R. v. Fawcett, 2019 BCPC 125

Citation: R. v. Fawcett 2019 BCPC 125 Date: 20190618 File No: 104337-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. LOYD DOUGLAS GEORGE FAWCETT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: R. Carot Counsel for the Accused: G.A. Kay Place of Hearing: Kamloops , B.C. Dates of Hearing: January 28 and January 29, 2019 Date of Judgment: June 18, 2019 [ 1 ] Mr. Fawcett is charged with and has pleaded guilty to one count of child luring contrary to s. 172.1(1) (

b) of the Criminal Code . The crown has proceeded summarily which means that there is a six month mandatory minimum sentence. Because of the mandatory

minimum on a

summary conviction, certain sentencing options such as a conditional sentence order, intermittent sentence, discharge and suspended sentence are not available. These are arguably available for a conviction by indictment. Had the crown proceeded by indictment there is, on the face of it, a one-year mandatory minimum with a 14-year maximum. That one-year mandatory minimum has been struck down. [ 2 ] The crown seeks a jail sentence of 9 to 12 months followed by two years of probation, along with the ancillary DNA, Sex Offender Information Registry Act and s. 161(a), (

b) and (

c) orders. The defence seeks, having brought an application under s. 12 of the Canadian Charter of Rights and Freedoms , a sentence in the range of four to six months by way of a conditional sentence order followed by a lengthy period of probation. [ 3 ] As I have said, Mr. Fawcett has filed an application under s. 12 of the Charter to challenge the mandatory minimum six month sentence as cruel and unusual punishment.

The process begins with an assessment of what a fit sentence would be absent the mandatory minimum. [ 4 ] If I am satisfied that the fit sentence in this case is within the range of the mandatory minimum, I may either decline to consider reasonable hypotheticals where the mandatory minimum might offend the Charter ; or I may consider reasonable hypotheticals. A provincial court judge does not have the jurisdiction to declare a

section of no force and effect and so there is little benefit to undertaking that exercise if the sentence I pass meets or exceeds the mandatory minimum. [ 5 ] On the other hand, if I find that the fit sentence is less than the mandatory minimum, I must proceed with the assessment of whether the mandatory minimum is grossly disproportionate in the circumstances. Part of that process is the consideration of what grossly disproportionate means considering the facts of this case and Mr. Fawcett’s circumstances, and considering reasonable hypotheticals that may also result in a grossly disproportionate sentence. MR.

FAWCETT’S FACTORS ON SENTENCE [ 6 ] There is an agreed statement of facts with respect to the offence itself which has been filed and which I attach as

Schedule A to these reasons. The attachments to that statement are not included. [ 7 ] Included in the agreed statement of facts are screenshots depicted in the YouTube videos that identify Mr. Fawcett, where he lives and what he drives. The chat logs are ultimately included in video 2 and have 1,968 views. Video 2 also has a photograph of Mr. Fawcett taken from a screenshot of his Facebook page. The YouTube video 2 has all of the messages between Mr. Fawcett and Ms.

Bradner, and includes his telephone number. [ 8 ] I have the benefit of the pre-sentence report prepared by Kamloops Community Corrections and the forensic psychological report of Dr. Nalini Joneja. [ 9 ] The psychological report contains some important identifying information with respect to Mr. Fawcett but also includes some significant errors. I will deal with the significant errors first. Dr. Joneja identified that Mr.

Fawcett had been the subject of investigation 95 times between 2008 and 2015 including behaviours such as uttering threats, assault, criminal harassment and sexual assault, but he possesses no criminal record. There is no evidence before the court about what any of these 95 contacts may have related to: whether he was a witness, victim, or suspect in the investigation; nor whether there was any foundation to them. [ 10 ] Dr. Joneja also said that Mr. Fawcett used an alias in order to subvert the law. There is no evidence that he used an alias or that he did anything to subvert the law.

His birth name was Oscroft, which he subsequently changed on the death of his grandfather to Fawcett, to honour his grandfather. This is not disputed. The information she relied upon was entirely incorrect except the fact of his two names. [ 11 ] Her report otherwise provided thorough insight into Mr. Fawcett’s cognitive challenges, and proposes valuable sentencing considerations. Dr. Joneja recognized in her report that Mr. Fawcett suffered from a developmental disability since birth with deficits in executive functioning, language, impulse control and emotional lability. Mr.

Fawcett receives an income disability allowance from the government. He used to live in a trailer on his mother’s property but because his teenage daughter lives there with his mother, he now lives in a hotel. [ 12 ] Dr. Joneja outlined the past neuropsychological testing that suggested Mr. Fawcett experienced deficits in several areas of cognitive functioning. Her most recent screening supported those findings and found significant impairment with respect to executive functioning and the ability to strategize, organize and execute plans of action.

She found at paragraph 11 of her report: … This impairment may play a significant role in Mr. Fawcett’s ability to independently manage complex activities of daily living such as navigating novel situations as well as his ability to manage stress and negative emotional states which may be relevant to the risk of recidivism . Certain cognitive deficits may also limit the effectiveness of standardised rehabilitative programmes and should be taken into consideration in the development of a relapse prevention plan to reduce the risk of recidivistic behaviour. (emphasis added) [ 13 ] Dr.

Joneja provided a thorough developmental history including the following, which I paraphrase:

a) Mr. Fawcett’s father left his mother, Linda McCoy when she was 17 years of age and pregnant with Mr. Fawcett. Mr. Fawcett has never met his biological father and knows nothing of his history.

b) As a child, Mr. Fawcett resided in a trailer with his maternal grandmother and step-grandfather. His mother lived in a separate trailer next door. His grandfather taught him about everything mechanical. His step-grandfather passed away in 1998 and his grandmother passed away recently.

c) Mr. Fawcett has two siblings who are younger than him. Mr. Fawcett did not get along with the father of these two children. This stepfather consumed alcohol excessively and was violent toward Ms. McCoy and possibly toward Mr. Fawcett.

d) Mr. Fawcett had some surgeries early in life. He apparently suffered a developmental regression at the age of two or three after receiving an electric shock from a power cord and extension cord. Ms. McCoy claimed that Mr. Fawcett had to be toilet trained again following the shock. She claimed he could not speak for 18 months but this was evidently not corroborated in the medical records Dr. Joneja reviewed.

e) At the age of six, Mr. Fawcett was admitted to St. Paul’s with respect to a history of having inco-ordinate movement, being clumsy and having poor speech from the age of 1.5 years. The neurological assessment conducted at that time found, among other things, “impoverished speech and “mild mental retardation” despite his mother’s assertion that he was of normal intelligence. At that time, he evidently did not know how many siblings he had, his age or his birthdate.

f) At the age of eight, his school determined he was unable to “handle” the Grade 1 curriculum. He was transferred to Allan Matthews Elementary where he was determined to be at a high risk for learning difficulties.

g) At the age of eight, Mr. Fawcett was found to have a verbal IQ of 45, a perceptual IQ of 63, and full scale IQ of 49. Exhibiting a similar experience that Dr. Joneja had, the special counsellor noted that Mr. Fawcett’s “everyday functioning is better than the scores would suggest”. When testing became too difficult, “he lost interest quickly and shows some anxiety”. This testing also indicated extreme difficulty with sequencing and reasoning as well as auditory problems. [ 14 ] Mr. Fawcett completed his remedial education although Dr. Joneja highlighted some issues Mr.

Fawcett evidently had with his temper throughout school. There were also difficulties he had fighting with a female student and some questionable references to allegations that were either never pursued or were ultimately stayed. There are no details before me, much less reliable ones. [ 15 ] Mr. Fawcett is capable of making basic meals and assists with the physical maintenance of his mother’s house. [ 16 ] Mr. Fawcett was married in 2004 when it was discovered that his then girlfriend was pregnant with Mr. Fawcett’s daughter. Even while Mr.

