HER MAJESTY THE QUEEN — v. —, 2019 ONCJ 366

ONTARIO COURT OF JUSTICE CITATION : R. v. King , 2019 ONCJ 366 DATE : 2019 -05-29 COURT FILE No .: 2811-998-17-36983-00 BETWEEN: HER MAJESTY THE QUEEN — AND — SHANE FRANCIS KING Before Justice Michael Block Heard on November 13, 29, 2018, January 24 and March 27, 2019 Judgment on Charter Application & Sentence released on May 29, 2019 S. O’Neil................................................................................................. counsel for the Crown S. Yehgoyan............................................. counsel for the accused Shane Francis King BLOCK J.: [ 1 ] On November 13, 2018 Shane King entered a plea of guilty to a charge under

section 172.1 of the Criminal Code . It was alleged that between June 2, 2017 and October 11, 2017 by means of a telecommunication device, he communicated with “Cara McNally”, whom he believed to be under the age of 16, for the purpose of facilitating an offence under

section 152 of the Criminal Code . The crown elected

summary procedure. [ 2 ] The crown argues that the appropriate sentence is 12-15 months imprisonment. The mandatory minimum for this offence is six months imprisonment when the crown elects

summary conviction procedure. Counsel for Mr King has brought an application challenging the constitutionality of the mandatory minimum sentence provided for this crime. He argues that the mandatory minimum represents a grossly disproportionate sentence in the circumstances of this case and this offender and violates the defendant’s right pursuant to s.12 of the Charter “not to be subjected to any cruel and unusual treatment or punishment” and is not saved by s. 1.

He asks that I find the mandatory minimum sentence provided for this crime to be of no force or effect. [ 3 ] Mr King’s application requests that the court impose a non-custodial sentence.

In oral submissions his counsel seemed to suggest that an appropriate sentence would be at the higher end of the intermittent reformatory range. [ 4 ] For the reasons supplied below I find in favour of Mr King’s application. [ 5 ] The admitted facts are that, in June of 2017, Detective Constable Lockwood was maintaining a fictitious online identity as Cara McNally with an account name of “Cara2002” on a website by name of www.chathour.com, a general chat room which provides users with private messaging.

That account purported to show that “Cara” was a 15 year old high school student who lives in Oshawa. [ 6 ] On June 2, 2017 “Cara” received a private message from “Candygurl112345”. That user was Mr King. “Candygurl” suggested that “Cara” speak to a 41 year old man with whom she recently had sex. This led to a prolonged series of messages between “Cara” and “AdamBomcan” on another message application called KIK. “AdamBomcan” was Mr King. [ 7 ] Messages between “Cara” and AdamBomcan” continued at various points during the summer and autumn of 2017.

The fictional adolescent girl was instructed in masturbation by Mr King and asked to meet for sexual intercourse several times. These messages were very frequent and explicit. While non-sexual topics were discussed, there can be no misunderstanding that the purpose of the exchanges was arrange meetings for unlawful sexual contact.

[8] On October 9, 2017 “Cara” divulged to Mr King that she was only 14. Nevertheless, Mr King agreed to meet “Cara” inOshawa on October 11, 2017. On that day Mr King drove from Kingston, where he lived, to Oshawa for the rendezvous. On arrival inthe Oshawa centre parking lot he was arrested by the Durham Regional Police. At that time a search of his vehicle revealed a flanneletteblanket, a purple vibrator, some baby wipes and the pumpkin spice latte “Cara” requested he bring with him.

On transport to the policestation after arrest, Mr King told police that he had been about to leave the rendezvous location because “he knew it wasn’t right”. [9] On March 27, 2019 an evidentiary hearing was held in respect of some of the facts on arrest. The attention of the court wasdrawn to a photo of the defendant’s vehicle that showed it somewhat askew in its parking spot. Counsel submitted that this evidencesuggested that the defendant was about to flee the anticipated rendezvous with the fictional adolescent at the time of his arrest.

