R v Jissink, 2021 ABQB 102

Court of Queen’s Bench of Alberta Citation: R v Jissink, 2021 ABQB 102 Date: 20210210 Docket: 170510218Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Andrew Phillip Jissink Accused Corrected judgment: A corrigendum was issued on February 10, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ Introduction [ 1 ] These reasons answer the following three questions: a.

What is a fit and proportionate sentence for the accused guilty of luring under s 172.1(1)(

a) of the Criminal Code ;

b. Is the sentence for this accused grossly disproportionate to the mandatory minimum sentence of one year incarceration; and c.

If it is not, then does the mandatory minimum sentence constitute cruel and unusual punishment of other potential offenders, thus breaching s 12 of the Charter of Rights and Freedoms ? [ 2 ] For reasons which follow I answer the questions as follows: a fit and proportionate sentence in the circumstances of this case is 12 months incarceration; as such, the sentence is not grossly disproportionate to the one-year mandatory minimum sentence; on a reasonable hypothetical approach, however, the minimum sentence does breach s 12 of the Charter .

Background [ 3 ] The accused Andrew Phillip Jissink was charged with an offence under s 172.1(1)(

a) that between October 1, 2016 and January 23, 2017 by means of telecommunication did communicate with a person under the age of 18 for the purpose of facilitating the commission of an offence under s 153(1), s 155, 163.1,170 or 171, or ss 212(1)(2)(2.1) or (4) with respect to that person. [ 4 ] Mr. Jissink was arrested on January 25, 2017. He is being sentenced now more than four years later. A preliminary inquiry proceeded on January 4, 2018. A trial was scheduled for a 10-day period starting September 9, 2019. By virtue of arrangements made long before then, Mr.

Jissink pleaded guilty on August 30, 2019 on the basis of an Agreed Statement of Facts. The sentencing was adjourned for the preparation of pre-sentence reports and a possible s 12 Charter challenge to the constitutionality of the offence under s 172.1(1)(a). A Charter application was filed September 20, 2019 and a date set for a 2-day hearing January 16-17, 2020. A further adjournment was granted, on account of the unavailability of defence counsel, to May 28, 2020. The matter did not proceed then either, owing to Covid-19 considerations.

In due course the sentencing and s 12 challenge was argued on October 15, 2020 and reserved to the date of these reasons for a decision. [ 5 ] These reasons proceed as follows: I will review in general terms the principles of sentencing as they apply to this case. I will review the many authorities argued before me specific to sexual offences against children including the recent decision in R v Friesen 2020 SCC 9 and several post- Friesen cases decided particularly in this jurisdiction.

I will review the facts as they disclose the circumstances of the offence and of the offender, followed by a detailed consideration of the specific aggravating and mitigating factors in this case. My reasons for sentence will then follow, as will my reasons based on a reasonable hypothetical approach as to why the mandatory minimum penalty flowing from s 172.1(1)(

a) breaches s 12 of the Charter . The principles of sentencing [ 6 ] The objectives of sentencing relevant to this case are those set out in s 718 of the Criminal Code of deterrence and denunciation. This is not to minimize the importance of other s 718 sentencing objectives, in particular rehabilitation.

It is to recognize however the impact of s 718.01, which states: 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. [ 7 ] Proportionality as between the gravity of the offence and the degree of responsibility of the offender is a fundamental principle of sentencing: s 718.1. [ 8 ] In determining a fit and proportionate sentence, s 718.2(

a) requires the court to consider relevant aggravating and mitigating circumstances relating to the offence or the offender that may increase or reduce the sentence.

Further subparagraphs of s 718.2 require the court to consider parity, that the sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s 718.2(b)); that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances (s 718.2(d)); and 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, with particular attention to the circumstances of Aboriginal offenders (s 718.2(e)). [ 9 ] The principle of restraint is codified particularly in ss 718.2(

d) and (e). As noted by Lamer CJC in R v Proulx , 2000 SCC 5 , Parliament’s sentencing reforms in 1996 (Bill C-41) were “in large part a response to the problem of overincarceration in Canada” and that ss 718.2(

d) and (

e) in particular “sought to give increased prominence to the principle of restraint in the use of prison as a sanction” (at paras 16-17). The

section 12 analysis [ 10 ] The approach to sentencing in this case, as it includes a s 12 Charter application, is conveniently set out in R v Hills 2020 ABCA 263 at paras 39-41 : [39] There are two stages to the

section 12 analysis. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code . Second, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the fit sentence. [40] An applicant under

section 12 of the Charter can establish a violation in either of two ways. With reference to his own case, he can show that the minimum penalty is grossly disproportionate to the appropriate punishment, having regard to the nature of the office and his own circumstances. Alternatively, in what is commonly known as the “reasonable hypothetical” approach, he can show that the minimum penalty would have a grossly disproportionate impact on others, typically by proposing a hypothetical offence and

offender in reasonably foreseeable circumstances: Nur at paras 57, 58, 65. Because the nature of the law, not the status of the accused, isin issue, the court can consider whether the law could foreseeably impose unconstitutional punishments on others: Nur at para 51. [41] A reasonable hypothetical is “a situation that may reasonably be expected to arise — not ‘marginally imaginable’, not ‘far-fetched’, but ‘reasonable’” [emphasis in original]: Nur at para 56, citing R v Goltz, (SCC), [1991] 3 SCR 485.