Fawcett was married, which ended in 2006 without a divorce, the couple were unable to care for their daughter. His partner is also a person with intellectual disabilities and may suffer from substance dependence. His daughter is now 14 years old and lives with Ms. McCoy, who has custody of her. She raises the child in her house while Mr. Fawcett resided in a trailer on her property. Ms. McCoy described him as behaving more like a brother than a father toward her grand-daughter. [ 17 ] It seems that Mr. Fawcett works at Rivershore Used Auto Parts in some capacity.

While he had originally said that he worked, he revised this to say that he helped out there. While he described himself as a backyard mechanic, it seems that his role may be something less than that. He appears to have mechanical aptitude, regardless of the actual nature of this work. [ 18 ] In her assessment of Mr. Fawcett’s physical health, mental health and personality disorder, Dr. Joneja observed the following:

a) Mr. Fawcett is psychologically naïve and lacking in insight. However, he had no disorganized thought or distortions of reality. He was alert and oriented with no evidence to suggest the presence of psychotic disorder.

b) Dr. Joneja noted the prior diagnosis of mild mental retardation at eight, that he is on Guaranteed Available Income for Need Benefits, and was receiving a handicap pension because of “birth effects”.

c) Mr. Fawcett became irascible as the complexity of the tasks increased during his testing. He had a tendency to give up when faced with challenging or difficult tasks. Dr. Joneja opined that he may have had limited opportunities to experience personal success.

d) Mr. Fawcett had a full scale IQ of 58 placing him in the extremely low range of intellectual functioning. His verbal comprehension index was 61, which placed him in the extremely low range for acquired knowledge, verbal reasoning and attention to verbal information. His perceptual reasoning index was 60, which placed him in the extremely low range for fluid reasoning, spatial processing, attentiveness to detail and visual motor integration.

e) Mr. Fawcett was found to be in the impaired range for both phonetic and semantic fluency. Dr. Joneja also observed evidence of perseveration.

f) Mr. Fawcett demonstrated significant difficulty with complex planning and strategy formation, and implementation in a novel situation. [ 19 ] Dr. Joneja made this observation at paragraph 39: Perseveration, impulsivity, and low frustration tolerance may be indicative of deficits with respect to executive functioning and may warrant further investigation, as these symptoms may have significant relevance for future risk of sexual violence recidivism.

When these specific deficits are considered in conjunction with an estimated IQ within the Extremely Low range, this may support the need for ongoing support and supervision. [ 20 ] Having established the parameters for Mr. Fawcett’s cognitive limitations, Dr. Joneja opined about possible personality disorders including schizotypal and avoidant personalities as well as a prior history of believing he was being followed. I have not outlined all of Dr.

Joneja’s assessments because they are heavily qualified by the limitations of the testing themselves and note that further testing is required to confirm those diagnoses. She had also observed that some of the testing could not be completed because of Mr. Fawcett’s limitations and frustrations. [ 21 ] Using the risk for sexual violence protocol assessment, Dr. Joneja identified these problems:

a) Mr. Fawcett had initially denied any memory of his communication with the “victim” although he eventually admitted to at least some memory of his interactions. He denied having paedophilic impulses but his mother said there may be a family history of paedophilia across three generations. This was never expanded or explored further. Dr. Joneja felt that the reported lack of memory may

suggest an unwillingness to accept responsibility for his behaviour, exhibit a lack of empathy for his victim or demonstrate a lack of remorse. She also expressed that his denial of awareness of sexual violence may perpetuate a personal attitude that condones anti-social behaviour and sexual deviation.

b) Dr. Joneja opined that his low motivation with respect to the development of insight and modification of his behaviour might impede therapeutic progress because he does not appear to accept complete responsibility for his sexually deviant behaviour or acknowledge his sexual impulses described in his communication with “the victim”. She felt that the development of victim empathy and learning that his behaviour is a breach of trust would be important focuses for his treatment.

c) She identified his sexual offending behaviour as predatory in nature. She observed psychological coercion in his communication with the “victim”. This included grooming in the form of promises of material goods, personal freedom and flattery. In identifying this concern, Dr. Joneja cited the breach he committed by using an electronic device to access the internet. She opined that “convictions related to supervision failure may suggest a disregard for authority and the law.

Problems with supervision may also be associated with attitudes that support or condone sexual violence and problems with treatment and may be indicative of an increased risk to recidivate”. [ 22 ] Dr. Joneja cited again the fact that Mr. Fawcett attempted to subvert law by using aliases, which was entirely inaccurate. At the sentencing hearing, she said that she would not change her risk assessment even if she excised the reference to Mr. Fawcett using an alias. This was because Mr. Fawcett disclosed his dislike for the police and because he had breached his bail conditions. [ 23 ] In the report, Dr.

Joneja highlighted that Mr. Fawcett attempted to prevent the “victim” from disclosing his offending behaviour to her mother, suggesting Mr. Fawcett was aware his behaviour was prohibited. She then cites the sexual offences for which he was investigated and charged in 2002 to say that he has either difficulty learning from previous experience or that the benefit he may derive from sexual offending against children outweighs the potential cost. This is faulty foundation in this case. [ 24 ] In one of those instances cited, there was a fight because someone was claiming to be pregnant by him.

This did not result in criminal charges. Nothing more is known of this incident. In the other incident, charges that were started were ultimately stayed. Dr. Joneja concedes that she does not have any facts about those allegations. It would be a serious error to rely upon them to suggest that he has difficulty learning from a previous experience. In addition, the one charge from which the sexual assault allegations flowed involved an 18-year-old woman. This challenges Dr. Joneja’s assertion that Mr.

Fawcett may derive more benefit from sexual offending against children when weighed against the potential costs to him. [ 25 ] Dr. Joneja observed that Mr. Fawcett’s cognitive limitations might reduce his capacity for insight. She found that his “repertoire of affective coping strategies for stress and anger are suspect considering that his problem-solving skills are likely limited”. She found evidence to suggest he avoided addressing problematic situations and difficult emotions. Under increased duress and lower self-esteem, Mr.

Fawcett might be inclined to act impulsively, seeking comfort and esteem in inappropriate ways, placing others at risk. She also found that his difficulties with relationships, both intimate and not, may be evidenced in his relationship history and lack of pro-social contacts. She found this may be relevant to a future risk of violence because they are “indicative of underlying difficulties in the socio- affective domain and limited access to social and emotional support, which might otherwise serve as a protective factor, contributing to reductions in violence risk”.

She identified his family as his greatest source of support and that he has very few close friendships. She said problems with intimate relationships are an important factor for assessing risk for sexual violence “including recidivistic sexual violence among subgroups of sex offenders such as child molesters”. [ 26 ] She also opined that interpersonal relationships, demands and restrictions may generate risks of harm that act like triggers. Dr.

Joneja recommended that programmes addressing interpersonal conflict and emotional regulation as well as ones that increase understanding of maladaptive patterns of behaviour would be useful to Mr. Fawcett. She said that difficulties associated with the executive dysfunction are relevant to increased risk of violence. Demands of daily living “likely influence feelings of anxiety and perpetuate feelings of inadequacy and low self-esteem”. Dr. Joneja opined that Mr.

Fawcett needed to increase his opportunities to experience personal success as they would be imperative to developing a sense of self-worth and competency. She felt if he were to participate in structured daily activities and realistic goal setting it would increase the likelihood of those personal successes and reduce the risk of recidivism. [ 27 ] Given his cognitive deficits, Dr. Joneja suggested he would require additional support to participate in any type of structure or remedial program because his ability to profit from experience and apply solutions to tasks may be limited.

He may have difficulty using information he is presented with in a meaningful way or apply the information in disparate circumstances without explicit instruction. Dr. Joneja opined this may be particularly relevant to adhering to conditions set by the court while in the community. He would require close monitoring. However, I note that apart from the breach with respect to the cellular phone, he had been on bail for 22 months without any other compliance issues as of the hearing date. This has bearing on his level of risk. [ 28 ] Dr.

Joneja concluded that given the “criminogenic factors of identified behaviours exhibited by Mr. Fawcett”, he was at a moderate risk of sexual violence recidivism. I say again that the criminogenic factors of identified behaviours are not supported in fact other than the incident now before the court.

