R. v. McCall Date:, 2011 BCPC 143

Citation: R. v. McCall Date: 20110502 2011 BCPC 0143 File No: 208315-2 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RAYMOND KELLY MCCALL EXCERPTS FROM PROCEEDINGS REASONS FOR SENTENCE OF THE HONOURABLE JUDGE G. M. RIDEOUT BAN ON PUBLICATION 486.4(2) C.C.C. Restricted Access Counsel for the Crown: E. Poll Counsel for the Defendant: J. Stowe Place of Hearing: Vancouver , B.C. Date of Judgment: May 2, 2011 Introduction [ 1 ] THE COURT: The accused has been convicted in relation to a charge under s. 172.1(1) (

b) of the Criminal Code . The charge is commonly called child luring. It was alleged and accepted by this court that the accused from the 30th of April, 2009, to the 25th of June of 2009 used a computer device both at home and at work to communicate with a person who he believed was under the age of 16 years. That

section imposes a potential sentence of 10 years in prison. [ 2 ] This court also found that the intent of that contact met the prerequisites of the prohibited actions set out in s. 152 of the Criminal Code of Canada which reads in part:

Every person who, for a sexual purpose, invites, counsels or incites a person under the age of 16 years to touch, directly or indirectly,with a part of the body or with an object, the body of any person, including the body of the person who so invites, counsels or incites andthe body of the person under the age of 16 years, (

a) is guilty of an indictable offence ... Background [3] In reasons for judgment pronounced January 26th, 2001 and found at 2011 BCPC 7 , 2011 BCPC 007, the factualbackground in relation to the child luring is set out. However, for context, a general overview would be helpful. At the time of theoffence, Mr. McCall was 40 years of age and was employed as a security manager with Intercon Security at Park Place on Burrard Streetin Vancouver. [4] As a result of information received by the Vancouver Police Department, the accused became a person of interest to the child-luring unit of the vice squad.

A ruse was played out wherein Sergeant Mitchell purported to be "Julie," a person under the age of 16years and, through a Facebook contact list, sent a message to Mr. McCall to pursue the ruse. [5] In that initial contact, header information revealed the following. To Julie Feme, from Yar Miller [phonetic] (yarhound.hotmail.com) [phonetic] "You are very cute, but I don't know about the invite. Imay have done it because you were into the same things as I was. [smiley face emoticon] [6] It was the plan of the Sergeant Mitchell by inadvertently contacting the accused that there would be a response.

Indeed theexpected response then triggered a series of ongoing chats that took place between the two over an extended period of time with some ofthose chats being hours in duration. The chats quickly progressed from benign chat conversation to graphic sexual chat conversation.

That chat conversation is reviewed and analyzed in the reasons for judgment. [7] The accused testified at his trial and did not dispute the authenticity or veracity of the chats, but rather took the position that hebelieved he was dealing with a 35 to 50-year-old man and that he was playing out this person's game. [8] In commenting with respect to the communications, this court noted at paragraph 111 and 112 the following: 111. The chat logs and the sexual contents of those chat logs as initiated by Mr. McCall were both graphic and disturbing. 112. The extensive “chat” conversations between Mr.

McCall and “Julie” established that Mr. McCall was counselling or enticing“Julie” to explore sexual acts. Those actions included invitations to masturbate during graphic “chats”; counselling “Julie” that oral sexand even sexual intercourse were appropriate for a 14 year old girl; proposing the exchange of lewd photographs; the suggestion that sheget a webcam so that Mr. McCall could observe her committing various sexual acts on camera. Materials Filed on Sentence [9] The court has had the benefit of a psychological report prepared by Dr. Stangeland. I have also had the benefit of a presentencereport.

It would be fair to say that in relation to the psychological report that it would not be favourable. In that report at page 15 afterreviewing factors and criteria, Dr.

Stangeland notes: When the total picture is taken into consideration, Raymond appears to present a moderate risk of sexual recidivism and a low tomoderate risk for sexual violence. [10] In relation to counselling, the doctor was unable to provide much in the way of suggestions for counselling because, in his view,it would be difficult to fashion appropriate counselling within a sexual offenders' treatment program where there has been a refusal toadmit culpability. [11] Likewise, in his interview with Dr.

