R. v. Crant, 2017 ONCJ 192

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct al-leged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (

i) if it occurred on or after that day; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 OFFENCE —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. ONTARIO COURT OF JUSTICE CITATION: R. v. Crant, 2017 ONCJ 192 DATE: 2017 03 16 BETWEEN: HER MAJESTY THE QUEEN — AND — NICODEMUS GERARD CRANT Before Justice S.R. Shamai Heard on February 23, 2016.

Reasons for Sentence released on March 16, 2017. Mareike Newhouse............................................................................. counsel for the Crown Greg Roberts.............................................. counsel for the Offender, Nicodemus Crant S.R. SHAMAI, J.: A. Introduction [ 1 ] I found Nicodemus Crant guilty on two counts of criminal conduct, on February 23, 2016. After a protracted trial, I determined that the evidence proved that he was in possession of child pornography and that he had committed the offence of “luring”, under

Section 172.1 of the Criminal Code . These offences took place between August 1 and September 9, 2011. The information was sworn in November 2011. To the extent that the elapsed time raises a question, why did it take so long from charge to sentencing date, I answered that to the best of my ability when Mr. Crant through counsel filed an application for relief under

Section 11b last summer, on the eve of sentencing. That issue was argued on December 9, 2016, and my ruling released on January 26, 2017. Counsel asked for an adjournment to prepare submissions on sentence, though I had been awaiting the sentencing hearing for many months at that point. I heard submissions on sentence on March 2, 2017, and adjourned to March 16 to consider the result and prepare these reasons. [ 2 ] The details of the events underlying the convictions are contained in the February 23, 2016 decision. I will highlight a few of the salient points. Mr.

Crant, born and raised on the C[…] reserve in Newfoundland, had returned from Toronto to visit his family in July 2011. While there, he had occasion to greet the complainant, whose identity is the subject of a publication ban. Mr. Crant, 46 years old at the time, saw his 13 year old great nephew with some other young people near the latter’s home, and had a brief conversation with them. Subsequently, Mr. Crant entered into a series of telecommunication based exchanges with PND, the complainant.

Believing that PND was “gay”, as he is himself, and that he was being bullied in school for that reason, as Crant had experienced in that community while he was growing up, the communications quickly took on a sexual theme. With a photo and a brief video of himself sent to the child via MSN Messenger and Hotmail, Mr. Crant showed himself masturbating by video and naked in a still photo. He urged the child send a picture of his penis, which he did.

I emphasize that the only item fitting the definition of child pornography was one poor quality photo of the child exposing himself – a selfie, if you will- which was sent via his cell phone to Crant. No other images in the nature of child pornography were found on any of the electronic devices owned by Crant. The exposure of Mr. Crant’s genitals and of Mr. Crant masturbating was effected by images sent as a MSN attachment, and via Hotmail. [ 3 ] Sending the photo and the video amount to “luring a child” under

Section 172.1 (b): (count 5 on info). The subsection in question reads as follows: 172.1

(1) Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1(2), communicates with … (

b) a person who is, or who the accused believes is, under the age of sixteen years, for the purpose of facilitating the commission of an offence under …Section 173(2) with respect to that person; [ 4 ] The conduct on which Mr. Crant is guilty is incorporated by reference to Section 173(2): 173

(2) Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years (

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days. [ 5 ] Mr. Crant has denied his responsibility for criminal conduct throughout trial and sentencing proceedings. However, the lengthy statement which he provided to Detective Marshall of the Toronto Police Service on November 17, 2011, shows a clear acknowledgment of his conduct and an understanding that it was wrong. In particular, I note of that statement that Mr.

Crant at no stage made any assertion as he did at trial, that he believed the individual he was communicating with to be of “legal age”: capable of consenting to sex acts. He did emphasize that he never intended to follow through on any sex acts with a child, that he had never been interested in men under thirty (interestingly, the age when he “came out” and acknowledged his sexual identity). Although Mr. Crant attempted to assert a belief that the complainant was in his late teens, when he testified at trial, I rejected the veracity of that claim, given all of the evidence.

I convicted him on two of the six counts alleged, dismissing or quashing the other counts for reasons explained in my judgment of February 23, 2016. [ 6 ] I will review further aspects of Mr. Crant’s personal history in due course, on issues of sentencing. I wish only to set the context of the offence at this stage.

B. Crown position on sentencing [7] In 2011, the minimum penalty for the offence of possession of child pornography was 14 days jail, where the Crown hasproceeded by

summary conviction as here:

Section 163.1 (4) (

b) of the Criminal Code. On the luring offence, under

Section 172.1, therewas no minimum penalty at the time.

Section 172.1 (2) (

b) provided a maximum term of eighteen months imprisonment where theoffence is punishable on

summary conviction, as here. Crown seeks a penalty of 18 months to two years on these offences. [8] Crown has relied on judicial precedent establishing the appropriate range, from the same time period as this incident. Plainly,Parliament has seen fit since 2011 to increase the minimum penalty on the child pornography possession charge, and to impose aminimum for luring offences. I am of course limited to the law setting out sentence as it stood at the time the acts were committed. [9] The fundamental purposes of sentencing are set out in

Section 718 of the Criminal Code: 718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect forthe law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the followingobjectives: (

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [10] The objectives of denunciation and deterrence are to be given primary consideration where an offence involved the abuse of aperson under the age of eighteen years:

Section 718.01.

Section 718.2(a) (ii.1) provides that “evidence that the offender, in committingthe offence, abused a person under the age of eighteen years” must be taken into consideration as an aggravating circumstance. [11] The principle of restraint is expressed in two subsections of

Section 718.2. Subsection (

d) requires that an offender should notbe deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. In Subsection 718.2(

e) the Court is directedthat “all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, withparticular attention to the circumstances of aboriginal offenders”. [12] Finally, in assessing the key statutory sections guiding this decision, I note that

Section 742.1, the conditional sentencingoption, applies to the luring offence as it then stood, as it was punishable by a maximum term of imprisonment of eighteen months. Itwas not otherwise removed from consideration for conditional sentence. [13] The victim of this offence was well under 18 years of age at the time of the offence. However, the abuse was virtual and limitedin time to one series of exchanges on Facebook and a Hotmail photo transmission.