However, apart from those sexually inappropriate behaviours she believed to be accurate, she also identified problems with self-awareness; minimization of sexual violence; psychological coercion in the perpetration of sexual violence; potential problems resulting from exposure to violence in his childhood; attitudes that condone sexual violence and sexual deviance; problems with inter-personal relationships; impulsivity; possible difficulties with stress or coping; and potential problems with planning, treatment and supervision as contributing to the recidivism risk. Dr.

Joneja expressed concern that there would be few factors that could mitigate this risk except for scrutinous monitoring. She recommended that other protective factors included limiting his use of mood altering substances. She found however that he had limited support in the community and few structured pro-social activities that might act as deterrents. [ 29 ] Dr. Joneja also observed that Mr. Fawcett may be aware that sexual contact with a minor is against the law, but may not comprehend the reason for it. This influenced her assessment of his risk of recidivism.

Minimization and denial might prevent him from considering the harm he had caused others and her suggested therapy would be useful in challenging those defence mechanisms and distortions.

[ 30 ] Dr. Joneja also found that resistance to interventions may suggest Mr. Fawcett does not fully appreciate the serious nature of his offending behaviour. This she felt served to maintain attitudes that condone anti-social and deviant behaviour. This would undermine therapeutic success. She expressed concern that Mr. Fawcett may be unable to benefit from group therapy from sex offender treatment because his ability to profit from it might be limited due to his cognitive deficits.

Also because of those cognitive limitations, she opined that he would require additional support to participate and derive any benefit from a sex offender treatment programme. She noted that such services are not available in the Kamloops region but may be available in the Lower Mainland. To improve the treatment efficacy, his motivation to participate would need to be reviewed periodically. [ 31 ] Finally, Dr. Joneja opined that the effectiveness of any programme would be substantially dependent on Mr.

Fawcett’s “sustained motivation to change and his willingness to accept the change that is both beneficial and necessary”. She recommends a stable living environment with a focus on rehabilitation, active participation and structured daily or weekly run programmes to promote interest and engagement in self-affirming activities, and which address emotional regulation and distress tolerance. These would likely decrease Mr. Fawcett’s susceptibility to destabilizers that would otherwise result in a risk of ongoing interpersonal difficulties and a risk of sexual violence. [ 32 ] As I noted, Dr.

Joneja also testified in person at this sentencing hearing. Her testimony elaborated on the

definitions, parameters and limitations of her findings. She saw deficits in Mr. Fawcett’s ability to anticipate how others are reacting. She elaborated on the complexity of how Mr. Fawcett is capable of doing certain mechanical things, while exhibiting an extremely low full-scale IQ.

She concluded that with an adequate amount of support and simplified instructions, he would be capable of successfully incorporating programmes or treatments suggested by her in her report. [ 33 ] She was also able to clarify and confirm that there is not a solid basis for her findings that there may be a psychopathological component to Mr. Fawcett. It appears that much of this personality disorder may have been premised upon his “odd speech” where he referred to sensing the presence of “Doug”.

This alluded to the possible presence of delusions or hallucinations; but not only have they resolved, there was no real foundation to determine the presence of such a personality disorder in the first place. [ 34 ] More troubling to me is her assessment of his grooming behaviours. While the words he used certainly suggest a grooming behaviour, the immaturity and naiveté that emerges from a plain reading of those texts jars considerably with Dr.

Joneja’s finding that these are the kind of grooming behaviours that suggest much more manipulation and planning than either the text messages or the psychological report would suggest Mr. Fawcett would be capable of. When she discusses the typical grooming behaviours and sexualisation of communications coming from Mr. Fawcett, it has to be against the context of his limited intellectual capacity. This is demonstrated in this exchange between Mr. Kay and Dr. Joneja: Q: What are we to make of that repetitive comment even in the absence of any type of reciprocal comment?

A: So I can only speculate on that, that it was – it was text more of an interest on what purpose the child serves sexually, as a sexual object, as opposed to establishing a relationship with another person and – and concerned about the wellbeing or how the other person is feeling. It’s about one’s own gratification. Q: And how does that relate to the fact that he has diminished capacity? A: I am not entirely sure.

This is because I have seen very similar behaviour in people who are above average intelligence (page 22, line 41 – page 23, line 8). [ 35 ] In fact, this is a common theme throughout the examination of Dr. Joneja. Much of it is speculation based on the standard exhibited by an average intelligence or above-average intelligence offender and not anything specific to someone of Mr. Fawcett’s intellectual deficits. The most troubling aspect is that Mr. Fawcett clearly believed himself to be in love with this person based on the relationship that had commenced initially on Scout.

Once invested in it, he did not deviate from this passion even after the imaginary Taylor told him she was only 12. [ 36 ] It is this aspect of his reasoning, his emotions and his demonstrated lack of capacity that distinguishes him from other offenders committing the same offence. This is demonstrated in the following exchange between Mr. Kay and Dr. Joneja: Q: Fair enough. Would you agree that Mr. Fawcett’s disability has probably influenced his behaviour to some degree? A: There is a possibility that it has.

For example, when we talked about the cognitive or effective instability, also again associated with potential deficits with executive functioning, that might influence one’s perception that this relationship is more – has more significance for him than, say, the victim does. Or he might develop more romantic feelings that are – than are what may be considered reasonable for another person. And I am not saying with deficits or without, I am just saying another person.

Also, the idea of, in this regard, when it comes to the cognitive instability, I did see evidence that there was some stability because he did apologize, if I remember correctly, in the text message, you know, “sorry for going there this quickly,” or talking about love so quickly, so that might – if those were genuine feelings, that might reflect on the effective instability.

But there was some evidence of the cognitive, saying, you know, “I understand that this may – may be going too fast for you.” So there was some evidence that he was able to consider how this may have affected the victim (page 27, line 26 - page 28, line 5). [ 37 ] Dr. Joneja also concluded in the report that Mr. Fawcett did not necessarily meet the diagnostic criteria for paedophilia. She explained in her testimony that she observed Mr. Fawcett did not exhibit a specific sexual interest in underage females.

She noted that he had been married in the past to someone who was identified as having intellectual deficits herself. [ 38 ] She also explained that while Mr. Fawcett has demonstrated that he knows it is against the law to have sexual contact with minors, it may well be that he does not fully comprehend the reason that it is not permitted. He may not have the capacity to understand the psychological damage such contact would have or to translate it into difficulties the victim might have later in life.

[ 39 ] With respect to the inaccurate information that she had relied upon as part of her assumptions, Dr. Joneja said that the police contacts did not factor as much as the allegations and charges for the sexual assault, but do provide some indication about behaviour. Without some information on what those police contacts were, I am not satisfied that I can rely upon this information more than very peripherally. [ 40 ] Mr. Carot rightly invited me not to consider Dr. Joneja’s reference to being the subject of investigation 95 times between 2008 and 2015.

There is simply no information before me to determine whether these were actual investigations or merely contacts, or whether he was a witness, complainant, nuisance, or the actual target of any of those investigations. [ 41 ] Similarly, with respect to her findings that Mr. Fawcett subverted the law by using different names, she explained that when she is provided with aliases and information that somebody would present both names to law enforcement agencies, she feels that this alludes to an intention to “try and derail the laws of justice”. Dr. Joneja had no idea when Mr.

Fawcett had legally changed his name or when he stopped using it in his interactions with the police. This was an important oversight. [ 42 ] With respect to the sexual offence charge in 2002, Dr. Joneja agreed that she did not have any circumstances or information with respect to why those charges were ultimately stayed. Her response to counsel’s query about whether she even knew if the incident alleged had happened, Dr. Joneja said: A: … So charges are – would suggest that there was enough evidence to bring forward for consideration by the court.

And it when it comes to using the actuarial risk assessment of the static – 99R, charges are incorporated into that. They are considered as offending behaviour when it comes to a criminal history. Charges, not just arrest or convictions. [ 43 ] This is quite an alarming thought. While charges may ultimately be approved by crown and still stayed ultimately, charges advanced by the police and not yet reviewed by the crown or fully investigated by the police should not be given equal footing. That is because charges may well be false or insupportable in evidence.