Stangeland the accused did not retreat from his position, notwithstanding the finding of thiscourt that he was communicating with a 35 to 50-year-old man who was posing as an adolescent girl. [12] The presentence report indicates that Mr. McCall came from a family background that was unremarkable and that his actions inthis case would appear to be out of character. The presentence report also indicates that while the accused denied the offence he wouldstill be open to treatment, counselling, or programming as deemed necessary by the court.

Position of the Parties [13] Defence counsel submits that a fit and just sentence in this case would be a Conditional Sentence Order (CSO). In support of thatcontention, he looks at the age of his client; the fact he has no record; there was no plan in place to meet the respondent, Julie; that thereis no history of breaches in relation to his post-offence conduct; that notwithstanding his present trials and tribulations that he has beenworking and is hoping to work out access and support for his child as he is now separated from his wife. Mr.

McCall's mother is heretoday in support and she is able to provide a residence for him. [14] Defence counsel rightly indicates that the more prohibitive the sanctions, the more akin to an actual jail sentence can be imposedpursuant to a CSO, and that a prohibitive order as contained in proposed guidelines offered to the court would render that CSO aprohibitive sentence. [15] Cases relied upon by counsel for Mr. McCall include my decision in R. v. Nichol, 2009 BCPC 124 , 2009 BCPC 0124. There was reference to the decision of the Alberta Provincial Court in R. v. MacIntyre, 2009 ABPC 177; R. v.

Torwick, 2010 ABPC 233;and the case of R. v. El Jamel, 2010 ONCA 575.

[ 16 ] The ancillary relief is not disputed by counsel for Mr. McCall. [ 17 ] Crown counsel takes the position that a CSO would be inappropriate and that a mid to high provincial range would be appropriate having regard to the aggravating circumstances including: the predatory nature of the actions of Mr. McCall; planning; the use of the Internet wherein various names were used to promote his own anonymity; the graphic nature of the chat; as well as the comments made by Dr.

Stangeland that there is at the very least a "moderate risk of recidivism" in a sexual nature. [ 18 ] Crown counsel points out that the cases in British Columbia emphasize general and specific deterrence and denunciation. In that regard, Crown counsel points to the decision of this court in R. v. Nichol , where a 20-month sentence was imposed in relation to a child- luring case. [ 19 ] Crown counsel also refers to the recent decision of Madam Justice Fisher in R. v. Aimee , 2010 BCSC 1463 , which emphasized general and specific deterrence.

In Aimee the accused faced sentence in relation to other charges which included child luring. Analysis [ 20 ]

Section 718 through s. 718.2 of the Criminal Code set out the principles of sentence. Sentencing takes into account a constellation of factors. A fit and just sentence must also be proportionate. In determining a fit and proper sentence the Court must look at the circumstances of the offender and the particular circumstances of the offence. [ 21 ] It is also noteworthy that by operation of s. 718.2 (

d) that jail is to be the last resort if other appropriate sanctions are available. Jail may be mandated where it is required to ensure that the principles contained in s. 718 through 718.2 cannot be met except with the imposition of a jail sentence. [ 22 ] As noted in R. v. Nichol at paragraph 39 , cases of child luring are very serious especially so as Parliament in 2008 increased the potential sentence from five to 10 years.

Madam Justice Fisher in Aimee provided an instructive commentary on the approach courts should take in sentencing in luring cases at paragraph 69. [69] The Internet luring offence under s. 172.1 clearly reflects what has been referred to as a “growing recognition of the new vulnerability of children created by the internet”; see R. v. Deck ; 2006 ABCA 92 ... [ 23 ] Reference is also made by Madam Justice Fisher to R. v. Folino , a decision of the Ontario Court of Appeal, in which it is proposed that a CSO would only be imposed in the rarest of cases. [ 24 ] Counsel for the accused submitted R. v.

MacIntyre , [2009] A.J. 717 , of the Alberta Provincial Court underpinned his position that a CSO would be appropriate. I note that at the time MacIntyre was pronounced the maximum potential penalty was five years in prison which would distinguish that case on that point alone. [ 25 ] However, I note in MacIntyre the accused was legally blind and had entered a guilty plea expressing a high degree of remorse both to his therapist, Dr. Neumann, and to his probation officer.

He is described as being at a low risk to reoffend. [ 26 ] It is clear upon a reading of the MacIntyre decision that the court did not ignore the majority of cases which imposed actual jail sentences. Rather, I find the analysis taken by the court in MacIntyre was designed to establish that exceptional circumstances were existent in sentencing Mr. MacIntyre. [ 27 ] As noted, the Folino decision of the Ontario Court of Appeal was considered by both this court in Nichol and by Madam Justice Fisher in Aimee .

