R. v. Sinclair, 2022 MBPC 40

Citation: R. v. Sinclair , 2022 MBPC 40 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) D. Simard, ) for the Crown ) and ) ) Aaron Sinclair, ) Accused ) L. Kellie-McMillian, ) for the Accused ) ) ) Reasons for Decision delivered ) on the 22 day of July, 2022 ) A.D., at the City of Winnipeg, ) in the Province of Manitoba. Tracey Lord, A.C. P.J. [ 1 ] Mr. Sinclair was convicted after trial of communicating with a person under the age of 18 by means of telecommunication for the purpose of facilitating the offence of sexual exploitation pursuant to s. 172.1(1) (

a) of the Criminal Code of Canada (the Code ), commonly referred to as luring. ( see R. v. Sinclair , 2021 MBPC 41 ) [ 2 ] As the Crown proceeded by indictment, s. 172.1(2) sets out a maximum jail sentence of 14 years and a minimum jail sentence of 1 year upon conviction. [ 3 ] Counsel for Mr. Sinclair argues both the factual circumstances of the offence and the personal circumstances of Mr.

Sinclair support the imposition of a sentence of less than one year and challenges the mandatory minimum sentence, submitting it violates s. 12 of the Canadian Charter of Rights and Freedoms (the Charter ). [ 4 ] The Supreme Court of Canada and the Manitoba Court of Appeal have declined to consider the mandatory minimum sentence provisions of this section. ( R .v. Morrison, 2019 SCC 15 , R. v. Dyck, 2019 MBCA 81 ) [ 5 ] The Crown urges the Court to follow the procedure set out by the Supreme Court of Canada in R. v.

Lloyd , 2016 SCC 13 , (para 18 ) where the Court indicated a provincial court judge is not obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on the sentence in the case at issue. [ 6 ] Further, the Crown submits in this case the Court need not consider the constitutional validity of the mandatory minimum sentence, as the appropriate sentence for Mr. Sinclair is well in excess of 1 year. They submit the appropriate range of sentence is 3-5 years, and specifically that a sentence of 4 years incarceration is appropriate for Mr.

Sinclair having regard to all the circumstances and relevant sentencing principles. [ 7 ] The first step then is to determine what a proportionate sentence is for Mr. Sinclair, having regard to the circumstances of the offence, the circumstances of the offender, the sentencing principles set out in the Code and the prevailing legal precedents. If the appropriate sentence is the mandatory minimum sentence or greater, the constitutionality of the provision need not be considered. [ 8 ] If however, the Court determines the appropriate sentence is less than one year the Court must go on to ask whether imposing

the mandatory minimum would result in a sentence that is grossly disproportionate to the circumstances of the offence and the offender. Circumstances of the Offence [ 9 ] The complainant in this matter, P.K. was 16 -17 years old during the time that she and Mr. Sinclair were in a relationship. Mr. Sinclair was 23 years older than her. P.K. was a vulnerable Indigenous youth in the care of Child and Family Services.

She had been evaluated as being at risk of sexual exploitation as a result of her history of trauma, substance abuse and other circumstances, and was frequently absent from her placement. [ 10 ] The two communicated with each other by text. A series of text messages from April 12, 2020, leave no doubt about the nature of their relationship, containing references to drug use and comments by Mr. Sinclair of a sexual nature. [ 11 ] Mr.

Sinclair also entered guilty pleas to breaching a prior release order with respect to P.K. by failing to reside as required and by having contact with P.K. contrary to the order on May 21, 2020. [ 12 ] Mr. Sinclair was aware of P.K.’s vulnerability and the Court found their relationship to be an exploitive one. Mr. Sinclair encouraged P.K. to come to his residence where she was often located under the influence of alcohol and other substances. In addition, the evidence showed Mr. Sinclair exerted influence and control over her. Personal Circumstances of Mr. Sinclair [ 13 ] Mr.

Sinclair is a 42 years old Indigenous man who had an unstable, impoverished upbringing. He has no real ties to his traditional culture and knows very little detail about his heritage. His mother left the family when he was very young and he has had no contact with her. He and his siblings were raised by his father, who is said to have been embarrassed about their Indigenous background. [ 14 ] During his upbringing, Mr. Sinclair experienced the substance abuse of his biological parents and both witnessed, and was subjected to violence in the home by his father and stepmother.