The courtin Nur further explained the inquiry into reasonable hypotheticals at paragraph 62: The inquiry into cases that the mandatory minimum provision may reasonably be expected to capture must be grounded in judicialexperience and common sense. The judge may wish to start with cases that have actually arisen (I will address the usefulness of reportedcases later), and make reasonable inferences from those cases to deduce what other cases are reasonably foreseeable. Fanciful or remotesituations must be excluded: Goltz, at p. 506. To repeat, the exercise must be grounded in experience and common sense.

Laws shouldnot be set aside on the basis of mere speculation. [11] R v Nur, 2015 SCC 15 at para 72 the court endorsed looking to reported cases as illustrative of the “range of real-lifeconduct” captured by the offence at issue leading to the impugned mandatory minimum sentence. Relevant sentencing cases [12] The essential elements of the offence to which Mr.

Jissink pleaded guilty are that by telecommunication he communicatedwith a person under the age of 18 for the purpose of facilitating the commission of a specified secondary offence listed in s 172.1(1)(a).The offence is thus one of specific intent: R v Legare, 2009 SCC 56. The Crown states in its brief – and the Defence has not disagreed –that the enumerated secondary offence in question here is s 153(1) sexual exploitation: 153

(1) Every person commits an offence who is in a position of trust or authority towards a young person, who is a person with whomthe young person is in a relationship of dependency or who is in a relationship with a young person that is exploitative of the youngperson, and who (

a) for a sexual purpose, touches, directly or indirectly, with a part of the body or with an object, any part of the body of the youngperson; or (

b) for a sexual purpose, invites, counsels or incites a young person to touch, directly or indirectly, with a part of the body or with anobject, the body of any person, including the body of the person who so invites, counsels or incites and the body of the young person. [13] While I have identified the essential elements of the s 172.1(1)(

a) offence, it is important to recognize how the courts havecharacterized the offence itself, and coming after Friesen, sexual offences against children in general. [14] Although only recently decided, Friesen has already attracted considerable comment in Alberta. [15] An example is the decision in R v Lemay, 2020 ABCA 365 wherein the court noted at para 42 that “society’s appreciation ofthe harm of sexual violence against children has evolved”, adding that in Friesen the Supreme Court offered “unusually blunt guidance”on the effect that evolution should have on sentencing and reliance on precedent. [16] In Lemay the offender pleaded guilty to offences under ss 151 and 172.1(1)(b).

The offender was 35 at the time of theoffences, the victim 15 years of age. The communications included photos of the offender’s genitalia and pressure that the victimreciprocate by sending photos of herself, which she eventually did. On several occasions the offender masturbated to the victim’sphotographs and sent images to her of him doing so. [17] The sentencing judge did not find the offender to be in a position of trust to his victim.

That conclusion was reversed onappeal. [18] On appeal the court also commented that the sentencing judge erred in imposing a sentence equal to the mandatory minimumby relying on cases that pre-dated its enactment. The court noted at para 42 et seq that: [42] …As with other offences involving the victimization of children, society’s understanding of the gravity of luring has evolved inrecent years. Parliament has responded; the courts must as well. [43] Luring is a relatively new offence, having been added to the Criminal Code in 2002.

At that time, indictable luring carried amaximum jail sentence of five years: Criminal Law Amendment Act, 2001, SC 2002 c 13, s 8. No maximum was specified for luringwhen prosecuted by way of

summary conviction, meaning that the default maximum of six months jail applied: Criminal Code s 787(1).In 2007, the maximum for indictable luring was raised to 10 years and the maximum for

summary luring was raised to 18 months: AnAct to amend the Criminal Code (luring a child), SC 2007, c 20, s 1. In 2012, minimum sentences of one year and 90 days were enactedfor indictable and

summary luring, respectively: Safe Streets and Communities Act, SC 2012, c 1, s 22. In 2015, the maximum sentenceon indictment was increased to 14 years; the minimum and maximum sentences for

summary luring were respectively increased to sixmonths and two years less a day: Tougher Penalties for Child Predators Act, SC 2015, c 23, s 11. [44] Parliament has continued to refine the range of sentence that will properly reflect the gravity of luring. Its decision to increasethe available range “should shift the range of proportionate sentences as a response to the recognition of the gravity of these offences.Sentences should increase as a result of this legislative initiative”: Friesen at para 109.

They should also increase “when society’sunderstanding of the severity of the harm arising from that offence increases”: Friesen at para 108. The sentencing judge’s approach iswanting in both respects. [45] The Supreme Court of Canada in Friesen and this Court in Hajar and the many cases cited in those decisions explain thatincreasing sentences for sexual offences against children evolved in recognition of society’s contemporary understanding of the nature

and gravity of sexual violence against children. [46] In Hajar , this Court explained the inherent power imbalance between adults and children under 16 at paras 89-90: … Children have limited experience and psychological resources and a very limited comprehension of the psycho-social aspects of sex. Add to this that adults have enhanced power and standing in the eyes of children and are seen as authority figures by virtue of age.

And it is understandable why, as a result, it is very difficult for a child to assert herself or himself against an adult. … …At their developmental stage, children [under 16] may be emotionally needy and easily confuse sexual predation for affection and attention. On top of this, the general trend in this type of relationship is for an adult to gradually convince a child to accede to the sexual relationship because the child falsely perceives that he or she has consented to it. …..

In short, children “do not possess the psychological maturity and decision-making competence to agree to sexual activity” with adults, making them vulnerable to influence, persuasion and manipulation by adults: Hajar at para 40. [47] Parliament shifted the focus of the criminal law towards sexual offences against children to a “child-centred” approach that emphasizes the trauma to the child victim from all acts of sexual violence: Friesen at para 53 . Courts have written volumes on the various harms and risks caused to children by sexual violence; we need not repeat that discourse at any length.