This distinguishes the facts here from cases applyingSection 718.2(a) (ii.1) where the luring offence led to actual sexual assault took place, or where exchanges over protracted time amountto the “grooming” activity described in the jurisprudence. This process is described in detail by the decisions referred to by JusticeMoldaver as he then was, for the Court of Appeal of Ontario, in the case of R. v. Woodward 2011 ONCA 610 , [2011] O.J. No.4216.

At paragraphs 42, 43, the comments of Fish J. for the Supreme Court of Canada are cited, in the Legare case (2009), 2009 SCC56 , 249 C.C.C. (3d) 129: “But those who use their computers to lure children for sexual purposes often groom them online by first gaining their trust throughconversations about their home life, their personal interests or other innocuous topics” The Court in Woodward concludes that, as set out in the 2002 decision of that same Court in R. v.

D.D. (2002) (ONCA), 163 C.C.C. (3d) 471, “the sentencing objectives of denunciation, general and specific deterrence and the need to separate offendersfrom society” take precedence over the other recognized objectives of sentencing”. (para 39, Woodward) Thus, the same principles applying to repeated actual sexual violations extend also to the luring offence, independent of physical contact.The exploitation of children is the evil intended to be denounced and deterred by sentencing of these offenders. [14] Similarly it is noteworthy that the child pornography possession relates to one photo of the child exposing his penis.Sexualizing of the child and inducing him to portray himself in that context to a stranger, albeit one who claimed a link to the child’scommunity, is criminal conduct.

It is less aggravated than many of the unfortunate instances of child pornography crimes, wheremultiple images are found in possession, and where those images often contain violent depravity. [15] In Woodward, the Court expressed this view of the range of sentence for luring: (para 58) “Even if Jarvis did purport to set a range of 12 to 24 months for the offence of luring that range needs to be revised given the 2007amendment in which Parliament doubled the maximum punishment from 5 years to 10 years.

Moreover, if it’s shown through theintroduction of properly-tendered evidence that the offence of luring has become a pervasive social problem, I believe that much stiffersentences, in the range of three to five years, might well be warranted to deter, denounce and separate from society adult predators who

would commit this insidious crime.” [16] I note that in both Jarvis (2006) (ON CA), 211 C.C.C.(3d) 20 and Woodward, the extended online conductamounting to luring resulted in face to face meeting for sexual purpose, and actual sexual assault.

That is far from the nature of this case.Indeed, the nature of the luring offence here is predicated as it is on the indecent act subsection, 173(2): exposure of genitals for asexual purpose to a person under the age of 16 years. [17] However, the clear direction of the Court of Appeal on sentencing adult sexual predators who have exploited innocent childrenis the following: “The focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-alteringconsequences that can and often do flow from it.

While the effects of a conviction on the offender and the offender’s prospects forrehabilitation will always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predatorsfrom society for society’s well-being and the well-being of our children must take precedence.” (para 76, Woodward). [18] Crown also urges the observations of our current Chief Justice in Ontario, in the case of Rafiq 2015 ONCA 768 ,[2015] O.J. No. 5878.

As to the suitability of a conditional sentence, the Court observes the aggravating features of the case of Mr.Rafiq: “This case involved a real victim, someone the respondent knew to be a naïve 12 year old girl. He induced her to make and transmitpornographic pictures, insert items in her vagina, masturbate and participate in sexually explicit chats – al for his sexual gratification. Hedid this repeatedly, over a span of six months.

In my view, his conduct was far more harmful than arranging a sexual encounter with anadult police officer believing she was a child.” Defence position on sentence [19] Defence refers me to the decision of our Court of Appeal in 2009, in the case of Alicandro 2009 ONCA 133. In that case, thesentence of 90 days on a luring offence was upheld, rejecting the position that a conditional sentence should have been imposed.

In thatcase, a police officer posing as a 13 year old girl interacted online with the offender, who masturbated to ejaculation online, and sentmessages to the supposed young girl, inviting her to engage in various sex acts. The Court concluded that there was no basis to interferewith the short custodial sentence, which was appropriate in the circumstances. [20] That decision is of interest as well, as, in examining issues raised on the appeal against conviction, the Court describes theluring offence under

Section 172.1 as a “prophylactic” offence, similar to other inchoate crimes of conspiracy, attempt and counseling: “It is the intention to facilitate the commission of one or more of the designated offences that makes the accused otherwise lawfulconduct sufficiently harmful and potentially dangerous to warrant the criminal sanction.” (para 21) [21] Defence asks me to consider that Mr.

Crant is in significant jeopardy in jail, as he is, in the defence submission, facing the“quadruple threat” of being gay, aboriginal, a former corrections officer (in fact he was a probation officer many years ago), andconvicted of sex offences relating to children. No evidence was called to support this position. [22] Defence asked that Mr. Crant be permitted to serve a maximum intermittent sentence, in order to minimize the jeopardy ofphysical harm which he might face in jail. C. Evidence relating to the Offender [23] In February 2016, on entering the convictions in this matter, I ordered a presentence report.

On April 8, following thesuggestion made by Crown at the February hearing, Defence ordered a Gladue Report. In due course, both were prepared and filed. Inoted that the presentence report contained information suggesting that the Offender was protesting his innocence to the presentencereport writer. While such material is clearly outside the ambit of a presentence report (section 721, Criminal Code) and in factinadmissible (see R. v. Essaghaier and Jaser 2015 ONSC 5855 , [2015] O.J.

No. 4922, per Code J; para 51), I recognize that“the offender’s age, maturity, character, behavior, attitude and willingness to make amends” is the first designated information to becontained in the report. To a certain extent, the offender’s comments about his “innocence” have been significant to me in assessing a fitsentence. [24] The Gladue Report has been most instructive, prepared with considerable sensitivity to the particular circumstances of thisAboriginal offender by Ashley Quinn of Aboriginal Legal Services.