He also suffered sexual abuse at the hands of a family member that went undisclosed until recently. He was essentially left to fend for himself at the age of 17 when his father remarried. He did not complete high school but did obtain his GED while previously incarcerated. [ 15 ] While he has had periods of sobriety, Mr. Sinclair has struggled with addiction to alcohol and drugs throughout his life and has attended for treatment with the Addictions Foundation of Manitoba and at Willard Monson House in St. Rose.

At the time of his relationship with P.K. he was struggling with an active methamphetamine addiction. [ 16 ] Mr. Sinclair has stated a current intention to remain sober and understands that his future success requires it. He candidly acknowledges however, that without the current court order requiring abstinence, he likely would be using substances again. [ 17 ] With the exception of his brother who lives out of province, Mr. Sinclair has no family support in the community and nobody he considers as a friend. Since his release on bail, Mr.

Sinclair has been residing at Red Road Lodge and participating in their programming. [ 18 ] Red Road Lodge is a transitional supportive housing facility. He is sober and doing very well in their program. He is welcome to continue there after sentencing, where he will be provided with both training and an employment opportunity. He has the full support of the program manager Alix McLachlin who appeared with him in court and confirmed the program is prepared to support him and enforce court ordered conditions. [ 19 ] Mr. Sinclair has a criminal record dating back to 2000.

In that year he was convicted of a sexual assault and received a sentence of 2 years less a day. He also has convictions for other assaultive behavior, uttering threats, robbery and numerous breaches of court orders. [ 20 ] The probation officer who prepared the presentence report (Ex. S2) used two assessment tools to evaluate Mr. Sinclair’s level of risk to reoffend and determined him to be a very high risk to reoffend in general and at above average risk for being charged or convicted of another sexual offence. Position of the Defence [ 21 ] In support of a sentence of less than 1 year, counsel for Mr.

Sinclair points to his client’s drug use and mental health concerns at the time of the offence as factors reducing his moral culpability and submits that his efforts at rehabilitation since that time create exceptional circumstances. [ 22 ] He submits the Court should recognize, and give special consideration to the fact that Mr.

Sinclair continues to make an exceptional effort to do everything he can to improve himself and his circumstances and that incarcerating him now will not contribute to achieving rehabilitation. [ 23 ] In discussing the PSR and the assessment tools used by Probation Services to evaluate risk, counsel rightly points out that Mr. Sinclair’s Indigenous background and Gladue factors are many of the same factors tending to increase a person’s risk to re-offend.

As a result, he cautions the Court about relying too heavily on this assessment. [ 24 ] Finally, while his behavior at the time of the offence suggested a lack of insight or remorse, in hindsight, now being sober, and properly medicated, Mr. Sinclair has expressed remorse in both the presentence report and during his comments in court. He appears to understand the negative impact of his actions on P.K. [ 25 ] In light of my finding that the communications from Mr. Sinclair to P.K. were for the purpose of facilitating the offence of sexual exploitation, counsel for Mr.

Sinclair points out there is no evidence before the Court about any actual sexual contact between the

two, and notwithstanding my finding of exploitation, counsel argues the fact that P.K. was of an age where she could consent to sexual activity and was a “willing participant”, while not mitigating are nonetheless important sentencing considerations. [ 26 ] Further, he says this context (a relationship between two people) was not the kind of situation Parliament meant to address with this offence; in that Mr. Sinclair was not trolling the internet in search of vulnerable victims. Rather, this was a specific relationship he developed with a specific person. Counsel suggests this means Mr.

Sinclair presents a lower risk to re-offend than many others charged with the offence of luring. [ 27 ] The defence relies on the cases of R. v. E. R. , 2019 ABPC 292 , R. v. Saffari , 2019 ONCJ 861 , and R. v. Hood , 2016 NSPC 78 , all of which found the mandatory minimum sentence of one year to be grossly disproportionate and imposed lesser periods of incarceration. [ 28 ] In E.R. the accused, a 56 year old man with no record, entered a guilty plea to engaging in sexual conversations with a 15 year old family friend. There was no actual contact between the two and no meeting was proposed.

He received a sentence of 4 months jail and 18 months supervised probation. [ 29 ] The Saffari case dealt with an undercover operation in which a youthful first offender who had mental health “frailties” was involved in one day of text messaging an undercover officer. He did not set out to contact a person under the age of 18, but did ultimately arrange a meeting with someone he believed was. The accused would have suffered significant immigration consequences resulting from the sentence imposed.