The emotional harm to children may be more pervasive and permanent than any physical harm: Friesen at para 56 . Damage to relationships with families and caregivers can result in “ripple effects”, such that the child’s parents, caregivers and family members effectively become secondary victims: Friesen at paras 63–64 . [48] Canadian courts are urged to “recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence”, especially when the proportionality principle is being considered: Friesen at para 74 .

After noting that the increases in available sentences in the Criminal Code since 1987 indicate Parliament’s instruction that sexual offences against children must be treated with more gravity than they had been in the past, the Supreme Court in Friesen reasoned at para 100 : To respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences.

As Kasirer J.A. recognized in Rayo in the context of the offence of child luring, Parliament’s view of the increased gravity of the offence as reflected in the increase in maximum sentences should be reflected in [translation] “toughened sanctions” (para 175; see also [ R v ] Woodward , [2011 ONCA 610] at para 58).

Sentencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences. [49] A contemporary understanding of the gravity of sexual offences against children, and the legislative responses to that understanding, should have led the sentencing judge to impose a sentence higher than those found in older cases. Instead, he did the opposite.

Applying his belief that the one-year minimum was “likely unconstitutional”, he opted to rely on older cases such as this Court’s 2013 decision Paradee . [50] In Paradee, a 41-year-old offender posed as a 20-year-old online when he began a relationship with the 15-year-old victim. This Court reiterated its suggestion from R v Hepburn , a 2010 judgment, that “an approximate range of one to three years for luring depending on the details of the offence”. It imposed a sentence of 12 months for luring, with the caveat that a higher sentence would have been appropriate but for the Crown’s position at trial.

The offences in Paradee were committed in 2010, when indictable luring carried a ten-year maximum and no minimum sentence. An increase in either the maximum or minimum should cause an upward adjustment of the range: Friesen at paras 108-109 ; R v Morrisey , 2000 SCC 39 at para 75 ; R v Hammond , 2009 ABCA 415 at para 8 ; R v King , 2013 ABCA 3 at para 20 ; R v Keough , 2012 ABCA 14 at para 34 .

Given the increases to both the minimum and maximum sentences between 2010 and 2017, when the offences at bar were committed, the sentencing range must be higher than in Paradee. [51] The sentencing judge failed to account for the evolution of the Criminal Code provisions and society’s evolving view of luring. His reliance on early cases was misplaced.

These errors impacted the sentence for luring, such that this Court must sentence afresh: Friesen at paras 26-28 . [ 19 ] What flows from Lemay , amongst other things, is that pre- Friesen the Alberta Court of Appeal considered significant sentences in s 172.1(1) cases such as Hajar in 2016, Paradee in 2013 and Hepburn in 2010 – indeed in each of these cases the appellate courts said they would have considered higher sentences but for circumstances unique to each case.

Particularly instructive is the following comment in Hajar , wherein the offender received a one-year sentence on a luring conviction: We caution that this should not be taken to be a sentence appropriate to future cases, where one year is now the minimum sentence specified by Parliament, especially given the aggravating feature here. This Court is well aware of the dangers posed by Internet luring in Canada and the pervasiveness of this problem.

Therefore, sterner sentences in the range of two to four years might well be justified in order to deter and denounce adult sexual offenders who view children as easy prey. (at para 167) [ 20 ] In R v Reeves , 2020 ABQB 78 Clackson J observed similarly that while such comments or cautions are not binding on sentences judges, “they do indicate a likely direction that [the] court will take in sentencing those guilty of luring” (at para 31) [ 21 ] On reconsideration, the reviewing Court in Lemay imposed an 18-month sentence for the luring offence, consecutive to a four-year sentence for sexual interference.

The basis of the 18-month sentence is not detailed in the decision, and there is no further review of cases other than those mentioned earlier in the reasons.

The reviewing court did note the aggravating and mitigating circumstances that were before the original sentencing judge, including the mitigating factor of the offender’s Gladue circumstances, not present here. [ 22 ] Coming after Lemay are a number of recent decisions coming to my attention from the trial courts of Alberta: R v Melrose , 2021 ABQB 73 ; R v Pritchard , 2021 ABQB 39 ; and R v Bains , 2021 ABPC 20 . [ 23 ] Following a detailed review of “ Friesen ’s Lessons” at paras 50-99 of his decision, Renke J in Melrose noted the seriousness

of the offence (at paras 313-333) and the objectives of denunciation and deterrence in sentencing for it, at paras 371-372: [371] No one would dispute the need for the s. 172.1(1) offences. The offences criminalize a new form of criminality, or an old formof criminality using new methods. The harm caused by this criminality is severe.

The wrongfulness of the criminality is obvious.Friesen reviewed the wrongfulness and harms. [372] No one would dispute that such offences, easy to perpetrate from behind the cloak of a keyboard or touchpad and parasitic onthe ubiquitous cellphones and social media habits of target victims, must be denounced and must be deterred and heavy sentences are away to do both. The Court of Appeal expressed this point in Hajar at para 70: [70] Courts may not be able to stop those intent on abusing children.

But given the scope of harm caused by crimes involving childsexual abuse, those determined to commit them should know that, as stated in D(D), supra at para 45: “... prey upon innocent childrenand you will pay a heavy price!” One might also look to EJB [R v EJB], 2018 ABCA 239] at para 73: [73] .... The aspiration of the provision, and Parliament’s will, is that people in this position will regulate their behaviour and do theirduty respecting a young person. The minimum sentence signals that adults who knowingly exploit young people for a sexual purpose canexpect to go to prison.