That they could factor so importantly into a risk assessment for sex offending is troubling. [ 44 ] When Mr. Carot questioned Dr. Joneja regarding the 2002 sexual offence charge, he refreshed her memory that in fact Mr. Fawcett was released on conditions with no charges proceeding. Her response was that even the release on conditions was far enough in the criminal proceeding to be counted by the static-99R. However, the static-99R itself does not speak of bail conditions. Dr. Joneja then said that she did not in fact count the 2002 bail conditions. [ 45 ] Mr. Carot directed Dr.

Joneja to the charge that did flow from the incident in 1988. This was the one she referred to being in 2002. She considered the Report to Crown Counsel to be an official court document. She agreed that she does not receive the details of those charges or even the convictions. It is a very significant assumption to make on a sentencing without supporting facts. [ 46 ] Dr. Joneja was able to advise that Kamloops has a Forensic Sex Offender programme run by the Forensic Psychiatric Services. It is this programme Dr. Joneja was referring to when she said that Mr.

Fawcett would need additional support to make sense of the content and to be able to complete the required exercises as well as be able to apply what he has learned in the community. She said that this extra support would be one-to-one interaction so that the instructor could simplify some of the ideas. [ 47 ] At the end of the day, much of Dr. Joneja’s opinion is speculating on what Mr. Fawcett must have meant by his text messages. Her opinion is well grounded in the science of psychologically, particularly forensic and clinical psychology.

However, it remains the role of the judge hearing the case to determine the ultimate question based on the facts of each case. While it is valuable information for me to know typical behaviours of offenders not under the constraints of cognitive challenges, Mr. Fawcett’s limitations, and Dr. Joneja’s advice respecting what Mr.

Fawcett will need for rehabilitation, I must also consider the evidence of his mental incapacity, his social limitations, and his significantly reduced moral blameworthiness because of these factors. [ 48 ] The text messages display a person who very obviously suffers from cognitive disabilities. What Dr. Joneja considered could be calculated grooming is, in the context of Mr. Fawcett’s cognitive abilities and social history, much less calculated. While he is fearful of being discovered by the imaginary Taylor’s mother or the police, he is also eager to gain the approval of the imaginary Taylor’s mother.

While he is certainly encouraging sexual contact, he equally believes himself to be in love with a person he has never met and who has demonstrated themselves not to be the person she initially represented on Scout, and whom he also hopes to marry. It does not occur to him that marriage is simply not possible with the imaginary Taylor. Astonishingly, he believes he can even introduce her to his friends and family. While this could well be grooming if it were communication from a person of average or greater intelligence who intended to manipulate a young girl, it is much less plausible that it is so from Mr.

Fawcett. [ 49 ] In the pre-sentence report, the Community Corrections probation officer, Shannon Stiles, said that a person convicted of a sexual offence and sentenced to less than two years custody would be subject to classification that would assist in determining whether he was eligible to serve the sentence at Ford Mountain Correctional Centre.

If he were sent to Ford Mountain, and satisfied the criteria established by the Forensic Psychiatric Services Commission, he would be referred to the forensic sex offender programme. [ 50 ] The programme follows a cognitive behavioural therapy model, including group discussions, individual exercises, written assignments, and individual presentations to the group.

While I have been given a description of the programme’s important components such as cognitive distortions and management strategies, empathy and victim awareness, intimacy, relationships and social functioning, emotional wellbeing, and sexual arousal and fantasy, it is unclear what the prerequisites would be for Mr. Fawcett and whether he could qualify for such a programme. In addition, he would have to be incarcerated for 12 to 18 months in order to allow sufficient time to complete the programme. It is only 12 weeks in length, but he would be placed on a wait list prior to being assessed for suitability.

The crown seeks a jail sentence of nine to twelve months, and so even if his special requirements could ultimately be met in custody, very important treatment and counselling would not be available in that time. [ 51 ] This same programme is offered on an outpatient basis to sex offenders who are subject to community supervision orders. Mr. Fawcett would still have to satisfy the criteria established by the Forensic Psychiatric Services Commission. If he does meet that criteria, the probation officer would refer him to the programme where he would be assessed by a clinician to determine his ultimate acceptance

into it. [52] Whether he completed the forensic sex offender programme in custody or out of custody, he would then be referred to thesexual offender maintenance programme, which is facilitated by probation officers in the community and is described as “an integralcomponent in the continuum of services for sex offenders”. [53] There is an agreed statement of facts also filed with respect to BC Corrections Services. This is an important component indetermining Mr.

Fawcett’s suitability for incarceration as well as the availability of programmes for him. [54] All incoming inmates in all correctional centres in British Columbia are classified by a team that considers the events, thesentence and the personal circumstances of each inmate. The personal circumstances include a medical and mental health review. Allcorrectional services are provided services from the Provincial Health Services Authority (“PHSA”). Medical and mental healthscreening of each inmate is done by that medical team from PHSA and not correctional staff.

This is a full health review by a registerednurse and a psychiatric health screener. [55] If there are issues that will impact a safe or effective management of an inmate, the health care manager advises the DeputyWarden of Programmes or of Operations. The health care manager reviews and audits the screening process and changes an inmate’splacement if it is warranted.

This process includes obtaining, where the inmate consents, information regarding medical conditions andtreatment as well as Pharmacare records. [56] For inmates with health concerns, they may have separate confinement or be transferred to a provincial facility that is better ableto accommodate them. [57] There are three categories of placement for the inmates. These include general population, protective custody, or inmates withmental health needs. Ideally, inmates sentenced for sexual offences are classified for protective custody and placed in that unit.

Eachperson is different depending upon media coverage, profile or otherwise. An inmate may elect to have general population status andwould be placed in that unit. [58] Any inmate who fears for his safety may elect to have protective custody status. If an individual does not have success in thenormal living unit situation, such confinement may be imposed. Each unit is monitored by one correctional officer.

It appears that thismay be unique to Kamloops Regional Correctional Centre (“KRCC”) because the units are identified by the number of inmates housedin each unit. [59] There is no interaction between the protective custody inmates and the general population inmates. Inmates in the IMHN unitare classified with general population inmates but do not mix with general population units or other inmates. It is acknowledged this canhappen but it is rare. [60] The agreed statement of facts has a general description of the set-up of the units and access to facilities.

KRCC does not providespecific programmes for individuals with cognitive deficiencies, but may house those individuals in the IMHN unit. [61] KRCC’s core programmes that target behaviours such as violence, substance abuse and relationships are intended for groups ofpeople who can keep up with reading, thought organization and writing. The core programmes are facilitated by corrections officers whoare trained for the role, but they cannot alter the course content. [62] KRCC does not have sex offender specialized programmes.

Ford Mountain has those specialized programmes but they areoffered only at specific times throughout the year. It is a remote facility so inmates with certain health concerns may not be suitable.Also, to be admissible to Ford Mountain, the inmate must be classified as medium security, have no potentially life threateningconditions and must be able to live and conduct himself in a productive and compliant manner. [63] It is clear that Mr. Fawcett could not participate in the sex offender programmes without additional dedicated assistance. Thatassistance would not be provided by Corrections. It is unclear if Mr.

Fawcett would qualify for that specialized unit anyway and may endup housed in the mental health unit. [64] As I have said, it is accepted that the first step in these proceedings before considering the constitutional challenge to themandatory minimum for this offence is to consider what a fit sentence is in the absence of that mandatory minimum. [65] In considering the gravity of the offence, I may take into the consideration the fact that parliament has chosen to impose amandatory minimum sentence.

It is a reflection itself of the gravity of the offence. [66] The nature of the offence and the circumstances of this case are very serious. Mr. Fawcett’s text messages became sexuallyexplicit after Mr. Fawcett discovered that the imaginary Taylor was 12. He persisted in that activity even though he became aware thatshe was inexperienced sexually and was nervous about engaging in sexual relations. Even when his cognitive challenges and naiveté aretaken into account, there are still elements of subterfuge and grooming that are troubling. [67] The crown also submits that I may consider the conviction Mr.