The Court of Appeal of Ontario in Folino did grant a CSO where there were exceptional circumstances and it is clear that those exceptional circumstances would only be existent on rare occasions. [ 28 ] On the Folino analysis, counsel for the accused also cited R. v. El Jamel , 2010 ONCA 575 , for the proposition that the rarest case test referenced in Folino is not hard and fast rule. I disagree.

The majority accepted that the trial judge had found that this was not one of the "rarest of cases." Notwithstanding the position of the trial judge, the majority found as follows at paragraph 19: Here it is not suggested that the trial judge failed to consider a relevant factor. The submission is that she attached inappropriate weight to the restorative objectives of sentencing. I disagree. In my view, it is apparent that the trial judge was applying the guidance provided by this court’s decision in Folino.

Her reasons [in]adequately [sic] explain why she decided [to do] that, for this offender, a sentence outside the usual range was appropriate. In this case, there is insufficient basis to interfere with her exercise of discretion and, to do so, would confuse rather than assist the trial judge’s task with applying Folino . [Emphasis added] [ 29 ] Though not binding on this court, I find the comments of Mr. Justice Watt in dissent at paragraphs 32 and 35 persuasive.

It is those comments which are apropos to the law as I currently see it in British Columbia. [ 30 ] While there was no actual meeting arranged in this case, that does not depart from the prohibitive actions of Mr. McCall, which actions are contrary to s. 152 of the Criminal Code of Canada. The aggravating factors are significant and engage many of those factors identified by this court in Nichol at paragraph 46 , which factors were also considered by Madam Justice Fisher in R. v.

Aimee . [ 31 ] I also note that the instructive direction of Justice Fisher in Aimee where at paragraph 57 , she notes: All of these cases demonstrate that a range of sentence for an offence under s. 172.1(1) is 12 months to up to 2 years depending, of course, on the aggravating and mitigating [circumstances] .... Many of these cases involved guilty pleas for single counts. A sentence greater than 12 months may be appropriate where there is a related criminal record, a moderate risk of reoffending, and few mitigating factors, as in both Nichol and Daniels.

A sentence of less than 12 months will only be appropriate where there are particularly mitigating factors, as in Jarvis and Folino.

[ 32 ] Could you stand, please, sir. [ 33 ] With that instructive directive in mind, I am satisfied there are not the mitigating factors as set out in Nichol and Daniels and referenced by Madam Justice Fisher in the Aimee decision. There will be a sentence of 12 months in prison.

I decline to make an order that it be a community-based sentence pursuant to s. 742.1 as it is my view you do not meet that criteria. [ 34 ] In relation to probation, you will be on probation for a period of three years. [ 35 ] You shall keep the peace and be of good behaviour. [ 36 ] Forthwith upon completion of your sentence, or by 4:00 p.m. of the next business day following completion of your sentence, you shall report in person to a probation officer at 275 East Cordova Street, City of Vancouver, Province of British Columbia, thereafter, as, when, and where directed. [ 37 ] You shall provide your address to and reside where directed by your probation officer and not change that place of residence without the prior approval of your probation officer. [ 38 ] At the direction of your probation officer, you shall attend, participate in, and successfully complete any assessment, counselling, or other programs as directed by your probation officer including but not limited to sex offender treatment programs. [ 39 ] In light of the comments, gentlemen, of Dr.

Stangeland, I am not going to direct attendance at Forensic, but I will hear from counsel. [ 40 ] You shall not be found in the company of any person under the age of 16 unless in the company of a responsible adult person over the age of 25 years and as approved by your probation officer. [ 41 ] You are not to possess, use, or access any computer, BlackBerry, telephone with Internet access, or other electronic device that is capable of providing access to the Internet except of such instrument as may be approved by your probation officer for employment purposes upon release from custody. [ 42 ] The surcharge is waived. [ 43 ] Pursuant to s. 487.051, there will be provision of a DNA sample. [ 44 ] There will be an order for 20 years pursuant to s. 490.01(12) of the Code to be drafted by counsel for the Crown. [ 45 ] Other conditions, gentlemen, because a probation order is designed to be rehabilitative, not punitive? [ 46 ] MR.

POLL: No, I do not have any submissions, Your Honour, thank you. [ 47 ] MR. STOWE: I have none. [REASONS FOR SENTENCE CONCLUDED]