There is no policy error in such an unambiguous message. The priorization of denunciation and deterrence for sexual offences against children in s. 718.01 makes complete sense. The evils ofonline depredation are real and serious and demand a strong penal response. [24] Melrose was a case of a 27-year-old accused pleading guilty to a s 172.1(1)(

b) offence of luring together with an enumeratedsecondary offence under s 151. Melrose suffered from a significant permanent cognitive impairment. His mental age fell between 8 ½ to11 years old. He had very little appreciation of the wrongfulness and harmfulness of his conduct. He sent some online messages over aperiod of a few days to the complainant. The messages sent were not sexually explicit. They contained no explicit language and sexualrelations were not referred to.

Melrose had no criminal record, pled guilty at an early opportunity, was remorseful, and presented a planto deal with the circumstances that led to his offence. Given his particular and unusual cognitive deficits, on the evidence a sentence ofincarceration would damage Melrose emotionally, psychologically, and likely physically. [25] In the circumstances in Melrose Renke J concluded the one-year mandatory minimum for the s 172.1(1)(

b) offence breacheds 12 of the Charter, and imposed a suspended sentence and three years’ probation. [26] In Pritchard the accused was convicted after trial of numerous offences including two counts under s 172.1(1)(b). The factswere of the offender creating two Facebook profiles to communicate with multiple, unnamed complainants under 16 years of age aboutsexual role play; there was sexually explicit chat, discussions of nudity, requests for cuddling, kissing, and sex, requests for pictures,including pornographic images of girls under the age of 16.

As found by the trial judge, grooming communications were evident, andexplicit requests to engage in sexual behaviour were made.

But for totality/indeterminate sentence considerations, Justice Kubik wouldhave imposed sentences for the luring counts of a total of four years. [27] In Pritchard Kubik J noted the impact of the decision in Friesen in the following terms: [135] As this case involves sexual offences committed against children, denunciation and deterrence are paramount considerations.Friesen is instructive on this point and requires that in sentencing, courts recognize that sexual offences against children are inherentlywrong, have the potential to harm children, and in many cases results in actual harm which may not materialize for years into the future.Accordingly, sentences for sexual offences against children should be sufficiently denunciatory to reflect the gravity of these offencesand their long-term consequences.

While starting point sentences may provide guidance in sentencing, Friesen notes that “...uppersingle-digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.

Amaximum sentence should be imposed whenever the circumstances warrant it.” [136] In determining fit and just sentences for sexual offences against children, the Court provided a non-exhaustive list of factors forconsideration, including the risk of reoffending, abuse of a position of trust, the length of the time over which the sexual abuse persisted,the number of incidents of abuse, and the age and vulnerability of the victim.

Finally, the Court cautioned against myths and stereotypesrelating to harm and consent. [137] Friesen has recently been considered by the Alberta Court of Appeal in the context of luring offences: R v Lemay, 2020 ABCA365 [Lemay]. That decision is not only relevant in terms of sentencing ranges for luring offences, but also addresses the issue of offenderswho are in a position of trust.

As noted in R v Audet, (SCC), [1996] 2 SCR 171, at para 36, in determining whether arelationship of trust exists, courts: ... must take into account the purpose and objective pursued by Parliament of protecting the interests of young persons who, due to thenature of their relationships with certain persons, are in a position of vulnerability and weakness in relation to those persons. [emphasis inoriginal] As further stated in Lemay, at para 33: Trust relationships can include situations where a person inserts himself as a friend or advisor, (Innes, Anderson), insinuates himself inthe daily life of young persons (R v P(HF), 1998 ABCA 104 at para 7) or acts as a trusted friend (R v Robinson, 1994 ABCA 77 at para2). [28] In Bains an offender was convicted after trial of four counts under s 172.1(1)(

a) together with three other sex-related offencesincluding sexual assault and obtaining sexual services for consideration. A global five-year sentence was imposed; on the luring counts,before the application of the Kienapple principle, two concurrent sentences of 18 months incarceration were imposed. Those sentences

were consecutive to a 3½ year sentence for sexual assault. [ 29 ] With regard to the luring sentences in particular, the court considered Friesen and Lemay amongst the authorities. It concluded that the factors relevant to a fit sentence included the number of victims, closeness in age between the victim and the accused, the sexual content of the luring, the purpose of the luring, and whether it led to the commission of other sexual offences, such as sexual assault. [ 30 ] The offender in Bains was youthful, had no prior record and had strong community support. As noted he was convicted after trial.

The victim was 14 years old at the time of the offences. The offending communications were sexually explicit, offering money in exchange for sex, the transmission of sexually explicit material between them, and ultimately led to the sexual assault of the complainant by the accused.

There was an element of grooming in that the offender was found deliberately to have deceived the victim as to the existence of a fictitious female friend named “Jessie” – it was found the offender created and perpetuated the lie about “Jessie” throughout his interaction with the victim, first online and later in person, to reduce her inhibitions and manipulate her.

The sentencing judge questioned the offender’s remorse and lack of insight into the offences, but concluded the offender nevertheless had good prospects for rehabilitation. [ 31 ] It remains to consider the authorities argued before me involving sentences imposed prior to the Friesen decision. [ 32 ] In R v ER , 2019 ABPC 292 , Gaschler PCJ sentenced a 56-year old offender who sent some 20 messages to the 15-year-old complainant over a five-week period. The messages were not graphic or explicit but did refer to physical contact with the complainant and did involve sexualized comments about the complainant.