The report assists me in understanding the community where Mr.Crant grew up, and where PND resides. Numerous interviews with Mr. Crant were conducted by Ms. Quinn. As well, she conductedtelephone interviews with Mr. Crant’s good friend and roommate, his current partner, his former psychiatrist, one of his sisters, threeindividuals involved with Mr. Crant’s First Nation, and finally, Mr. Crant’s childhood best friend. [25] The report provides considerable information about the Miawpukek [C[…]] First Nation. The Director of the Justicedepartment of the Miawpukek First Nation described the community and Mr.

Crant`s heritage in it as follows on (p.3): “The Crant family is a long-term family within our community; they go back as long as Aboriginal families go back as far as use andoccupancy of the land. Nico’s grandfather, Nicodemus Crant, was adopted and raised by a Mi’kmaw family in C[…]. Nico’s grandfatherwould have been registered as Aboriginal but in 1986 when C[…] became recognized as a Reserve, Nico’s father, William, could have

been a member of the Band through our custom adoption process but William refused, and as such the children never got registered. If you were not on the original funding list, it was difficult to go back retroactively and get on it. Nico’s father chose not to be part of the list. The short of it is they are not Band Members but their Aboriginal identity is probably valid. He grew up in an Aboriginal community, with the same culture and same traditions as everyone else in our community. Our community is mainly fitted on the land, including hunting big game, moose and caribou; berry picking; and fishing.

In the 1600s, our community converted to Roman Catholicism, but it has unique Aboriginal aspects to it that are not found in mainstream Catholicism. We have St. Anne’s Day celebrations every summer. It is more the Indian Act governing Band Membership and his father might not have known the significance of being on that founding list. I was on the negotiation team when Qualiput First Nation was developing their membership criteria for their founding membership list and people like Nico are registered through their custom adoption process. I grew up with Nico in C[…] and we went to the same school.

The Indian Act creates different classes of Aboriginal Peoples and have marginalized many families like the Crant family, who were denied access to specific services, including education and employment, provided to community members who are registered with the Band.” [ 26 ] Mr. Crant acknowledges his upbringing in a First Nations environment. He states that he went to “Native elementary and high school. I was surrounded by Native culture and participated in the culture.” There is however no suggestion that Mr. Crant is currently connected with “Native culture” in his life in Toronto. [ 27 ] Mr.

Crant describes circumstances of sexual abuse which started when he was in Grade Three. No prosecution of the men involved has occurred, and so, I refer to these circumstances knowing they have not been tested in Court. However, the consistency and detail of this sad story is such that I rely on it, in understanding Mr. Crant for the purposes of sentencing. [ 28 ] The abuse is tied to Mr. Crant’s struggles in school, which he details to Ms. Quinn, as she sets it out in the report. In fact, Mr. Crant details numerous circumstances which accumulated through the abuse, and bullying he experienced as a child.

His father used physical discipline on his son. He was assaulted, physically and sexually, demeaned and insulted by adults and by his peers. His one friend, who remained a friend through adulthood, and was interviewed for the report, was targeted as “girly” when they were in Grade 7. Mr. Crant describes being attacked in the classroom. He describes the mounting anxiety he developed in school, where he had been held back, and was thus older than his classmates. He did play basketball in Grades 7 and 8 and excelled, according to him.

He realized that as a young teen that he had the academic ability to excel, if he could block out the surrounding detractions. By Grade 9, he had some support from a teacher, which permitted him to excel academically and gain entry to university. [ 29 ] Meanwhile, in his teen years, Mr. Crant gained an awareness of his sexual orientation as gay. Sadly, this was accompanied by a new round of violence against him, verbal and physical, from his peers at school. [ 30 ] Mr. Crant describes leaving the reserve to attend Memorial University, in St.

John’s, then graduating in social work from Canada (sic) College in North Bay, Ontario. He described his work history from that point, and the hard work which resulted in his occupation as a probation officer in Newfoundland from 1994 to 2000, then working for Rogers in Toronto, ultimately as a business analyst until he lost his job after his arrest on the charges before the court. Police publicized his image and name, seeking other possible complainants. Since the time of his arrest, he has worked in a hotel in Toronto, supervising cleaning staff.

Without repeating the name in these reasons for sentence, the hotel is far from a first class hotel, with strip bar and a seedy reputation. However, Mr. Crant said as well that “My job is my sanity. It helps with my anxiety and depression…. It pays the bills… there is a lot of shame I have attached to that job too because it is above a strip club… I don’t tell my friends that I work there because I am embarrassed. ( p. 18, Gladue Report) [ 31 ] The detail of Mr. Crant’s years sets a context for understanding the impugned criminal conduct.

In his lengthy statement to Detective Marshall and in his testimony to the Court, Mr. Crant stated that he wanted to save the complainant, whom he believed was like him, bullied for being gay, from the same fate he experienced. A reference on PND’s Facebook page was the foundation for his belief. He wanted to normalize the experience of coming of age as a gay youth in that community. Mr. Crant also expressed the view that the same forces, which made his childhood and adolescent years a nightmare, were at work behind the current prosecution.

He did recognize in his statement to Detective Marshall that he should not have said some of the things he said to the child. It is noteworthy, especially in the light of Mr. Crant’s later retractions, that he only acknowledged his knowledge and responsibility as the officer confronted him with evidence, collected through the investigation. Nonetheless, there was no suggestion at any stage of the trial that the statement was anything but voluntary. Its weight was not impugned by Defence for want of veracity. [ 32 ] The suggestion has been raised through the proceedings that Mr.