Fawcett has for breach of his bail conditions following thischarge, and the absolute discharge he obtained in 2016. The crown is not alleging that the absolute discharge is a prior conviction but itis, in Mr. Carot’s submission, an aggravating factor. Mr. Carot urges me to consider the facts that led to the one conviction in assessingMr. Fawcett’s risk to reoffend, citing R. v. Akumu, 2017 BCSC 1051 , 2017 B.C.S.C. 1051 and R. v. Aulakh, 2010 BCSC 1194, 2010 B.C.S.C 1194.

While these may be factors in the offender’s risk to reoffend and on sentencing, they are of little use if thefactors leading to those bail conditions, charges, stays or discharges - as the case may be - are not known. [68] With respect to the 2016 conditional discharge, Mr. Fawcett’s charge for wilfully resisting or obstructing police arose from anencounter with the police where he felt he and his friends were at risk. Mr. Fawcett was certainly yelling and obstructive, and was non-compliant on his arrest. However, his personal history demonstrates the fear and confusion he was experiencing at that time. His

historical encounters with the police when he was much younger influenced his fearful reaction. I consider this conditional discharge aswell as the allegations of an investigation and stayed charges to be of lesser significance. [69] Mr. Carot submitted that if Dr. Joneja was basing her risk assessment on the fact that Mr. Fawcett was previously charged foralleged misconduct, then R. v. Lavalee, (SCC), [1990] 1 S.C.R. 852 is engaged. Before any weight can be given to anexpert’s opinion, the facts upon which the opinion is based must be found to exist.

On this point, they do not exist. [70] With respect to victim impact, there was no victim in this case. It is a misguided and ill-plotted case of Creep Catchers’ luringan intellectually challenged person who was seeking adult companionship into communicating with an imaginary 12 year old. ChantelleBradner essentially induced Mr. Fawcett into committing an offence that had not occurred to him to engage in. Absent the vigilanteactions of Ms. Bradner and the Creep Catchers, it would not have happened. There is no indication that he has any of the indicia ofpaedophilia.

He had an age-appropriate wife from whom he has separated but not divorced. The site on which Mr. Fawcett met Ms.Bradner was an adult one and her profile included a picture of an adult woman. Her stated age was 19. SENTENCING PRINCIPLES [71] The sentence I impose must be proportionate to the gravity of the offence and the degree of responsibility of Mr. Fawcett. Mr.Carot argued that the gravity of the offence is reflected by the maximum penalty available in the Criminal Code. It is also reflectedwhen a mandatory minimum is imposed (R. v.

Hathaway, 2018 BCPC 342 , 2018 B.C.P.C. 342). [72] There must also be parity between offenders. In other words, a sentence should be similar to sentences imposed on similaroffenders for similar offences in similar circumstances. [73] Mr. Carot argued that, in child luring, the primary sentencing principles to be emphasized are denunciation, deterrence, andseparation of the offender from the community. [74] Under s. 718.01, sentencing for offences involving abuse of a person under the age of 18 must give primary consideration to theobjectives of denunciation and deterrence.

It is also an aggravating factor under s. 718.2. In addition, I was provided with a number ofcases that speak to the same principle of denunciation, deterrence and separation from society. [75] Of those cases, in R. v. Rafiq, 2015 ONCA 768 , 2015 O.N.C.A. 768, the Ontario Court of Appeal said this aboutsentencing principles in child luring at paragraph 27: [27] In R. v.

Folino (2005), (ON CA), 77 O.R. (3d) 641, this court stated that the offence of child luring must bedealt with seriously to protect vulnerable children from predators who use the Internet to lure them into situations in which they can beexploited and abused. The sentencing objectives of denunciation and deterrence require a sentence of incarceration in most cases.

Aconditional sentence will only be appropriate in the “rarest of cases”. [76] Also in Rafiq, the court considered the impact the internet has made with respect to these offences even where there is notphysical contact: [44] While these observations were made in the context of direct physical sexual abuse, the Internet has made it possible for abusersto get into the victim’s head and abuse remotely. The abuser can tell the victim what to do and how to do it, and record it – in text, video,or photograph – all for the abuser’s gratification.

Thus, through manipulation and control over time by an adult abuser, the child victimbecomes a participant in her own sexual abuse. [45] I see no reason to believe that the psychological consequences of such abuse are likely to be significantly less serious than theconsequences of direct physical sexual abuse. The extent to which they will occur in any particular victim is impossible to predict. In thiscase, however, the mother had the advantage of observing her daughter over a four-year period.

She spoke poignantly about her isolationfrom her sister and her family, and the impact of the events on her “ability to love and be loved.” [77] While the fact that there is no victim reduces the seriousness of the offence, it does not reduce moral blameworthiness (R. v.Rafiq; R. v. Harris, 2017 ONSC 940 , 2017 O.N.S.C. 940)). [78] A number of aggravating, mitigating and other factors were set out in the decision of R. v. Bell, 2018 BCPC 187 , 2018B.C.P.C. 187 by my brother, Judge Brecknell at paragraphs 44 to 46.

They are a useful guide for my consideration. [79] Since there was no actual victim in this case, many of those factors are not applicable. Of most concern are the volume ofcommunications, the duration, the persistence, the graphic sexual content, and the attempt to meet. There was no targeting; the groomingbehaviour is present but is naïve and immature; his risk of recidivism is set at moderate but there are foundational problems with that riskassessment; Mr.

Fawcett did breach his release terms by accessing the internet after his mother improperly allowed him to have a phone;but he has otherwise gone nearly two years without compliance issues. [80] The law is established that an offender’s mental health or cognitive issues may be mitigating factors only if they are causallyconnected to his or her offending. A number of cases were cited to this effect.

It is an error in principle to assume automatically that anoffender’s moral blameworthiness for an offence is reduced automatically because of that mental illness or other cognitive limitation.The burden is on the offender to prove the relevant facts relating to any such mitigating factors and its potential causal connection. [81] Mr. Carot argued there must be cogent evidence before the court can find as a matter of fact that there is a causal connectionbetween Mr. Fawcett’s mental health and his offending. A number of cases were cited to that effect. [82] It is not contested that Mr.

Fawcett has cognitive disabilities that may have contributed to the offending. However, Mr. Carotargued that there does not appear to be any insight on Mr. Fawcett’s behalf about his offending behaviour. This was canvassed somewhatthrough Dr. Joneja. It appears that it is the abstract complexities rather than the fact of right and wrong that bemuse Mr. Fawcett.

[83] Mr. Fawcett was induced into committing this offence by the Creep Catchers who had a misguided notion that their vigilantismis an appropriate means of capturing potential child sex offenders. Mr. Carot argued that in R. v. Devic, 2018 BCPC 257 , 2018B.C.PC. 257, my brother Judge Sutherland said sentencing is not a platform to condemn the actions of third parties through a substantivechange to the sentence of the offender (paragraph 39).

Judge Sutherland added that this should in no way be seen to endorse or condonethe methods and actions of the Creep Catchers noting “self-deputized vigilante groups are dangerous to citizens and interfere with theadministration of justice and the work of law enforcement agencies”. [84] While the same can certainly be said in this case with respect to the gravity of the offence, the same cannot be said for Mr.Fawcett’s moral blameworthiness.

As I have said, the Creep Catchers induced a cognitively challenged person who was not setting out tocommit an offence into committing an offence, preying upon his cognitive disabilities in the process. This reduces his moralblameworthiness along with the other factors I have mentioned. This is precisely why such vigilante organizations are dangerous to allcitizens and interfere with the administration of justice. [85] Mr. Carot concedes that collateral consequences to Mr. Fawcett can be taken into consideration because of actions of the CreepCatchers. In this case, as Mr.

Carot pointed out, the Creep Catchers posted the internet videos relating to their “investigation”. In actionsthat can be likened to obstruction of justice, Ms. Bradner informed the police on February 3, 2017 that she had the text messages andvideo. She said she would send those messages and video to the police the next day. It was not until February 23, 2017 after she hadposted the video and the text messages for some time that she forwarded the information to the police.