Thatrepresentation was made by Mr King to the author of the pre-sentence report, but was not in the evidence before me at the sentencehearing. [10] Defence counsel called Mr King’s spouse, Roberta King. I found her to be direct, responsive and candid. She was verydismayed by her husband’s conduct. She appeared to support her husband as long as he was committed to his rehabilitation. She told thecourt that the baby wipes were in the vehicle to clean up her infant grandson. It was clear from her testimony that the vibrator belongedto her.

It was also clear that there was no legitimate reason for its presence in the car at the time of the arrest. Likewise the clean andfluffy flannelette blanket would not have been present to safeguard the backseat from recycling detritus, a reason suggested to the witnessby counsel. [11] I am certainly willing to accept that Mr King is a tormented man. He may well have been tormented by his own plan tocultivate and meet “Cara”. However, his untested out-of-court statements cannot ground the conclusion that he resiled from his intendedrendezvous prior to his arrest.

The evidence is that the defendant drove over 200 kilometres with tools of seduction at hand and pumpkinspice latte at the ready. The position of Mr King’s vehicle and the potentially innocuous explanation for the baby wipes do not suggest tome that he had abandoned his criminal mission at the last moment. I do agree that Mr King’s obvious remorse was demonstrated duringthe earliest moments of his contact with the police after his arrest. [12] Mr King’s childhood and adolescence were deformed by vicious physical and emotional abuse by his mother.

An un-contradicted episode, reported in a post-offence psychiatric report prepared by Dr Jan Looman, recounts that his mother broke his fingerswith a spoon because he tied his shoes improperly. His mother was cold to him. She never told him she loved him. One relative’saccount was ”he was her punching bag”. Mr King’s father was an alcoholic and both physically and emotionally absent. This was a trulybrutal, nasty and loveless environment for any child. [13] The above un-challenged narrative of grotesque childhood suffering is not complete.

Mr King was sexually abused between theages of eight and twelve by a family friend. This man was a well-known and prolific sexual predator. He was ultimately prosecuted fornumerous similar offences against other children. Mr King did not disclose his abuse until this man had already been sentenced to asubstantial penitentiary term for similar crimes.

Mr King never sought treatment for this abuse until being charged with the indexoffence. [14] In spite of this background, Mr King made it to age 52 without an apparent history of criminal involvement or substance abuse.He has a record of some academic and career achievement in the field of communications and intellectual technology. He has beenconsistently employed until the instant offence, latterly as a bus driver. [15] Mr King sought professional assistance in October 2017. He has pursued counselling in a number of different venues, includingcounselling for victims of child sexual abuse.

He attends counselling sessions approximately every two weeks in respect of the issues ofself-worth, depression, insomnia, nightmares, flashbacks, feelings of unreality or out-of-body or existing in a fantasy world stemmingfrom his history of abuse. He has disclosed the offence before this court to his counsellors. He took responsibility for the offence in hiscounselling sessions. He told his therapist that it is his responsibility to comprehend how his past abuse is related to his criminalbehaviour. [16] The court has benefited from the unusually comprehensive and thorough presentence report, referred to above.

The report dealsat length with Mr King’s burden of abuse and neglect. It also confirms that Mr King, who is a first offender, has been employed andproductive throughout his adult life. [17] As previously indicated the court has the benefit of a psychiatric report dated, May 7, 2018, prepared by Dr Jan Looman for thesentence hearing.

The report is exhaustive and displays considerable caution throughout, particularly in respect of Mr King’s candour asa test subject. [18] The report concludes, at page 8, that Mr King has a low risk of re-offending: “ Mr King is facing sentencing for his first ever criminal conviction. He is a 51 year old male with significant mental health concerns. Tothis point in his life he has been a pro-social person who has maintained employment, does not use substances, and is in a stablerelationship. From a public safety perspective there is no value in Mr King serving a sentence of incarceration.