Crant’s investigation and prosecution was merely a recent manifestation of the discrimination and bullying he experienced for being gay, when he was younger. Questions concerning PND’s mother’s knowledge of Mr. Crant from earlier years were posed to her in cross-examination. The answers did not yield any basis for believing that he was the target of a witch-hunt of sorts. I can’t say that he was the object of some ill-will, by the alleged concoction of allegations, as defence has suggested. The evidence, most particularly the photographic evidence, the Facebook messages and Mr.

Crant’s statement to police, made his actions abundantly clear through the course of the trial. However, the extent to which Mr. Crant believed, rightly or wrongly, in that he could help this young person avoid the terrible fate he encountered as a young gay male, is a factor that I consider. Clearly, as he recognized himself in his statement to Det. Marshall, he went too far. What influenced his position since making the statement to assert “innocence”, despite the evidence and his own testimony at trial, are matters about which I can only speculate. [ 33 ] Currently, Mr.

Crant has a partner and a good friend in Toronto, who sustain him emotionally. He has work, which is far from his occupation at time of arrest as a business analyst in a major Canadian corporation. While in some ways his current position embarrasses him, it does provide some stability. He has attended in the recent past upon a psychiatrist, who among other issues dealt with his anxiety, depression and suicidal tendency, but those issues appear to have diminished of late. The search of Mr.

Crant’s computers and handheld devices revealed no other pornographic images of children. [ 34 ] It is clear to me that the process of this prosecution and its prolonged course through the court has been a significant emotional burden to Mr. Crant. His physical health has suffered, in large measure due to the emotional strain placed on him by the trial. No doubt, if there was ever any question for his about engaging in sexual activity with children, or collecting pornographic images, or engaging

again in communication online with a child about sex related topics, it has been settled by this process. I believe he would never do this again. There is no evidence that this was other than an isolated, situation specific incident, inspired by the similarity which he perceived between PND’s situation as a young person, whom he believed to be gaining self-awareness as a gay person in the same community he had lived in, and who, he believed, might be spared the victimization he suffered himself, once identified as gay.

Sadly, he went far beyond acting as a supportive adult, and he acknowledged that at the outset of the investigation, during the police interview of him at the time [ 35 ] This is a situation where, although a guilty plea might have attracted a measure of mitigation of sentence, certainly the fact of a not guilty plea does not amount to a factor aggravating sentence. The conduct of the trial itself has been the subject of my comment in other aspects of the proceedings, and I will not re-iterate them here.

It is curious that after a full, albeit reluctant confession to the investigating officer, never contested as to its voluntariness, Mr. Crant’s position seemed to shift by the time of sentencing, with his proclamations of innocence in the face of my findings. Suffice it to say that for the purpose of sentencing, I cannot consider the manner in which the trial was conducted to be an aggravating factor on sentence. [ 36 ] The victim impact statement was written by the mother of the complainant, who, she stated, sat beside her as she wrote the statement. The statement was dated April 26, 2016.

PND would have been 18 years old or thereabouts at that time. She indicated that as a result of his ADHD and a change of medication due to the negative side effects of that medication, he struggles “to get his information on paper”. She stated that he has been seeing the guidance counselor at school throughout the time since the events underlying the convictions. PND’s mother described his misconduct as a young teen, getting in trouble with the law, abusing drugs and alcohol.

A healing circle and community services in their community assisted him with his brush with the law when he punched out a window at the school. The lengthy course of events surrounding PND’s testimony apparently and understandably distracted him from his studies: he had to travel to Toronto to testify and then on three separate occasions, was required to travel to different communities in Newfoundland, involving several hours driving through difficult conditions, to complete his testimony via remote link. The period of time was April 2015 to November 2016, during which PND had to attend for his testimony.

His mother expresses hope that with all the help her son is getting, he will “be on the road to recovery as soon as possible”. She asserts that “what Mr. Crant has put my child through after all these years has been pure pain making him feel like he was the one in the wrong.” [ 37 ] It was evident to me, when the young person testified, that he had troubles which predated his encounter with Mr. Crant: his migraine and attention problems made it impossible for him to give his evidence during the time available for it in Toronto.

In fairness, the manner in which the trial developed made it unlikely that his testimony would have been completed during the time in Toronto in any case. However, the issues his mother describes in the statement were apparent while he testified in Toronto, and as well, in the manner he testified from the remote locations as well. It is hard to know to what extent the impact his mother describes is attributable to the sexualized online contact with Mr. Crant, and to what extent it was the function of the trial process.

Psychological impact is hard to assess, and certainly I do not have the expertise to isolate the factors affecting the young man. It is not like a broken arm or a stolen bicycle. I do not doubt the deleterious impact which the process has had on the young man. However, I do not have the impression from all the evidence before me that PND has been scarred by the sending and receiving of images, which are the criminal acts grounding the convictions in this case.

Nor, to the extent that I made findings of some of the surrounding circumstances, does the evidence prove that they have affected his ability to trust, or prevented the young man from entering intimate relationships himself, or impacted his self- image, issues frequently associated with some sex offences against children. It is clear however, that his participation in the protracted proceedings had a negative impact of him. D.

A Principled Approach to Giving Effect to Sentencing Objectives [ 38 ] I have identified the objectives which animate the imposition of sentence in a case involving sex offences against a child. Deterrence and denunciation are the primary ones. These are codified in

Section 718.01 and

Section 718 (a) (ii.1) of the Criminal Code , and given specific weight by the jurisprudence examined earlier. [ 39 ] The fundamental principle of sentencing is also codified, in

Section 718.1, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [ 40 ]

Section 718.2 (b), (

d) and (

e) apply in this case as well: 718.2 A court that imposes a sentence shall also take into consideration the following principles: … (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances; … (

d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. [ 41 ] Subsection (

b) is a codification of the principle of parity. Subsection (

d) directs the Court to consider the least restrictive sanction capable of effecting the purposes of sentencing. Subsection (

e) brings a new principle of sentencing to the process, the principle of restorative justice (see Gladue [1999] 1. S.C.R. 688 and Ipeelee , [2012] 1.S.C.R.433 and McGill, infra.). Indeed, then Chief Justice McMurtry refers to the importance of the restorative principle of sentencing, in the decision of the Court of Appeal in Folino , (infra), a luring case. As the subsection indicates, that principle has particular resonance where an Aboriginal offender is involved. [ 42 ] My task, in applying all the principles and objectives of sentencing, is most prominently to reconcile denunciation and deterrence with the principles of restraint and restorative justice.