It is very clear that the CreepCatchers are less interested in stopping an offence in progress than they are in self-aggrandisement. [86] It is equally clear that the Creep Catchers are more interested in public shaming and the court of uninformed public opinionthan they are in law enforcement, the rule of law, and the administration of justice – processes that have evolved over time throughparliament and the courts to protect the victims, the rights of the accused, the public and the innocent.

The danger is not only the harmthat can come to a person through unproven accusations but the risk that this activity will generate more vigilante justice. Their poorconduct disclosed, well before charges were ever laid, Mr. Fawcett’s identification, the identity of his vehicle, sufficient evidence abouthis vehicle that his home address could be found, his phone number, and the location of his residence. Such collateral consequences arerelevant to the sentencing analysis. In Devic, the court said at paragraphs 35 and 36: [35] Collateral consequences have a place in the sentencing analysis.

They are not necessarily aggravating or mitigating factors unders. 718.2 (

a) of the Code but they are part of the personal circumstances of Mr. Devic. They may also be relevant to the sentencingobjectives of general and specific deterrence, and denunciation: R. v. Suter, 2018 SCC 34 , at para. 48. [36] There is a limit, however, on the influence collateral consequences play in formulating a proportionate sentence. Where theconsequence is an obvious one that inevitably flows directly from the commission of the offence, conviction, or sentence, then itsmitigating effect is reduced: Suter, at para. 49.

Furthermore, the collateral consequences suffered by an offender cannot eclipse the needfor a sentence that emphasizes general deterrence and denunciation: R v. Cook, 2010 ONSC 5016 ; R. v. Greenhalgh, 2011BCSC 511 , at para. 52. [87] Vigilantism factors into sentencing where there has been violence done. Putting a person to the risk of violence and exposing aperson to public censure before charges are laid or a trial heard are also properly – albeit lesser – factors (R. v.

Suter, 2018 SCC 34, 2018 S.C.C. 34 at 56). [88] Balanced against these concerns is that giving vigilante “justice” too much weight on the sentencing gives undue legitimacy toit in the judicial process. The court cautions against doing so saying “vigilantism undermines the rule of law and interferes with theadministration of justice. It takes justice out of the hands of the police and the courts, and puts it into the hands of criminals.

As a generalrule, those who engage in it should be expected to be treated severely.” (Suter, para. 58). [89] It is clear that the conduct of others cannot be used to reduce the sentence below a mandatory minimum (R. v. Nasogaluak,2010 SCC 6 , 2010 S.C.C. 6). [90] I do not take into consideration as a mitigating factor that the Creep Catchers were behind the fictional 12 year old. I doconsider it at least notionally a factor that the Creep Catchers engaged in the repugnant behaviour of posting the videos and textmessages as well as all of the identifying information about Mr.

Fawcett before providing that information to the police so that the policecould conduct a proper investigation and lay charges. It cannot be a significant reduction in his sentence as a result because there is noreal means to assess any harm that has come or could come to Mr. Fawcett; and some of the information that has been posted is alsocontained in the public record. [91] While there was no violence done to Mr.

Fawcett in this case, almost certainly there was an obstruction of justice, mischief,interference in the administration of justice, and undermining of the rule of law from beginning to end. [92] Additionally, publicity itself is a consideration in sentencing. There were nearly 2000 views of these postings in the evidencefiled on these proceedings. The internet leaves a permanent imprint on an increasingly smaller world. The Alberta Court of Appeal foundin R. v.

Ewanchuk, 2002 ABCA 95 , 2002 A.B.C.A. 95: [68] We conclude that the sentencing judge did not err in taking judicial notice of the publicity surrounding Ewanchuk’s case. Nor didhe err in drawing the reasonable inference that this publicity had the effect of conveying [public] denunciation and providing specificdeterrence. Nothing in his reasons for sentence suggests that this sentencing judge placed undue emphasis on publicity.

However, wecaution that, without specific evidence of publicity and its effect on a particular offender, the weight to be placed on publicity as amitigating factor may be limited. [93] In this case, the collateral consequences to Mr. Fawcett of posting the video, all his personal information, and the text messagesis not measurable at this point. There is no indication to what extent the publicity negatively affected or will affect Mr.

Fawcett.Additionally, while the Creep Catchers posted this information prior to any investigation being embarked upon - much less beforecharges were laid - some of the information would have been posted in the normal course of criminal proceedings. As Mr. Carot pointed

out, though, the source of the information is not from mainstream media who are guided by ethics and rules. Mr. Carot agrees that theCreep Catchers’ unethical practice of posting the evidence prior to a police investigation or charges ought to be strongly discouraged.However, I must exercise caution in determining the degree to which this conduct should be an “other” factor I consider in sentencing. [94] Mr. Carot argued that it is difficult to make concrete conclusions about how many people actually viewed the content or howmuch of it they viewed.

He also argued that the global reach of the internet makes it hard to ascertain if those who viewed the videoswere members of the Kamloops community. However, the nature of the internet and the ease and permanency of access to thisinformation is the very consideration that makes it less relevant whether persons within the Kamloops community viewed the video andmessages. In other words, the internet has a broad reach. The harm that can be brought about by the misuse of it can be great regardlessof the location of the target and the users.

The Creep Catchers – and indeed the public – are most fortunate that no harm appears to haveflowed to Mr. Fawcett because of this vainglorious conduct. RANGE OF SENTENCE [95] Mr. Carot provided me with a number of cases establishing 12 to 24 months as the appropriate range taking into accountaggravating and mitigating factors. Sentences of less than 12 months are appropriate where there are particularly mitigating factors and asentence of six months was considered a lenient sentence requiring a number of mitigating factors. A conditional sentence order wouldbe appropriate only in the rarest of cases (R. v.

Rafiq, para. 27). [96] Balanced against the acknowledged mitigating and other factors, Mr. Carot emphasized that Mr. Fawcett believed he wascommunicating with a 12 year old. The content of the text messages is concerning and contained graphic sexual content. However, Mr.Carot acknowledged the disconcerting naiveté in those messages particularly given that Mr Fawcett thought he could marry a 12 yearold. Mr. Carot submitted that whether this was a ploy to lure the girl or something Mr. Fawcett actually believed, it is alarming. Hedescribed Mr.

Fawcett’s conduct as “a shocking lack of boundaries and predatory behaviour”. Based on the foregoing, he submitted thatthe court cannot be reasonably confident that Mr. Fawcett would not reoffend. He cites the psychological report which corroborates theseviews. [97] It is a mitigating factor that there was no real victim. However, that mitigating factor may not necessarily reduce the sentence(R. v. Alicandro, 2009 ONCA 133 , 2009 O.N.C.A. 133). [98] While citing R. v. Swaby, 2017 BCSC 2020 , 2017 B.C.S.C. 2020 and 2018 BCCA 416 , 2018 B.C.C.A. 416and R. v.

Scofield, 2018 BCSC 91 , 2018 B.C.S.C. 91 and 2019 BCCA 3 , 2019 B.C.C.A. 3, Mr. Carot submitted thatMr. Fawcett, due to his cognitive impairments, poses a real risk to the public. He cited from my brother Judge Koturbash in R. v. Leer,2017 BCPC 235 , 2017 B.C.P.C. 235, from paras. 72 and 124: [72] The risk that a person poses to the community as a result of the mental disorder is an important consideration where the illnessmakes the individual dangerous. Some offenders suffer from disorders that defy treatment that renders them unlikely candidates forrehabilitation. R. v. Levy, [1990] BCJ No 319 (BCCA); R. v.

Desjardins-Paquette, 2012 ONCA 674 ; R. v. Virani, 2012 ABCA 155 ;R. v. Ayorech, 2012 ABCA 82 [124] The protection of the public is always the most important consideration. In this case, it looms large. Despite her mental healthissues, and youthfulness, Ms. Leer presents as a high risk to re-offend. Untreated, Ms. Leer is a danger and unfortunately, her continuedremoval from the community is necessary. Although I am not ignoring the objective of rehabilitation, this objective must initially beaddressed in a custodial setting.