Saffari received a 5 month sentence. [ 30 ] Hood dealt with a grade 6 teacher suffering from bi-polar disorder who exchanged sexually explicit conversations and photos with two of her former students when they were 15 and 17 years old. There was actual sexual contact on one occasion with one of the victims. A conditional sentence order was imposed. [ 31 ] Mr. Sinclair has already served 431 days of time in custody. At enhanced credit that is the equivalent of 650 days or approximately 21 ½ months. Counsel submits that a portion of Mr.

Sinclair’s sentence of time in custody should be imposed on the charge of luring with a period of supervised probation on the breach charges going forward. Position of the Crown [ 32 ] In contrast the Crown relies on the cases of R. v. Woodward , 2011 ONCA 610 , R. v. Moolla , 2021 ONSC 3702 , R. v. Gerbrandt (October 18, 2021) Winnipeg 012-98376 (MBPC), R. v. Friesen , 2020 SCC 9 , R. v. K.N.D.W. , 2020 MBCA 52 and R. v. Alcorn , 2021 MBCA 101 .

Friesen, K.N.D.W. and Alcorn are binding on the court. [ 33 ] In the Woodward case, the 42 year old accused, posing as an 18-20 year old sent hundreds of texts to a 12 year old girl promising her millions of dollars in exchange for sex. While the victim pretended to be 14, she was actually 12. Actual sexual activity occurred between them including intercourse.

In light of the 2007 increase in maximum penalty and in light of evidence that luring has become a pervasive social problem, the Ontario Court of Appeal establish a range of 3-5 years for luring offences. [ 34 ] In Friesen , while the Supreme Court took the opportunity to comment on a number of core sentencing principles: starting points and ranges, the principle of parity and the over-riding sentencing principle of proportionality, the focus of the decision was on the sentencing principles for sexual offences against children. [ 35 ] At paragraph 42 the court said, “Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code .

Our society is committed to protecting children and ensuring their rights and interests are respected.” [ 36 ] “Sexual violence against children is thus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity.” (para 51) [ 37 ] Under the heading “Disproportionate Impact on Girls and Link to Violence Against Women” the Supreme Court also said, “The intersecting inequalities of being young and female” thus makes girls and young women especially vulnerable to sexual violence.” (para 68 (v), quoting from “The ‘Statutory Rape’ Myth”) [ 38 ] Under the heading “Disproportionate Impact on Indigenous People and Other Vulnerable Groups” (para 70) “[c]hildren who belong to groups that are marginalized are at a heightened risk of sexual violence that can perpetuate the disadvantage they already face.

This is particularly true of Indigenous people, who experience childhood sexual violence at a disproportionate level.” [ 39 ] Further, “[i]n particular, the over-representation of Indigenous children and youth in the child welfare system makes them especially vulnerable to sexual violence.” [ 40 ] In Friesen , the court emphasized the high degree of moral blameworthiness of those who offend sexually against children, and said courts must take into account the harm intended or that the offender was reckless or willfully blind to. [ 41 ] The court noted that Parliament has signaled that sentences for sexual offences should increase, by increasing the maximum sentences available and by prioritizing deterrence and denunciation in sentencing for sexual offences against children. [ 42 ] An upward departure from past sentences is required given the changes in sentencing regimes and in light of the Court’s understanding of the gravity and harmfulness of sexual offences against children.

All sexual offences against children should be viewed with this lens. [ 43 ] At paras 152 and 153 the court said “a victim’s participation should not distract the court from the harm that the victim suffers as a result of sexual violence”, and “in some cases, a victim’s participation is the result of a campaign of grooming by the offender or of

a breach of an existing relationship of trust. In no case should a victim’s participation be considered a mitigating factor.” [ 44 ] The Moolla case also involved an undercover operation in which the officer responded to an ad placed by the accused seeking a sexual relationship with a girl between 16 and 19. The officer posed as a 14 year old girl. Text messages over the course of two days included explicit photos and culminated in a planned meeting to engage in sex.

The Court relied on Woodward and Friesen in imposing a 3 ½ year sentence [ 45 ] The Gerbrandt case involved an undercover operation in which an officer posed as a 14 year old girl online. The accused, who was 42 years old with no prior record engaged in sexually explicit conversations and sent sexually explicit photos of himself engaged in a sexual act. There was a prearranged meeting to which Mr. Gerbrandt attended, with personal lubricant referenced in the communications as being for use during anal intercourse. [ 46 ] Mr.