[43] Mr. Crant is an Aboriginal offender. While the subsection may have been enacted to address the over-incarceration ofAboriginal offenders, it is noteworthy that Mr. Crant has no criminal record, and until the days before he was granted bail after his arreston these charges, had never been in jail before. The detailed and sensitive Gladue Report gives no indication of any family members ofMr. Crant’s having a criminal history. So the provision is not specific to Mr.

Crant’s previous situation, and indeed, with a minimumpenalty of incarceration on the possession of child pornography count, the court has no choice but to incarcerate, at least for the fourteenday period. No direct connection between the circumstances of Aboriginal heritage and the offence need be shown

Section 718.2(

e) andthe jurisprudence developed in interpreting it requires me to apply the relevant principles in Mr. Crant’s case. The principles of restraintand restorative justice are of particular concern in the case before me. [44] The more difficult question is how to construe the ranges of sentence pronounced by the Courts, in the context of theseprinciples, Mr. Crant’s particular circumstances, and the circumstances of the offence. [45] While not wishing to accept the submission as a matter of fact, that Mr.

Crant would be in jeopardy of violence against himself,as defence counsel suggests, as a result of being gay, aboriginal, a former corrections [sic] officer and convicted of child-related sexoffences, this constellation of circumstances may raise concerns. That is not in itself a reason not to impose a sentence of incarceration,where incarceration is a fit sentence. In fact, with the pornography count, I have no option, with regard to the mandatory minimum of 14days. [46] The sentencing provisions for luring offence at the time permit a conditional sentence.

At the same time, it is clearly my duty totreat denunciation and deterrence as the primary sentencing purposes. Equally, the principle of restraint especially with regard to a firstoffender, of Aboriginal heritage, who has waited so very long on bail conditions, requires me to give serious consideration to aconditional sentence. [47] In R. v. Proulx, the first case in which the Supreme Court of Canada had the opportunity to explain the conditional sentenceregime, Chief Justice Lamer stated: (para 22) “The conditional sentence incorporates some elements of non-custodial measures and some others of incarceration.

Because it is servedin the community, it will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation,reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a [page83]punitive sanction capable of achieving the objectives of denunciation and deterrence.

It is this punitive aspect that distinguishes theconditional sentence from probation, and it is to this issue that I now turn.” [48] He explained further how a conditional sentence may address denunciation The Court remarked on the individualized processwhich sentencing must effect (para 82-83): “This Court has held on a number of occasions that sentencing is an individualized process, in which the trial judge has considerablediscretion in fashioning a fit sentence.

The rationale behind this approach stems from the principle of proportionality, the fundamentalprinciple of sentencing, which provides that a sentence must be proportional to the gravity of the offence and the degree of responsibilityof the offender. Proportionality requires an examination of the specific circumstances of both the offender and the offence so that the"punishment fits the crime". As a by-product of such an individualized approach, there will be inevitable variation in sentences imposedfor particular crimes.

In M. (C.A.), supra, I stated, at para. 92: It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime.... Sentencing is an inherentlyindividualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be afruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree acrossvarious communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needsand current conditions of and in the particular community where the crime occurred.

My difficulty with the suggestion that theproportionality principle presumptively excludes certain offences from the conditional sentencing regime is that such an approachfocuses inordinately on the gravity of the offence and insufficiently on the moral blameworthiness of the offender” (emphasis added) [49] In his powerful analysis of sentencing ranges in the case of R. v. McGill, 2016 ONCJ 138, my colleague Justice Green traces therecent judicial discussions of the concept of range of sentence, in paragraphs 64 to 66.

It is clear that the Courts of Appeal and theSupreme Court of Canada continue to follow the direction set by the then-Chief Justice in Proulx, to emphasize proportionality as thekey principle in determining sentence. To excerpt just a few of the passages highlighted in McGill: - Watt J.A. in Jacko:

(2010) ONCA 452@para90: “To consider a range of sentence as creating a de facto minimum sentence missesthe point[and] ignores the fundamental principle of proportionality .…Individual circumstances matter” - LeBel J in Nasogaluak 2010 SCC 6 , 2010 SCC6@ para 44: …”while courts should pay heed to these ranges, they areguidelines rather than hard and fast rules. A judge can order a sentence outside that range as long as it is in accordance with theprinciples and objectives of sentencing. Thus, a sentence falling outside the regular range of appropriate sentences is not necessarilyunfit.

Regard must be had to all the circumstances of the offence and the offender, and to the needs of the community in which theoffence occurred” - Wagner J. in Lacasse 2015 SCC 64 @ para 57: “Sentencing ranges are nothing more than summaries of the minimum andmaximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles andobjectives.

However, the should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits forthe use of sentencing judges, who must still exercise their discretion in each case” [50] Clearly deterrence and denunciation can be effected through a sentence of incarceration to be served in the community. Indeed,courts recently have taken the view that a suspended sentence may have that effect. The British Columbia Court of Appeal put itconcisely in the case of R. v.

Voong, 2015 BCCA 285, para 39: “Because a breach of the probation order can result in a revocation andsentencing on the original offence, it has been referred to as the “Sword of Damocles” hanging over the offender’s head”

[51] Crown directs me to sentences in other cases creating a range of sentencing, into which Mr. Crant’s circumstances ought to befactored in, along with the circumstances of the offence. The circumstances of this offence appear to me to be unique among the reportedcases, both those to which counsel have directed me and many which I have discovered through my own survey of the cases. I situate theuniqueness in two aspects, primarily. First, the facts are relatively benign. The “child pornography” at issue here is a selfie, of the youngboy, showing his penis. No cruelty or sexual act is involved. The luring is that defined by Subsection 172.1(b), by reference to

section in173(2) of the Criminal Code, which criminalizes exposure of genital organs to a person under sixteen for a sexual purpose. I did notconvict Mr. Crant on anything more than these rather passive, nonetheless disturbing, offences. Second, the photo and video are isolatedevents. Of course one cannot speculate about what might have happened had PND’s mother not discovered the images. Mr. Crant pointsout that even before he was visited by police, he called his mother to confirm the suspicions he had about the age of the child.