I hope that in a structured environment she will take advantage of the programming and treatmentoffered to help her gain insight into her behaviour, and learn ways to control it. [99] I do not have before me satisfactory evidence that the cognitive challenges, lack of intellectual capacity to gain insight, or theextra and specialized counselling Mr. Fawcett will require as a result of his cognitive challenges make him a danger to the public on thefacts of this case. I have no evidence that his challenges defy treatment or render him an unlikely candidate for rehabilitation. I am notsatisfied either that Mr.

Fawcett is a moderate risk to reoffend as Dr. Joneja has stated in her report and testimony. The foundations forthat moderate risk to reoffend do not take into consideration among the myriad other factors that Mr. Fawcett was induced intocommitting an offence not otherwise considered by him; counselling and support exist outside of incarceration but demand one to onesupport; and he has been on bail terms for 22 months without further compliance issues. [100] In his decision on an appeal from sentence in R. v. Swaby, [2017] B.C.J.

No. 2250, Justice Marchand concluded that goodperformance on bail was not a mitigating factor, but was relevant to the consideration of risk (paras. 99 and 100): [99] In R. v. R.M.D., 2014 BCCA 56 at para. 7, the court casts doubt on whether compliance with bail can be considered amitigating factor. Nevertheless, Mr. Swaby’s ability to comply with a stringent court order is relevant in a number of ways. From theCrown’s perspective, it helps demonstrate that Mr. Swaby has a heightened level of functioning. From the defence perspective, it helpsdemonstrate that Mr. Swaby presents a reduced risk to the community.

Again, it was important for the sentencing judge to take intoaccount Mr. Swaby’s performance on bail in his consideration of all the circumstances. [101] Precisely the same consideration applies in considering the 22 months that Mr. Fawcett has not had any trouble with compliance.It is not a mitigating factor on his sentence but it certainly puts into perspective his reduced risk to the community as well as his ability tocomply with a sentence within the community. [102] Mr. Kay, on behalf of Mr.

Fawcett, did not dispute the law, the stated ranges or the appropriate aggravating, mitigating and otherfactors to be considered. He also highlighted the gravity of the offence. However, he argued that cognitive deficits are mitigating factorsin sentencing where that link is established between the deficits and the offending conduct. So where Mr. Carot argued that Mr.Fawcett’s cognitive impairment presented as a danger to society, Mr. Kay argued it ought to be a mitigating factor. Mr. Kay referred toR. v.

Scofield, where the same psychologist said that the offending behaviour was not a direct result of the disability but it probably

influenced his offending behaviour to some degree. The same is said for Mr. Fawcett. [103] While Dr. Joneja did not specifically link Mr. Fawcett’s behaviour and his disability, her report certainly supports it. She foundhim to be psychologically naïve, lacking in insight, demonstrating significant difficulty with complex planning and strategy formation,perseveration, impulsivity, and low frustration tolerance. She found these to be indicative of deficits in executive functioning warrantingfurther investigation. [104] Mr. Kay also highlighted Dr. Joneja’s views of Mr.

Fawcett’s risk of recidivism saying that they appeared to be influenced byhis limited awareness of his behaviour and the psychological harm such behaviour could have on others; that he may not fullycomprehend the reason why sexual contact with a minor is against the law; and that his minimization and denial may prevent him fromconsidering such harm. [105] Mr. Kay argued that while Mr. Fawcett is not able to articulate his remorse well, he does have regret for his actions. While hemay not understand the abstract concept of harm to a child who does not exist, he accepts that what he did was wrong.

Given hiscognitive impairments, it is not surprising that he is grappling with the concept of harm where there was no real child involved. [106] Mr. Fawcett does have the support of his mother, and he is willing to engage in counselling to help him understand and preventhis offending behaviour. [107] In his submissions, Mr. Kay acknowledged the grooming-type behaviour exhibited in the sexually explicit messages and the factthat Mr. Fawcett did attempt to meet the fictional 12 year old. [108] There was some discussion that Mr.

Fawcett may have difficulty adapting to incarceration because of his intellectual deficits andpersonal characteristics, that he is fearful of being the target of abuse by inmates, and that he is quite afraid of incarceration. [109] Mr. Kay acknowledged that the sentencing range is 12 to 24 months incarceration but highlights lesser sentences imposedfollowing the successful challenges of s. 12 to the mandatory minimums. [110] In R. v.

Hood, 2018 NSCA 18 , 2018 N.S.C.A. 18, the Court of Appeal upheld the lower court striking the one yearmandatory minimum and upheld the 15 month conditional sentence plus probation order. I note that in that case, the accused was bipolarand had not only sent sexually explicit texts to two students, but engaged in sexual intercourse with one of them. Mr. Fawcett does nothave the apparent intellectual capacity of this offender. [111] In R. v. Randall, [2018] O.J.

No. 3812 (O.N.C.J.), the court found that the mandatory minimum of six months violated s. 12 ofthe Charter, imposed a 90 day sentence to be served intermittently, and imposed a three year probation order. That accused was 50, hadno prior record and had placed an ad on the internet to meet girls of any age. Mr. Fawcett did not set out to find an underage female or tovictimize a child. He was looking for adult companionship. [112] In R. v. B.S., [2018] B.C.J. No. 3680 (B.S.S.C.), the mandatory one-year minimum sentence was struck and a six month jailsentence imposed.

In that case, the accused was also convicted of sexual interference. He was an aboriginal offender. His victim was 13and related to him. The luring particulars were not either implicitly or explicitly sexual but his messaging was persistent. There is nosuggestion that the offender had cognitive challenges similar to Mr. Fawcett. [113] Mr. Carot submitted that if I did impose a conditional sentence order, it would be in the range of 18-24 months. A sentence ofsuch length would be an important consideration under the

section 12 analysis. [114] Bearing in mind his reduced moral blameworthiness not only by reason of being induced into committing an offence that he hadnot set out to commit, but also given his significant cognitive impairment and, to some extent, evidence of his ability to be compliantwithin the community and thereby reducing the risk factor, I am satisfied that, absent the mandatory minimum, the fit sentence for Mr.Fawcett is a six month conditional sentence order followed by probation. [115] I say this emphasizing that a conditional sentence order is typically longer than a jail sentence.

I have taken that intoconsideration. I also take into consideration that if Mr. Fawcett should breach the terms, there is a very real prospect that his conditionalsentence order would be terminated and he would have to serve the remaining sentence in jail. Following the six month conditionalsentence order, Mr. Fawcett will be bound by a period of probation for 24 months. I will come to the terms of both of these once I haveaddressed the issue of whether the mandatory minimum violates s. 12 of the Charter.

SECTION 12 [116] Having determined the fit sentence in this case, it is clear the constitutional challenge to the mandatory minimum is not a mootquestion. The mandatory minimum sentence is certainly higher and more severe than the one I have determined is a fit one. I turn now tothe analytical framework. [117] The onus is on Mr. Fawcett to establish a breach of the Charter on a balance of probability. A mandatory minimum sentence isnot in and of itself such a breach. Nor is the fettering of a sentencing judge’s discretion a breach. However, the fragility of mandatoryminimum sentences was addressed in R. v.

Nur, 2015 SCC 15 , 2015 S.C.C. 15, at paragraphs 44 to 45: [44] Mandatory minimum sentences, by their very nature, have the potential to depart from the principle of proportionality insentencing. They emphasize denunciation, general deterrence and retribution at the expense of what is a fit sentence for the gravity ofthe offence, the blameworthiness of the offender, and the harm caused by the crime. They function as a blunt instrument that maydeprive courts of the ability to tailor proportionate sentences at the lower end of a sentencing range.

They may, in extreme cases, imposeunjust sentences, because they shift the focus from the offender during the sentencing process in a way that violates the principle ofproportionality. They modify the general process of sentencing which relies on the review of all relevant factors in order to reach aproportionate result. They affect the outcome of the sentence by changing the normal judicial process of sentencing.

