effect.

[69]        In the present case, the mandatory minimum sentence offends section 12 of the Charter in two respects:

(1)         On the “particularized inquiry”, the sentence is grossly disproportionate, in that it mandates incarceration for presumed conduct over the internet that might otherwise not be unlawful if it had legitimately occurred in person. If, as the Accused honestly, but mistakenly believed, the Complainant was in fact 17 years of age, as she represented herself to be, the two could have met in person and consensually engaged in the conduct that they discussed in their messaging. This was not the situation which these Criminal Code sections are designed to deter. The Accused was not engaged in any predatory activity and was not using an internet site designed for that purpose. He did not seek out a child victim, did not engage in any predatory behaviour, and has been assessed as lacking any paedophilic tendencies. This is not to suggest that the Accused is innocent or blameless. He ought to have taken more diligent steps to ascertain the real age of the Complainant and when she represented herself as being 17 years of age, he ought to have then ceased any further sexualized discussion. However for this level of moral blameworthiness, a jail sentence would be grossly disproportionate for a young person with no criminal record, who was very cooperative and forthright with police and with his psychologist, who is not a predator or a paedophile, who poses a low risk to reoffend, who has good family and community support, who has complied with restrictive bail conditions for a lengthy period of time, and for whom the principles of sentencing set out in the Criminal Code are achievable with the framework of a Conditional Sentence Order.

(2)         On the “reasonable hypothetical” test, I also find that the mandatory minimum sentences for these offences offend section 12 of the Charter. Each are capable of imposing grossly disproportionate sentences on individuals with a diminished level of moral blameworthiness, who, like the Accused in this case are neither predators nor paedophiles and for whom the principles of sentencing may be achieved in ways other than a mandatory minimum jail sentence.

[70]        In R. v. Morrison, supra, the Ontario Court of Appeal stated that an offender who knowingly embarks on a systematic process of grooming a young person for sexual activity or to facilitate commission of a sexual assault would merit a substantial sentence of imprisonment, in some cases, well above the mandatory minimum. This statement is eminently correct. This statement does not describe the Accused in this case. Offenders who purposely target children for a sexual purpose should not expect the result in this case to apply to them.

[71]        The Crown takes no position on whether the violation of section 12 in this case is a reasonable limit that can be demonstrably justified in a free and democratic society pursuant to section 1 of the Charter. As the court states in R. v. Hood, supra, “It would be very difficult to rescue a provision that metes out punishment that is ‘grossly disproportionate’ to a crime.” For this reason, the mandatory minimum sentences in this case are not saved by section 1 of the Charter.

[72]        This court lacks the authority to strike down the mandatory minimum sentences for these offences, but it can refuse to apply them, and that is what will happen in this case. The Accused will be sentence to a six month Conditional Sentence Order, concurrent on each count. Counsel will have the opportunity to address what the terms of that order should be as well as any ancillary orders.

[73]        It merits mentioning that the quality of the advocacy in this case by all counsel was very diligent and thorough. This case presented a number of difficult and complicated legal and social issues. Counsel were fair in their presentation of this case, and the BC bar is fortunate to have such capable counsel among its number.

Dated at the City of Abbotsford, in the Province of British Columbia, this 18th day of April, 2019.

 

 

_____________________________________

The Honourable Judge K. D. Skilnick

Provincial Court Judge