I surmisefrom all I have learned about the offender that he would not have pursued this ill-conceived communication upon confirmation of hissuspicion. What I must focus on for the purpose of sentencing are the events proved by the Crown: one photo and one video, and thecontext in which they were sent. [52] The facts on the child pornography possession are far from the typically huge numbers of photos’ stored by child pornographycollectors, whose actions feed the abuse of children forced to portray their sexual violation for the entertainment of these criminals.

Ireference the words of Justice Molloy in R. v Kwok, (ON SC), [2007] O.J. No.457 at paragraphs 48 – 51, describingthe thousands of images in that offender’s collection, and the violence and depravity, over and above the mere fact that the subject is achild or even and infant. Justice Molloy discusses the fact that these are not simply passive images, they depict the criminal and cruelacts performed on the children in them. The Court cites the searing words of one of the children, thirteen at the time she wrote theimpact statement.

The child, M.A., describes the “absolute worst thing” about being victimized as the subject of pornographic pictures, isthat being posted on the internet, they are accessed indefinitely, and so her “”virtual abuse” will go on forever” (para 51). [53] Justice McLeod, in her relatively recent decision on Truong, [2015] O.J. No.3943, refers to the much earlier dicta of the Courtof Appeal in describing the Court’s motivation for strong reliance on the principles of denunciation and deterrence in child pornographycases: “R. v. Strompel (ON CA), [1995] O.J.

No. 2772 spoke of the need to recognize that the defendants whodownload this offensive material are feeding a market for the creation of such appalling images of children being violated and having tosuffer such violation with smiles on their faces. That must be deterred” These fact patterns, attracting strong deterrence as they must, are far from the facts of Mr.

Crant’s case. [54] The luring offence, as I found it in this case, is linked to another variety of social evil facilitated by telecommunications access,where, together with the sexualized selfies of child participants, predators “groom” children to ready them to accept sexual contact:(Rafiq , supra, para 53): “Unlike many of the child luring cases that come before the court, the respondent’s conduct was not simply preparatory to a crime, butamounted to distinct serious offences repeatedly committed on a 12 year-old child over a prolonged period of time.” [55] The Rafiq judgment is of particular interest, as it distinguishes “many of the child luring cases that come before the court”where the conduct was simply preparatory to a crime.

Clearly the luring conduct in this present case was a crime. The offender wascommunicating with a child, not an undercover officer. It did not lead to the further offences which in many cases accompany the luringconduct. [56] In Rafiq, he Chief Justice explained why a conditional sentence, as was imposed on the guilty plea, was not a fit sentence.Strathy C.J.O. says at paragraph 47: “The prolonged abuse of an actual, very young girl distinguishes this case from others in which this court has imposed conditionalsentences: see e.g. R. v. Folino; R. v. El-Jamel, 2010 ONCA 575, 261 C.C.C. (3d) 293.

In Folino, the "victim" was an undercover police officer posing as a 13-year-old girl. The offence took place over a 19-day period, andinvolved six Internet chats and eight emails. In El-Jamel, the appellant had sexually explicit chats with a police officer, believing she was12 years old. The offence took place over a three-day period. In contrast, this case involved a real victim -- someone the respondent knew to be a naïve 12 year-old girl.

He induced her to make andtransmit pornographic pictures, insert items in her vagina, masturbate and participate in sexually explicit chats -- all for his sexualgratification. He did this repeatedly, over a span of six months. In my view, his conduct was far more harmful than arranging a sexualencounter with an adult police officer believing she was a child.” [57] Thus, the authorities would suggest that the offence in the case at bar, was of lesser seriousness.

Serious by definition, not asdiminished in seriousness as offences involving undercover officers posing as young people in sexualized telecommunication; yet not ofthe duration or context of actual offences as cases like Rafiq or Woodward. [58] I turn to the circumstances of the offender. I leave aside his lawyer’s ungrounded plea to keep his client from the “quadruplejeopardy” he faces in jail, and return to his situation, referred to earlier, as an offender. [59] Mr. Crant was born in C[…], Newfoundland, on October 14, 1964, one of eleven children in his family.

I have referred toinformation provided in the Gladue Report and confirmed also by reports to the Presentence Report writer, that while it was a stricthousehold, where physical discipline by father was the norm, the sexual abuse by a teacher and other members of the community scarredMr. Crant psychologically, and interfered significantly with his social and emotional development. Mr. Crant expressed to these writershis fear of confiding in his parents, due to his father’s temper and the anticipated rejection of his account. He did confide in his mother,years after his father died. Mr.

Crant’s father died when the former was 23. He reflected on not seeking to share the abuse with hisparents earlier, in this way:

“I never told my father. I told my mother years later when I came out to Toronto, after my dad had died. If I told my father, even though my father was abusive to us, I think my father would have taken a tire rod to him. My mother told me that too. That would have caused more problems.” (Gladue Report p.12) [ 60 ] As outlined earlier, Mr. Crant met with considerable abuse in his community: from his father, from a teacher and three other adult men in the community by way of sexual abuse, and from his peers. His ability to overcome the situation by applying himself to his studies was much to his credit.

He refers to one teacher, who kindly recognized his ability and supported him in excelling in his academic achievement. His one friend at school remains a friend to this day. One of his sisters, who spoke with both the presentence report writer and the Gladue Report writer, expresses surprise at the convictions in this case, and in some measure, blames the victim. She empathizes with her brother’s dilemma in enduring the trial process for these several years: “Chandra McDonald, the subject’s sister, states she “don’t believe all that stuff” indicating that she knows him and doesn’t believe in any of it. Ms.