Gerbrandt had no substance abuse or mental health issues and there were no other factors reducing his moral blameworthiness. He received a sentence of 2 years less a day followed by probation. [ 47 ] Finally, in Alcorn , a case involving the child sex trade, the Manitoba Court of Appeal again reiterated many of the principles set out by the Supreme Court of Canada in Friesen .

In its introduction, the Court said, “In order to better legally protect children, it is necessary to turn a new page from the past and embark on a fresh sentencing approach which focusses on greater offender accountability through increased sentences.” [ 48 ] The Alcorn case involved a 39 year old accused who communicated with a 16 year old Indigenous girl. She agreed to have sex with him in exchange for a bottle of alcohol. She was described as a very high-risk youth, having mental health challenges and severe addiction issues, and the accused was aware of her vulnerabilities.

He was sentenced to 5 years for one sexual encounter involving intercourse that was videotaped. [ 49 ] At para 17 referring to the R. v.

Rose, 2019 MBCA 40 the court said “the sexual exploitation of young, vulnerable [children] is a problem of longstanding concern in Manitoba that requires denunciation by this Court and the community at large.” [ 50 ] At para 45 “there is no reason why a gross violation of a child’s autonomy and integrity should be treated differently merely because an offender’s conduct transgressed the norm against sexual exploitation as opposed to the norm against sexual contact in the absence of consent.” [ 51 ] In submitting a sentence of 4 years is appropriate, the Crown also points to Mr.

Sinclair’s prior record of convictions, including a conviction for sexual assault with a weapon, which they say disentitles him to leniency. [ 52 ] Further, the Crown submits the presentence report writer determined Mr.

Sinclair to be a very high risk to reoffend in general and an above average risk to reoffend sexually. [ 53 ] The Crown also points to the specific provisions of the Code , ( s. 718.01 and s. 718.04 ) which provide, where an offence involves the abuse of a person under age 18, and where and an offence involves the abuse of a person who is vulnerable because of personal circumstances, including because a person is Aboriginal and female, the Court shall give primary consideration to the objectives of deterrence and denunciation.

Both of these sections apply to the victim P.K. in this case. [ 54 ] While acknowledging that Mr. Sinclair is currently doing very well in the community, the Crown notes that in this case where deterrence and denunciation are the primary sentencing considerations, rehabilitation takes on a lesser role in determining the appropriate sentence. [ 55 ] In K.N.D.W. the Manitoba Court of Appeal said at paragraph 21, “when the principles of denunciation and deterrence have priority, the focus of the sentencing judge is more on the offence committed (the conduct) than on the offender.

While factors personal to the offender, such as rehabilitation and Gladue factors remain important, they necessarily take on a reduced role.” [ 56 ] Having considered the circumstances of the offence before the Court, Mr.

Sinclair’s personal circumstances and the very commendable rehabilitative work he has undertaken since the offence, I am nonetheless of the view that the appropriate sentence in this case, given the applicable binding case law is in excess of the mandatory minimum sentence of 1 year. [ 57 ] While I am mindful of the comments of the majority in Morrison regarding the minimum sentencing provisions of s. 172.1 being “constitutionally suspect” I am following the guidance in Lloyd . As such, there is no need to decide Mr.

Sinclair’s motion respecting the constitutional validity of the mandatory minimum sentence provision. The motion is therefore dismissed. Imposition of Sentence [ 58 ] I have considered the cases filed by counsel. In recent years, it is clear sentences for sexual offences involving children have increased in length. This acknowledges that Parliament, in successive amendments to the Criminal Code has increased the maximum sentences for these types of offences.

This also recognizes our current understanding of the gravity of the harm caused to children who are sexually victimized. [ 59 ] While sentencing ranges and starting points are guidelines, not hard and fast rules, and luring can be committed in a wide variety of ways with varying degrees of factual seriousness and impact, many of the cases filed, in particular Woodward , Friesen, K.N.D.W. and Alcorn, all of which, with the exception of Woodward , are binding on me, suggest the range relied on by the Crown of 3-5 years is appropriate for the circumstances of this offence. [ 60 ] In terms of Mr.

Sinclair’s actions, it is not the case that he was accessing the internet, trolling for underage children to offend against. While in this case there is a “live” victim as opposed to an undercover officer posing as a child, there is no evidence before me of actual sexual activity between Mr. Sinclair and P.K. (although the inference is clear from the nature of their communications) or the

specific impact of Mr. Sinclair’s actions on her well-being. [ 61 ] This does not mean the Court cannot infer impact. It is clear that sexual offences against children cause harm and have life altering consequences for victims. This is especially so for those who are vulnerable and whose strength and resilience may already be compromised by their life situation. [ 62 ] P.K. was an Indigenous girl in the care of Child and Family Services, with a host of issues making her vulnerable to exploitation. Mr.