The offender had no criminal record and entered an early guilty plea. There was no trust relationship between the offender and the complainant. A sentence of four months imprisonment was imposed, followed by 18 months probation. [ 33 ] In R v Reeves , 2020 ABQB 78 Clackson J would have imposed a sentence of 10 months incarceration on a 45-year-old offender with no criminal record and who lost his career as a social worker as a result of the offence. The s 172.1(1) communication in Reeves was longstanding but was not sexual in nature.

There was no trust relationship between the offender and the complainant. [ 34 ] In R v Sutherland , 2019 NWTSC 45 , Charbonneau J imposed a sentence of 12 months on a 50-year-old first offender who coached the complainant in gymnastics and was accordingly in a trust relationship with her. He pleaded guilty to a 172.1(1)(

a) communication for the purpose of facilitating the offender of being in possession of child pornography. In one of the photographs he sent her through the Snapchat application, his penis was exposed. In another communication he asked her to remove her clothes. The enumerated secondary offence was not committed. [ 35 ] I have reviewed the many additional out-of-province sentencing authorities from various court levels argued before me by both parties. Some are referred to in the Alberta cases already mentioned.

Some are quite obviously factually distinguishable – particularly with regard to certain cognitive or other conditions unique to the offender (e.g., R v Koenig , 2019 BCPC 83 ; R v Saffari , 2019 ONCJ 861 ; R v Hems , 2019 ONCJ 779 ). Others were decided prior to R v Morrison , 2019 SCC 15 , which modified the mens rea requirement of the offence in question, and as argued by the Crown, should be approached with caution.

Yet some others were decided prior to the many Criminal Code changes noted in Friesen by which Parliament has signalled that courts should consider more severe sentencings in cases of sexual offences against children. None guide me to a conclusion that I am not otherwise drawn to, having taken the benefit of the cases decided in this province and mentioned earlier in these reasons. The circumstances of the offence [ 36 ] The circumstances of the s 172.1(1)(

a) offence to which Mr. Jissink pleaded guilty are set out in the Agreed Statement of Facts: - At the time of the offence Mr. Jissink was a high school teacher and just under 43 years of age; he was acquainted with the complainant but she was not in any of his classes; - The complainant was 16 at the time of the offence; she had previous dealings with Mr. Jissink, for example she would talk to him while smoking, he occasionally gave her cigarettes, he had added her on various social media sites and messaged her on Snapchat starting in October, 2016 and regularly thereafter; - On January 1, 2017 Mr.

Jissink sent two Snapchat messages to the complainant; both messages contained an image of Mr. Jissink with captions overlaid that said “You’re hot” and “LOL, I wanna fuck you”; - A few days earlier, on December 26, 2016, Mr.

Jissink messaged the complainant also by Snapchat inviting her to join him at her school to help move some scrap metal at the welding area of the school; the complainant agreed to do so; - There was no evidence of physical contact or other inappropriate behaviour on December 26, 2016; - The January 1, 2017 Snapchat messages came to light when the complainant was captured on school video in the shop area of the school on December 26, 2016; her presence led to inquiries of her, which led her to disclose that Mr. Jissink had invited her to the school; Mr.

Jissink was then questioned by a school official regarding the messages and acknowledged their authenticity; he acknowledged “they should never have taken place”; he said he apologized to the complainant the day after sending them; he said he was unable to recall sending them and said he must have been intoxicated when doing so; he said he had taken steps to avoid it happening again, for example by giving his wife his phone when at home; - The further evidence of surrounding circumstances is set out in the Agreed Statement of Facts: o Mr.

Jissink sent Snapchat messages to a second 16-year-old student at the same school; he also provided cigarettes to her and to other

students and smoked with them outside the school; o Mr. Jissink sent Snapchat messages to a third 16-year-old female student in the same school, with her on 60 consecutive days into January, 2017; o Mr. Jissink sent Snapchat messages and communicated on Facebook with a fourth 16-year-old student in the same school; the messages started out being about homework but as described by the student became “creepy” and “weird” over time and, on one occasion, included a message “I want to fuck you”; the same student heard Mr.

Jissink, in a late November 2016 phone call, say “creepy things”, words to the effect that he ‘can’t wait to lick her pussy’; it was apparent that in this phone call Mr. Jissink was heavily intoxicated. The circumstances of the offender [ 37 ] Mr. Jissink’s own circumstances are largely set out in a pre-sentence report of August 30, 2019 and psychological report of Dr. Reuben Lang of December 16, 2019. Presentence report [ 38 ] The presentence report (PSR) prepared by a probation officer is on the whole positive. Its author recommends that in addition to whatever sanction the court imposes Mr.

Jissink would be a suitable candidate for community supervision. [ 39 ] Mr. Jissink told the PSR author he had been drinking at a New Year’s Eve party at the time he sent the texts in question; he said was just joking around, he denied he had any intent to lure anyone to have sex. [ 40 ] Mr. Jissink expressed remorse to the PSR author; the author expressed some concern that Mr.

Jissink appeared to lack insight into his offending behaviors but the basis for that conclusion was not particularly well supported in the text of the report. [ 41 ] There is little in the offender’s background that goes particularly to his moral culpability, but it is relevant that Mr. Jissink has no prior involvement in the criminal justice system. He was married in 1995 and with his wife he has five children now in their teens or adulthood. He remains married to his wife and has had her support throughout these matters. Mr.