McDonald informs the subject and she grew up in a strict household but everyone got along. Ms. McDonald indicated she never had any concerns about the subject and believes it is “not his personality” to commit these offences. Ms. McDonald also mentions that the subject matter of the whole case is not spoken about between the subject’s siblings and indicates she is the only sibling that currently communicates with the subject. Ms. McDonald states she had stressed about the whole case for years and cannot imagine what the subject is going through.

She states that this case would be a “learning curve to parents because they allow children to be on social media when they are young and leave it unmonitored”, (PSR p.5) [ 61 ] In fact, I have watched Mr. Crant through these proceeding, while he has expressed both physical and emotional difficulties which have beset him over these years, and to have watched him in court, the accounts in the reports of his need to seek psychiatric care do not surprise me. It was a term of his bail that he seek counselling as directed by surety, and Mr. Crant was in care of a psychiatrist for 16 months.

The doctor is quoted as saying: `“The charges were “totally unfounded in the subject’s point of view” and the subject believes the mother of the victim was “covering up the fact her son was gay and blamed the subject” (PSR p.4) I have earlier referred to the difficulty presented to the Court by detailed reference to an account attributed to the offender, which is at odds with the finding of the Court. In this case, while inadmissible ( Essaghaier, supra), it is nonetheless instructive to see how Mr. Crant has processed the trial process and the finding of the Court.

Again, I refer to the PSR: “He does not accept any responsibility for his offences but does admit to talking to the victim. In regards to the video, the subject does admit to sending it but denies knowing the victim was underage and maintains at the time he was just looking to meet new people online since he had “trouble meeting men in public”. The subject also informs he had never met the victim in person and that the victim had “lied in court in order to indict him”.

Furthermore, the subject informs the victim and the people of the community had a “mob mentality” and was “out to get him” stating him being gay as the reason. He reports the victim portrayed themselves as an adult and made up lies about meeting the subject during his last visit to Newfoundland. The subject indicates he plans on “bringing his case to Gladue” to appeal and states this whole case “has been more traumatizing than being sexually molested as a child”. (PSR p.4) [ 62 ] Knowing all of the evidence, including the statement to the officer and Mr.

Crant’s statement to the Court on sentencing, I do not believe that this categorical characterization of no responsibility is entirely accurate. However, these statements to presentence report writer are significant for the purpose of sentencing, as they give some barometer of the extent to which the offender experience remorse for his actions, and the extent to which he may be a risk to the community in the future.

He has stated to the presentence report writer that “he is willing to attend counselling if the Court requires it, not because he believes he needs to attend counselling but because the Court orders it”. [ 63 ] In terms of my reliance, in any degree, on statements which are at odds with my findings, I do so only as the Court has always been entitled to refer on sentencing, to information which is reliable hearsay, and if disputed, to find facts beyond reasonable doubt.

Having regard to the issues which underlie my findings supporting the conviction, the evidence is clear and provides proof beyond reasonable doubt. Having regard to Mr. Crant’s understanding of the nature of the convictions, I would like to be sure he understands which counts underlie the convictions. They involve the photo of the child exposing himself, which was on the offender’s* cellphone. They involve as well the electronic sending of images of himself, showing him masturbating in the case of the video and exposing his genitals in the case of the photo.

I certainly made other findings in the course of the trial and Crown asks me to consider those findings on sentence, although for various reasons, the evidence before me did not lead to convictions. I acknowledge that Mr. Crant accepts his communication with the young person, and the sending of the video. I re-iterate, from the reasons for judgment of last year, that his statement to the officer in charge on first being investigated, always conceded to be voluntary, and the content of the messages between himself and the young person, have been the fundamental aspects of the record supporting my finding.

My hope is that once the dust has settled on this protracted litigation, Mr. Crant’s ability to gain insight into his actions in this instance will grow. E. Applying the Law to the Facts [ 64 ] Let me first set out areas where the law is clear and immutable: the Crown proceeded by

summary conviction on these charges, which arose in 2011. The Criminal Code at the time imposed a sentencing range of liability to imprisonment for a term not exceeding eighteen months, and a minimum punishment of imprisonment for a term of fourteen days, with regard to the possession of child pornography count, under

Section 163.1 (4(b). The Code provided as well, at the time, punishment for the count of “luring a child” under

Section 172.1(2)(b), where the Crown proceeds by

summary conviction, liability to imprisonment for a term not exceeding eighteen months. [ 65 ] With a minimum penalty prescribed by law, the child pornography possession counts cannot be dealt with by conditional sentence. The provisions of

Section 742.1 allow consideration of the luring offence for conditional sentence: 742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under

section 742.3, if

(

a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (

b) the offence is not an offence punishable by a minimum term of imprisonment; (

c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; (

d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more; (

e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that (

i) resulted in bodily harm, (ii) involved the import, export, trafficking or production of drugs, or (iii) involved the use of a weapon; and (

f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions: (

i) section 144 (prison breach), (ii)

section 264 (criminal harassment), (iii)

section 271 (sexual assault), (iv)

section 279 (kidnapping), (

v) section 279.02 (trafficking in persons — material benefit), (vi)

section 281 (abduction of person under fourteen), (vii)

section 333.1 (motor vehicle theft), (viii) paragraph 334(a) (theft over $5000), (ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house), (

x) section 349 (being unlawfully in a dwelling-house), and (xi)

section 435 (arson for fraudulent purpose) [ 66 ] In Mr. Crant’s case, clearly the “luring” offence is liable to maximum punishment of imprisonment of less than two years: the maximum at the time was eighteen months. While I do not quarrel with the proposition that this type of offence may well endanger the safety of the community, in the particular circumstances here, I am satisfied that the service of the sentence in the community would not endanger the safety of the community, and would be consistent with the fundamental purpose and principles of sentencing set out in