He presents minimal riskto the community and he is amenable to supervision. He is also willing to participate in sexual offender treatment. A period of probationduring which he participates in sexual offender treatment would be appropriate from this evaluator’s perspective.” [19] Justice A. Karakastanis, in her concurring judgment in Morrison, 2019 SCC 15, sets out the procedure for determining whethera provision of the criminal code violates s.12 of the Canadian Charter of Rights and Freedoms. [164]

Section 12 of the Charter states that “everyone has the right not to be subjected to any cruel and unusual treatment orpunishment.” In order to qualify as “cruel and unusual” punishment, a mandatory minimum sentence must be grossly disproportionate(R. v. Lloyd, 2016 SCC 13 , [2016] 1 S.C.R. 130, at paras. 22-23; R. v. Smith (Edward Dewey), (SCC), [1987] 1S.C.R. 1045, at pp. 1072-73). [165] The standard of gross disproportionality is a high bar. A grossly disproportionate sentence must be more than merely excessive. It

must be so excessive as to outrage our society’s standards of decency and must be disproportionate to the extent that Canadians wouldfind it abhorrent or intolerable (Smith, at p. 1072; R. v. Morrisey, 2000 SCC 39 , [2000] 2 S.C.R. 90, at para. 26; R. v. Ferguson,2008 SCC 6 , [2008] 1 S.C.R. 96, at para. 14). [166] To determine whether a mandatory minimum sentence imposes a grossly disproportionate punishment, the court engages in acomparative exercise.

This involves comparing the mandatory minimum sentence for the relevant offence to the fit and proportionatesentence that would otherwise be mandated by the sentencing principles found in the Criminal Code.

Ultimately, if the mandatoryminimum forces courts to impose a sentence that is grossly disproportionate to the otherwise fit and proportionate sentence, then themandatory minimum is inconsistent with s. 12 (Lloyd, at para. 23). [20] Justice Karakatsanis concluded her analysis by remarking, at paragraph 188, that “it is difficult to imagine how a mandatoryminimum sentence which is found to be grossly disproportionate . . . . could represent a justifiable infringement of s.1 of the Charter”. [21] In addition to her general guidance in the determination of the constitutionality of mandatory minimum sentences, in Morrison,supra, Justice Karakatsanis referred to specific sentencing considerations that prompt the conclusion that the mandatory minimumsentence would result in a grossly disproportionate sentence for this offender, and other offenders in reasonably foreseeable cases. [182] As outlined above, s. 172.1(1) captures a wide variety of communications. . . . .

Finally, the communication can actually be withan underage child or, as in this case, with a police officer posing as one (see R. v. Rafiq, 2015 ONCA 768 , 342 O.A.C. 193, atparas. 47-49).

These factors may impact the level of harm caused by the offence, thereby informing what constitutes a fit andproportionate sentence (see s. 718 of the Criminal Code). [183] The personal circumstances of the offender and the relationship between the offender and the victim may also vary significantly.Past cases demonstrate that child luring offences are sometimes committed by individuals who . . . . were themselves abused in the past(see e.g. R. v. Hood, 2018 NSCA 18 , 409 C.R.R. (2d) 70; R. v. S. (S.), 2014 ONCJ 184 , 307 C.R.R. (2d) 147; R. v.Crant, 2017 ONCJ 192 ).

These factors may diminish the moral blameworthiness associated with the offence (see s. 718.1 ofthe Criminal Code). [184] Given the variety of circumstances captured by the offence, it is not surprising that the s. 172.1(1) jurisprudence demonstratesthat the fit and proportionate sentence can be significantly less than the one-year mandatory minimum term of imprisonment required bythe Criminal Code.