Jissink has a positive history for employment: he worked as a journeyman welder and machinist for years before training to become a teacher and starting work as a teacher in 2012. [ 42 ] Mr. Jissink was suspended without pay from his teaching job on January 25, 2017, and was terminated formally from his teaching job in June, 2017. He was called on to repay, and did repay, a $75,000 bursary he had received as part of his teacher training. As of the date of the report and subsequent sentencing Mr. Jissink had been back working with a pre-teaching employer as of March 2017. [ 43 ] Mr.

Jissink experienced some depression and anxiety since his 2017 arrest, about which more is found in the psychological assessment a review of which follows. Psychological report of Dr. Reuben Lang [ 44 ] Dr. Lang prepared a forensic psychological assessment dated December 16, 2019. Coming out of Dr. Lang’s report it is clear that Mr. Jissink reported being disgusted with himself and his behaviour leading to the offence. He was troubled daily by the uncertainty of the outcome of the case. [ 45 ] Dr. Lang recorded that Mr.

Jissink told him he had been drunk “that night or morning” before the New Year’s Day snapchat messages in question. He stated: I said I wanted to fuck her. I did not intend to communicate on Facebook for that purpose. It was more talking to the girl(

s) in a perverted way. I realize it was illegal. We were always joking around… [ 46 ] Dr. Lang noted what he called Mr. Jissink’s “growing signs of victim empathy” – for what he did, the impact of his actions on the complainant and on his family. Dr. Lang noted as well Mr. Jissink’s “growing self-awareness into his psyche and of what steps he needs to do in problem-specific psychological treatment to make any critical and necessary changes… to preclude any prospect of a relapse”. Later in his report Dr. Lang noted that Mr.

Jissink “has shown unrelenting victim empathy and ongoing signs of significant remorse arising out of his luring charge…” Dr. Lang placed Mr. Jissink in a “low risk” category for repeated sex offending and concluded he was “evidently treatable, with a predictably benign outcome”. [ 47 ] Finally, Dr. Lang was asked by counsel to express an opinion as to the impact on Mr. Jissink of a sentence of incarceration. In response, Dr. Lang commented that incarceration would be a sudden, traumatic disruption of Mr. Jissink’s well-established routine involving work, his marriage and dependent children. Dr. Lang noted Mr.

Jissink’s characterization that it would be “devastating” for his wife and children for whom he was the primary breadwinner and who had never experienced such a family crisis. Incarceration would also be complicated for Mr. Jissink given symptoms of chronic anxiety and depression (Dysthymia) and the challenges of adjusting to a drastically new routine and a general prison milieu, as more fully described in his report at pp 32-33. Dr. Lang commented further about Mr. Jissink’s sense of the proportionality of a sentence of incarceration, that: It did seem any lengthier imposed sentence would, in [Mr.

Jissink’s] opinion, be disproportionate to the nature of the luring charge committed by him while in a temporary intoxicated state: a lewd Snapchat message and photo of his head directed at one of his students to whom he apologized the next day.

[ 48 ] Having set out the circumstances of the offence and of the offender, it is possible now to consider relevant aggravating and mitigating factors that may influence what is a fit and proportionate sentence. Aggravating factors [ 49 ] I find the following aggravating factors: Sections 718.2(a)(ii.1) and 718.2(a)(iii) [ 50 ] These Criminal Code provisions set out deemed aggravating circumstances that an offender, in committing the offence, abused a person under the age of 18 years, and abused a position of trust or authority in relation to the victim.

Here the complainant was 16 years of age at all material times. Though not argued before me, I note that in Melrose Renke J declined to find s 718.2(a)(ii.1) a further aggravating factor where the age of the complainant was itself an essential element of the offence. [ 51 ] That being noted, there is the statutory aggravating factor of breach of trust. Here the complainant was not a student in any class taught by Mr. Jissink. She was however a student in the school in which Mr. Jissink was a teacher. Defence counsel properly distinguishes the Mr.

Jissink/complainant relationship from the trust relationship that exists between a classroom teacher and their student. But defence counsel has taken no issue with the Crown’s assertion, with which I agree, that there was nevertheless a trust relationship, if not a relationship of authority, in Mr. Jissink’s circumstances. This was not an exceptional relationship between a teacher and student in which the element of trust or authority was totally absent: R v Audet , 1996 SCC 198 at para 43. Age difference [ 52 ] Mr. Jissink would turn 43 years of age just days after the offending January 1, 2017 text messages.

The complainant was 16 years of age. The age difference of 27 years is aggravating. Harm [ 53 ] There is limited direct victim impact information before me, but there can be no doubting the likelihood of risk of harm inherent in sexual offences against children: Melrose , at para 199 ; Friesen at para 82 . Mr. Jissink’s other conduct [ 54 ] While not relevant to his guilt for the offence to which he pleaded guilty, relevant to sentencing and aggravating is the fact that Mr.

Jissink, albeit while evidently intoxicated, communicated to another 16-year-old student also in a sexual manner, including a message “I want to fuck you” and on another occasion words to the effect that he ‘can’t wait to lick her pussy’. Mitigating factors [ 55 ] I find the following mitigating factors: Guilty plea [ 56 ] I have no reason to doubt that Mr.