Sinclair was aware of her vulnerabilities and took advantage of them by encouraging her to AWOL from her placement and stay with him. He provided and/or allowed her to use substances in his residence. Their relationship not only impacted her personal autonomy and dignity it heightened the danger to her, in her already risk-laden lifestyle. The fact that P.K. also chose to be with Mr. Sinclair is of no significance given her vulnerable situation. [ 63 ] Mr. Sinclair was spoken to by those in authority about his relationship with P.K. and was aware of the consequences of his actions.

He nonetheless continued to make choices prioritizing his needs over those of P.K. [ 64 ] It is clear the sentencing principles of deterrence and denunciation have priority in cases involving sexual offences against children. This has been codified in s. 718.01 of the Code .

In a case of abuse of a person under 18, primary consideration shall be given to the objectives of denunciation and deterrence. [ 65 ] In addition, s. 718.04 indicates that for an offence against a person vulnerable due to personal circumstances including if Aboriginal and female the court shall give primary consideration to deterrence and denunciation. [ 66 ] Mr. Sinclair’s personal circumstances are mitigating. He is an Indigenous man who because of the systemic impacts of colonization has had a difficult path in life, including being neglected and subjected to violence as a child.

He has no connection with his Indigenous background and was encouraged during his upbringing to essentially deny his heritage. [ 67 ] His personal circumstances at the time of his offending are a reflection of all he lacked and all he was exposed to. It is no surprise he would suffer from mental health difficulties and have issues with substance abuse. [ 68 ] This is relevant to a consideration of s. 718.2(

e) in that all available sanctions other than imprisonment, that are reasonable in the circumstances and consistent with the harm done with particular attention to the circumstances of Aboriginal offenders should be considered. [ 69 ] Mr. Sinclair’s efforts at rehabilitation must also be recognized and given due weight in coming to an appropriate sentence. He has made an excellent commitment to sobriety and to living a prosocial life that has a positive impact not only on himself but also others.

He has the support of Red Road Lodge to continue on this positive path. [ 70 ] His current healthy lifestyle has allowed him to have meaningful insight in retrospect to the effects of his decisions on P.K. and hopefully signals a permanent change in decision making for the future. [ 71 ] These aggravating and mitigating factors must be balanced in light of s. 718.1 the overarching sentencing principle of proportionality. Proportionality requires the court to consider the gravity of the circumstance of the offence and the degree of responsibility of the offender. The circumstances of the offence here are serious.

The degree of Mr. Sinclair’s responsibility, while attenuated somewhat by his personal circumstances, is still nonetheless high. [ 72 ] For the offence of luring, a sentence of 3 years or 1,095 days will be imposed. Mr. Sinclair has 431 days of time served, at enhanced credit, the equivalent of 647 days that will be subtracted from the 3 year sentence. His sentence going forward is 448 days or just under 15 months. [ 73 ] The two charges of failing to comply with a release order will be dealt with by way of a 4 month sentence to be served concurrently. [ 74 ] While I accept that re incarcerating Mr.

Sinclair will temporarily disrupt his successful rehabilitative efforts, in the circumstances rehabilitation must become secondary to deterrence and denunciation. [ 75 ] Luring is a primary mandatory designated offence, so there will be a DNA Order. There will also be a 20 year Order pursuant to the Sexual Offender Information Registry Act . [ 76 ] Mr. Sinclair will also be subject to an Order under ss. a, b, and d of s. 161 of the Code for 10 years . The wording for clauses a and b will be as set out in the Code . Pursuant to clause d, Mr.

Sinclair will be prohibited from using the internet or other digital network to access pornographic content; access any content that violates the law; communicate with any person under the age of 18 years; directly or indirectly access any social media sites, social network, chat room; or maintain a personal profile including the use of any alias on any such service; or use any electronic device that employs wiping or encryption software or use a software to automatically delete browser history, cookies or images. [ 77 ] There will be a mandatory lifetime prohibition pursuant to s. 109 of the Code . [ 78 ] The cell phone seized from Mr.

Sinclair on his arrest will be forfeited. [ 79 ] Costs and surcharge waived.

“Original signed by:” Tracey Lord, A.C. P.J.