Courts applying the Criminal Code’s sentencing principles have determined that, in certain child luring cases, a fitand proportionate sanction included lesser penalties: a short period of institutional incarceration of 90 days or less (Alicandro, at paras. 2and 49; R. v. Read, 2008 ONCJ 732 at para. 29; see also R. v. Dehesh, [2010] O.J. No. 2817 (S.C.J.), at para. 9; S. (S.), at para.91); a conditional sentence (R. v. El-Jamel, 2010 ONCA 575 , 261 C.C.C. (3d) 293, at paras. 2 and 20; R. v. Folino, (ON CA), 2005 ONCA 258, 77 O.R. (3d) 641, at para. 33; R. v.

B. and S., 2014 BCPC 94, at para. 42 ; R. v.Danielson, 2013 ABPC 26, at para. 89 ); or even a conditional discharge (R. v. Pelletier, 2013 QCCQ 10486 at para. 73). Although some of these cases (Dehesh; S. (S.); Danielson) proceeded by way of

summary conviction, they demonstrate thatthe offence can warrant such sentences. And, as the Nova Scotia Court of Appeal recently noted, in certain reasonably foreseeable cases,a suspended sentence would be appropriate (Hood, at para. 154). [22] The aggravating circumstances in this case are obvious. Mr King’s planned assignation with the fictional “Cara” was theproduct of intermittent communication over the course of several months. He travelled 200 kilometres with the accoutrements ofseduction. [23] The mitigating circumstances are profound.

Mr King is a mature first offender who has built a reasonably successful life despitea childhood history of intense, prolonged, physical, psychological and sexual abuse. He sought and has continued extensive counsellingto deal with the long-lived sequelae of that trauma and to understand the connection between that history and this crime. He has pleadguilty. He has exhibited genuine remorse. He has been assessed and found to be at low risk of re-offence. He harmed no living being.

Hehas strong family support. [24] The mitigating factors require a fit and proportionate sentence that reflects the lesser harm that was inflicted by a haunted andless blameworthy offender. A sentence of six months in jail would be grossly disproportionate for the circumstances of this offender orany hypothetical offender with the mitigating factors that obtain here. Pursuant to the formulation suggested to provincial court judgesby Chief Justice McLachlan in R. v. Lloyd, 2016 SCC 13 I find that the mandatory minimum sentence required by

section 172.1(2)(

b) ofthe Criminal Code violates

section 12 of the Charter. I refuse to apply in this case. [25] The court must not only consider the need for denunciation and deterrence but, in all of the circumstances of this case and thisoffender, encourage Mr King’s rehabilitation by placing him under supervision for a prolonged period and by allowing him to re-enterthe workforce in the shortest possible time. It is clear from the background and psychiatric material presented that work is very importantfor this man, both because of his fragile sense of self-worth and his acute sense of isolation.

In my view the goals of sentencing can beaccomplished by one year conditional sentence followed by probation for three years. I will shortly discuss with counsel the terms of thissentence and probation, as well as the necessary ancillary orders. [26] In the normal course a conditional sentence would be unavailable to Mr King because of the operation of s. 742.1 (

b) of theCriminal Code. With his customary fairness, Mr O’Neill has conceded that the statutory bar to a conditional sentence cannot stand wherethe mandatory minimum sentence that is the basis for it is found to offend Charter

section 12. This is the implicit reasoning in R. v.Koenig, 2019 BCPC 83, released April 18, 2019. In this case involving cognate charges the sentencing judge found that the applicablemandatory minimum sentences totaling 120 days violated s.12 of the Charter. The court then imposed a conditional sentence of sixmonths without further analysis of s. 742.1. [27] This is also the result in R. v. Drummond, 2018 ONCJ 336. In this s. 151 sexual interference case Justice Pringle found that the90 mandatory minimum violated s. 12 of the Charter.

The court imposed a 45 day conditional sentence on top of 5 days of time served.There was no specific discussion of s.742.1(b). The implied and correct view of the court was clearly that this impediment no longerexisted. Justice A. Schreck upheld this s.12 ruling in R. v. Drummond, [2019] O.J. 731, without discussion of 742.1(b). The implicit

finding of the above courts in relation to s. 742.1 is also the determination of this court. Released: May 29, 2019 Signed: Justice M. Block