[45] General deterrence — using sentencing to send a message to discourage others from offending — is relevant. But it cannot,without more, sanitize a sentence against gross disproportionality: “General deterrence can support a sentence which is more severewhile still within the range of punishments that are not cruel and unusual” (R. v. Morrisey, 2000 SCC 39 , [2000] 2 S.C.R. 90, atpara. 45, per Gonthier J.).

Put simply, a person cannot be made to suffer a grossly disproportionate punishment simply to send a messageto discourage others from offending. [118] In this case, parliament has expressed the will of the public in the denunciation and deterrence of child luring through amandatory minimum sentence of six months for

summary conviction offences and one year for indictable offences. The mandatoryminimum sentence for indictable offences has already been struck down. That does not mean that the mandatory minimum for

summaryconviction offences ought to be struck down as well. [119] The test under s. 12 of the Charter is necessarily strict. Mr. Fawcett must establish that the sentence is grossly disproportionate. [120] The question is whether the sentence is so excessive that it would outrage the standards of decency of most informed Canadians;be so disproportionate that Canadians would find the sentence abhorrent or intolerable; or shock the conscience of Canadians (R. v.Smith, (SCC), [1987] 1 S.C.R. 1045; R. v. Morrisey, 2000 SCC 39 , 2000 S.C.C. 39, R. v. Lloyd, 2016 SCC 13, 2016 S.C.C. 13; R. v.

Swaby, 2018 BCCA 416 , 2018 B.C.C.A 416; and R. v. Al-Isawi, 2017 BCCA 163 ,2017 B.C.C.A. 163). [121] I was provided with numerous cases to assist in this assessment. I was also provided with extensive and very balancedsubmissions by both counsel. Following submissions, the decision of Judge Skilnick in R. v. Koenig, 2019 BCPC 83 , 2019B.C.P.C. 83 was delivered. He succinctly set out the test I must follow at paragraphs 30 and 31: [30] A judge of this court may not make a declaration that the mandatory minimum sentences are invalid.

The proper remedy is torefuse 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 applyit 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 toprovincial court judges in subsequent cases to decline to apply the law, for reasons already given or for their own; however, the lawremains 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 itdoes 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 mandatoryminimum sentence violates

section 12 of the Charter. [122] From there, Judge Skilnick considered the grossly disproportionate analysis at paragraphs 61 to 63: [61] An inquiry into whether a penalty is grossly disproportionate first involves an individual inquiry into the circumstances of theoffences and of the offender. This has been referred to as the “particularized inquiry.” If this does not result in a finding that the sentenceis grossly disproportionate, the sentencing court must next determine if the mandatory minimum sentence is grossly disproportionate inreasonable hypothetical situations.

This was explained by the Supreme Court of Canada in R. v. Latimer 2001 SCC 1 atparagraph 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 grosslydisproportionate in those particular circumstances, then a prima facie violation of s. 12 is established and will be examined forjustifiability 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 asevidenced in reasonable hypothetical circumstances” [62] As the Crown states in its written submission, during the particularized inquiry, “the sentencing judge must ask whether themandatory minimum sentence is grossly disproportionate when compared to the fit sentence… This requires an examination of thegravity of the offence, the personal circumstances of the offender and the personal circumstances of the offence to determine whether theimpugned sentence would appropriately address the applicable sentencing principles in

section 718.” If a sentence is grosslydisproportionate 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 ofrecent decisions. In R. v. Randall 2018 ONCJ 470 , the sentencing judge refused to apply the mandatory minimum sentence to acharge under

section 172.1 where the Crown proceeded summarily. The sentencing judge was concerned that, although the mandatoryminimum sentence for indictable offences had been found to violate the Charter, this was not yet the case for

summary convictionoffences, leaving some offenders subject to the mandatory minimum and others not, depending on how prosecutorial discretion wasexercised. The judge considered reasonable hypotheticals in which this different application of sentencing principles to cases where theCrown proceeded indictably, as opposed to where the Crown proceeds summarily, and concluded that the mandatory minimum sentenceoffended

section 12 of the Charter and was not saved by

section 1. [123] He also analysed some of the cases (also presented to me) relating to both child luring and child pornography at paragraphs 66 to68:

[66] In R. v. Hood 2018 NSCA 18 , the Nova Scotia Court of Appeal found that the mandatory minimum sentence undersection 172.1 “failed constitutional muster” and upheld a Conditional Sentence Order for an offender who ultimately had sexual contactwith two males aged 15 and 17. The court held that while the mandatory minimum sentence was not grossly disproportionate under theparticularized inquiry, the court considered a number of reasonable hypotheticals under which the application of the mandatory minimumsentence 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 theparticularized 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 oneyear". [68] Counsel have also referred to R. v. Swaby 2018 BCCA 416 , where the British Columbia Court of Appeal upheld a BCSupreme Court judge’s finding that the mandatory minimum sentence for the offence of possession of child pornography wasunconstitutional.

The Court of Appeal found that the mandatory minimum violates s. 12 both in respect of Mr. Swaby and in respect ofhypothetical offenders. It found the provision to be of no force and effect. GROSSLY DISPROPORTIONATE [124] If I concluded that a conditional sentence order meets the principles of sentencing, Mr. Carot submitted that it would be closer inlength to 18 to 24 months. Based on his assessment, I would have to assess whether six months in jail is grossly disproportionate to sucha conditional sentence order. This was the case before Butler, J. in R. v.

Picard, 2016 BCSC 2052 , 2016 B.C.S.C. 2052, whosaid at paragraph 36: [36] Given the high bar set for gross disproportionality, I cannot find that one year’s imprisonment for Ms. Stinson offends s. 12. I amof the view that a sentence of either six to nine months’ imprisonment or a 12- to 18-month conditional sentence, if available, would havebeen appropriate in this case without the mandatory minimum. The custodial sentence required by s. 7(2)(b)(iii) is not grosslydisproportionate to such a sentence.

A sentence that is merely higher than what would otherwise have been appropriate does not meet thelevel required to find that the punishment is cruel and unusual. [125] While it may be a matter for another day to consider a jail sentence of six months against a conditional sentence order of 18months, that is not the matter I have before me. A six month jail sentence is grossly disproportionate to the sentence I find fit for Mr.Fawcett in the facts of this case and with regard to his personal circumstances.

REASONABLE HYPOTHETHICALS [126] I have been provided a number of cases assisting in the assessment of reasonable hypotheticals. In R. v. B.S., 2016 BCSC 2468, 2016 B.C.S.C. 2468, 2018 B.C.S.C. 2044 and 2018 BCSC 2286 , 2018 B.C.S.C. 2286, the crown proceeded byindictment. The mandatory minimum was struck down. The accused was sentenced to six months. The clear result is that a personcharged with the indictable version of the offence could conceivably receive the same or lower sentence than Mr. Fawcett, who ischarged summarily. This very issue was considered by Wakefield, J. in R. v.

Randall, 2018 ONCJ 470 , 2018 O.N.C.J. 470, atparagraphs 44 to 47 and 50: [44] The prior holding that the minimum sentence of one year on indictable elections was unconstitutional has had an impact on thevalidity of the still surviving minimum sentence following a

summary election and upon the public perception, in my view, of thatimpact on sentencing and the role the Crown plays in creating that impact. [45] Indeed, I cannot think of any Crown counsel whom I have seen in court who would exercise their election discretion withimproper motives. Specifically, I am not finding improper conduct by any Crown, but rather the risk of public perception only. [46] As important as that prosecutorial discretion is reviewable only for abuse with the presumption that the discretion will beexercised in good faith (R. v.

Anderson, [2014] S.C.C. 41), which not only confirms the protected status of the discretion, but reinforcesthe separate distinct roles of Crown prosecutor and the sentencing justice. At paragraph 25, the Court states that, "It is the judge'sresponsibility to craft a proportionate sentence. If a mandatory minimum regime requires a judge to impose a disproportionate sentence,that regime should be challenged." That sentiment was reflected again by Justice Bacchus in R. v. Okoro, [2018] O.J.

No. 2102,referencing Nur, at paragraph 65. [47] However, that public perception would be observing a Crown's decision to elect summarily to deprive an offender of having thesame starting point in

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