Jissink is full value for his plea of guilty to the one count before the court; there is no basis to conclude that the plea came in the face of an ‘overwhelmingly’ strong case for the Crown on all of the essential elements of the offence in question; or that the guilty plea was ‘untimely’ again in the sense of the case the Crown intended to take to trial, as distinct from the case the Crown accepted for Mr. Jissink’s guilty plea; or that the guilty plea did not significantly save judicial resources or the uncertainties of trial. Remorse [ 57 ] Of course Mr.

Jissink’s guilty plea is some evidence of remorse; but as noted by Renke J in Melrose at para 40 : Friesen also confirmed that remorse is a mitigating factor, but its weight increases when “paired with insight” and with signs that the offender has changed his attitude and has taken steps to reduce the likelihood of further offending: at para 165. An offender, for example, may have, on his or her own, taken steps to address the “root causes” of his or her offending, as by attending addictions treatment or counselling. [ 58 ] In the record before me there is some reason to doubt Mr.

Jissink’s insight into the offence and its impact on the complainant. That doubt comes out of the PSR as noted, and from Mr. Jissink’s insistence that while his Snapchat messages were clearly wrong, he never intended to follow through. This is somewhat at odds with his guilty plea to the specific intent offence of s 172.1(1)(

a) including that it was committed for the purpose of facilitating a designated secondary offence. [ 59 ] I do note as related to remorse the admitted fact that the day after the offending Snapchat messages on January 1, 2017, Mr. Jissink said he apologized to the complainant.

[ 60 ] I also note that doubts around his insight are ameliorated by the more recent observations of Dr. Lang that increasingly Mr. Jissink is aware of the inappropriate and criminal nature of his misconduct, and of its impact on the complainant. [ 61 ] While not mitigating as such, I acknowledge the negative impacts of the offence and his plea of guilty on Mr.

Jissink personally: he has encountered adverse (to him) media attention, and enmity from some members of the community; undoubtedly the matter has strained his immediate family relationships, though he continues to have the support of his wife; he has lost his then five-year career in teaching, and was called on to repay a $75,000 bursary that supported his teacher training. Support in the community [ 62 ] It is mitigating, and related to Mr.

Jissink’s positive prospects for rehabilitation, that he continues to have the support of his wife and family, of his employer, and of other members of the community, including of his church. Not mitigating [ 63 ] At paragraph 75 of counsel’s written submission is found a long list of other suggested mitigating factors. The following are not mitigating, but rather indicate the absence of aggravating factors, and in that sense they are no more than neutral factors; that Mr. Jissink has no prior criminal record; that “the same words said in person would not constitute a criminal offence”; that Mr.

Jissink is a low risk to re-offend; that the offence could have been worse, in the sense that no photos or videos were exchanged or requested, and that there was no predatory behaviour on Mr. Jissink’s part, no arrangements were made or attempted to meet for a sexual purpose; that the Snapchat messages were made impulsively, without evidence of forethought, planning or premeditation; that the offence dates to which Mr. Jissink plead guilty were relatively short in duration, a period of some three months; and that Mr.

Jissink had “no intention to harm girls, had emotional congruence and would joke with the girls”. [ 64 ] The last suggested mitigating factor – that Mr. Jissink had “no intention to harm girls” – requires further comment. It is neither mitigating nor neutral, for as noted it is an element of the offence to which Mr. Jissink pleaded guilty that he sent the Snapchat messages to the complainant for the purpose of facilitating the commission of an enumerated secondary offence. As such, while it would not be mitigating in any event, it cannot be argued that Mr.

Jissink had “no intention to harm girls” if that is meant to convey that he had no specific intent to send the Snapchat messages in question for the purpose of facilitating the offence of sexual exploitation. Nor is it mitigating, as argued throughout by the Defence, that there is no evidence that Mr. Jissink actually followed through on the specific intent formed at the time of the s 172.1(1)(

a) offence. What is a fit and proportionate sentence? [ 65 ] I have considered the principles and objectives of sentencing generally and specific to the offence of s 172.1(1)(a). I have also considered the record before me including the circumstances of the offence and of the offender, and the aggravating and mitigating circumstances. [ 66 ] I have considered the submissions of the parties: for the Crown, that Mr. Jissink should be sentenced to a period of 2 years incarceration together with a period of probation; for the Defence, that Mr.

Jissink should receive a one-year conditional sentence to be served in the community. [ 67 ] Central to Mr. Jissink’s cause is his submission through counsel that a sentence of incarceration will serve no purpose other than to make an example of Mr. Jissink, and that a conditional sentence would equally serve the purposes of deterrence and denunciation. [ 68 ] Assuming its availability – which I do not have to decide – I am not persuaded that a conditional sentence satisfies the principles and objectives of sentencing in the circumstances of Mr.

Jissink’s case. [ 69 ] These principles and objectives cannot be taken lightly in cases such as this. In R v Lacasse , 2015 SCC 64 Wagner J (as he then was) commented at para 73 that deterrence and denunciation: …are particularly relevant to offences that might be committed by ordinarily law-abiding people.

It is such people, more than chronic offenders, who will be sensitive to harsh sentences. [ 70 ] In a similar vein, Antonio J (as she then was) noted as follows in R v Shrivastava , 2019 ABQB 663 at paras 91-92 : [91] When denunciation and deterrence are paramount objectives in sentencing an offence, as is true of sexual assault, “they should not be improperly discounted in the quest for individualized sentences”: R v Christie , 2004 ABCA 287 at para 37 ; see also: Arcand at paras 274-276, Glessman at para 8.

In particular, courts must ensure that denunciative and deterrent messages are heard by the audience of potential offenders: Field at paras 22-23. [92] Sexual violence pervades society and is committed by offenders across the spectrum of “character”. In R v M(CF) at para 138 , the Northwest Territories Supreme Court accurately observed: [I]t is not the case that the abuser will always be somebody who is antisocial or "deviant" in a way that is easily identifiable by familiar markers such as diagnosis or mental illness.

While sexual abuse may also be coupled with violence or other manifestly abusive conduct, it is also perpetrated by offenders who come across as sociable, involved in the community, and professionally successful. [citation omitted] [ 71 ] The authorities both before and after Freisen speak most persuasively in favour of sentences of incarceration except in the

most exceptional circumstances. As has been described, and as will be noted in the context of the s 12 Charter challenge, Melrose is such a case. Mr.

Jissink’s is not such a case. [ 72 ] If there is any doubt regarding the persuasive effect of the cases reviewed, alongside the many authorities argued before me, I am reminded of the guidance in Friesen , also citing R v Lacasse at para 57 , that: When a body of precedent no longer responds to society’s current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders or to the legislative initiatives of Parliament, sentencing judges may deviate from sentences imposed in the past to impose a fit sentence. (at para 35) [ 73 ] A period of incarceration for one year is proportionate to the gravity of the offence and Mr.

Jissink’s degree of moral blameworthiness. [ 74 ] To return to circumstances of the offence, Parliament and the courts have spoken loudly and clearly with regard to the seriousness of sexual offences against children including the offence of luring under s 172.1(1). The facts of this case leading the Mr. Jissink’s conviction, while not the worst, are still serious. So too are the circumstances that surround the conviction. Mr. Jissink’s misconduct was relatively brief and by reason of a degree of intoxication, impulsive. He sent not one but two Snapchat messages.

He says he does not recall either, yet by some means he informed himself and the next day apologized. It was not the first time he communicated to young person in a similar fashion. And while he was to some degree intoxicated, his misconduct on January 1, 2017 was intentional – it was clearly sexual in nature, and it was undertaken for the specific purpose of facilitating the commission of a specified secondary offence. Yes, it could have been worse. But that no such offence was committed or even attempted hardly reduces Mr. Jissink’s moral culpability for luring, if it does at all.

The misconduct of luring and of any enumerated secondary offence are legally and morally distinct. And, yes, the luring itself could have been more aggravated. But were that the case, in my view Mr. Jissink would have faced a sentence more severe than incarceration for a period of one year. [ 75 ] To return to the circumstances of the offender, there is little concern that as a first offender Mr. Jissink will reoffend and thus specific deterrence is not a significant concern. There is ample evidence now of remorse and recognition of the harm his misconduct has likely caused, will cause, to the complainant.

By all accounts Mr. Jissink is both capable of rehabilitation and well along that path. He has support in the community. A period of probation which, amongst other things takes into account Dr. Lang’s recommendations, will support the objective of rehabilitation and will serve both Mr. Jissink’s interests and the interests of the community. [ 76 ] Granted, as outlined in Dr. Lang’s report a period of incarceration of one year will be difficult for both Mr. Jissink and his family.

There is nothing however in the record that persuades me that the impact of incarceration justifies a sentence to be served in the community. I note that in Melrose Renke J attached weight to the emotional, psychological, and likely physical harms that would follow a period of incarceration. The circumstances faced by Melrose are readily distinguishable from those facing Mr. Jissink, on the evidence. [ 77 ] Keeping in mind the principle of restraint and the objective of rehabilitation, on balance no less restrictive a sanction than incarceration for a period of one year is appropriate in the circumstances.

And while recognizing that sentencing is an individualized process, the review undertaken earlier in these reasons reveals that a sentence of incarceration for a period of one year is on par with sentences imposed on similar offenders for similar offences committed in similar circumstances.

Section 12 of the Charter [ 78 ] Notwithstanding that I have concluded a fit and proportionate sentence is a period of 12 months incarceration, as noted earlier in these reasons it remains to address on the basis of a reasonable hypothetical approach whether the minimum sentence for the offence under s 172.1(1)(

a) breaches s 12 of the Charter . [ 79 ] I can deal with this aspect of the proceedings briefly, as follows: as also noted earlier, in Nur the court endorsed that when considering reasonable hypotheticals, judges can look to reported cases as illustrative of the “range of real-life conduct” captured by the offence at issue leading to the impugned mandatory minimum sentence. [ 80 ] The recent and carefully-reasoned decision in Melrose is such a case.

For the reasons articulated by Renke J in Melrose at paras 361-389 , to impose a one-year mandatory minimum sentence on the offender in that case clearly breached s 12. As in Melrose , in the case before me the Crown concedes that if a s 12 breach is found, there is no saving it by resort to s 1 of the Charter . Conclusion [ 81 ] Mr. Jissink is sentenced to a period of incarceration of one year. [ 82 ] Mr. Jissink is sentenced as well to a period of probation of two years, the specific terms of which remain to be spoken to and confirmed, as are the ancillary orders that flow from these reasons.

Heard on the 15 th day of October, 2020. Dated at the City of Edmonton, Alberta this 10 th day of February, 2021

Peter Michalyshyn J.C.Q.B.A. Appearances: James Rowan Alberta Crown Prosecution Service Specialized Prosecutions for the Crown Dino McLaughlin Orlagh O’Kelly Field LLP for the Accused _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Mr. Justice Peter Michalyshyn _______________________________________________________ Para 2, line 4 – if the Charter has been changed to of the Charter . Para 64, line 9 – 171.2(1)(

a) has been changed to 172.1(1)(a)