Section 718 to 718.2. I will detail that latter point, in applying the objectives and principles of sentencing to Mr. Crant’s case. [ 67 ] The range of sentence established by the Courts in cases of possession of child pornography, current at the time of the offence, was submitted by Crown to be in the range of 18 months to 2 years less a day. In applying the cases which Crown relies on, to establish that range, I am mindful of the distinction in the available sentences where the Crown has proceeded by indictment, as opposed to the maximum ( and minimum) penalties available on

summary conviction. In Woodward , Jarvis , Rafiq and Jepson , to name only a few of the significant sentencing cases in this area, the Crown proceeded by indictment. The maximum sentences were different from the ones on

summary conviction. Without creating a chart to demonstrate the relative penalties available on

summary conviction versus indictment at the time each of those cases was prosecuted, I will simply point out that in the case at bar, in 2011, the possession of child pornography offence was punishable on indictment to a maximum five years imprisonment and minimum 45 days, whereas the range available on

summary conviction, the case before me, is minimum 14 days to maximum eighteen months. The luring offence at the time carried a maximum ten years on indictment, and on

summary conviction, as here, a term of imprisonment not exceeding eighteen months. [ 68 ] Thus, while the principles expressed by the Courts in those cases are instructive and I am bound to apply them, the ranges of sentences only relate to the law governing the cases proceeded by indictment, under the prevailing law at the time. In this case, the numerical ranges simply do not apply, as the Crown has proceeded by

summary conviction. Clearly, eighteen months is the ceiling, the maximum sentence available, a fit sentence for the worst offender and the worst offence. Mr. Crant’s case is far from that. Moreover, the offences in the cases relied on by the Crown are substantially different from the one before this Court. [ 69 ] In the case of R. v. Woodward , (supra), the substance of the luring count was preparatory communications by the offender leading to the actual sexual assault of a twelve year old girl, on the pretense of paying her millions of dollars.

Not only was the child induced to participate in conduct which the offender normalized over the lengthy process of “grooming”, she was induced to accept her role as prostituting herself for the purpose. Clearly, that conduct was well beyond the conduct before me for purpose of sentencing. As a matter of totality, the Crown having proceeded by indictment, the sentence was 6.5 years, 18 months of that being the sentence for the luring.

I note that at the time, the maximum penalty for the offence, proceeding by indictment, was a term of imprisonment not exceeding ten years. [ 70 ] In the case of R. v Rafiq , (supra), the sentence appeal considered the propriety of a conditional sentence in a case of luring. The

facts there involved a 12 year old girl, who participated over a nine month period with the directions of the offender, 24 years old at thetime, who directed her online to perform “sexual” acts. As a result she sent nude photos of herself including graphic close-ups of hervagina, photos of her inserting objects in her body and performing “oral sex” on a banana; conducting lengthy chats while hemasturbated and encouraged her to do the same. He sent her an online instruction manual on performing oral sex.

The court noted thatexploitation of a child to produce “made to order” pornography was a significant aggravating factor. The Court noted that while therewas no minimum sentence at the time Mr. Rafiq was sentenced, there was, when the appeal was heard. The Court stated that given therelevant applicable principles, a conditional sentence was not an appropriate outcome, in that case.

Despite good prospects forrehabilitation of the offender and indeed his guilty plea and the absence of any threat to the community’s safety, the failure to adequatelytake into account the impact on the victim made this case unsuitable for conditional sentence.

The Chief Justice stated that “A custodialsentence is required to denounce his conduct and to make it clear to those would use the Internet to abuse young children that suchconduct has serious punitive consequences.” (para. 52). [71] This determination follows the statement of the Court of Appeal in a luring case, where an undercover officer was involved: “Aconditional sentence will only be appropriate in the rarest of cases” (R. v. Folino (2005) (ON CA), 77 O.R. (3d)641). [72] Mr.

Folino admitted on his guilty plea that he had engaged in online conversations of an increasingly explicit nature with aperson he was led to believe was a 13 year old girl. The suggestions made online culminated in the offender making suggestions of howshe could ready herself for intercourse with him. He arranged to meet her for the purpose of committing sexual acts. He drove 22kilometers to the appointed meeting place, and was intercepted and arrested by police.

The person he believed to have been the child wasin fact an undercover police officer. [73] In that case, the sentence of 9 months incarceration was converted to a conditional sentence of 18 months. There was freshevidence before the Court of Appeal in that case, which showed the impact which incarceration had had on Mr. Folino’s health, and alsoshowed evidence of his ongoing counselling. The counsellor concluded that his family’s and particularly his children’s well-beingdepended on Folino’s continued presence with them.

At the original sentencing hearing, a psychiatric report, including phallometrictesting, showed the offender did not suffer pedophilia or hebephilia, and presented a negligible risk of repeat offending. The Court ofAppeal viewed the error of the sentencing judge as not taking this evidence into account properly. As well, the fact that the offender hadtaken responsibility for his actions, and was engaged in extensive ongoing counselling, in which he had made progress.

The Court saidthat the sentencing judge, in the particular circumstances of that case, had “overemphasized the punitive sentencing objectives ofdenunciation and deterrence and failed to consider the restorative objectives of rehabilitation, reparations and promotion of a sense ofresponsibility”. This was not to detract from the seriousness with which the offence of child luring must be dealt with by the Court, saidthen-Chief Justice McMurtry. [74] I note the case of R. v. Jepson, [2004] O.J.

No.5521, referred to in the Woodward case, as Justice Ratushny’s description ofprinciple for sentencing in the luring offence explains the role of denunciation clearly. She says: (para 19) “Child luring over the internet requires strong denunciation because of the ease with which offenders can prey on innocent children outof the reach of public eye.” [75] In the Jarvis case too, Justice Rosenberg spoke for the Court of Appeal, declining to vary a six month custodial sentence to aconditional sentence.

He stated that a conditional sentence “was generally not appropriate” in this type of case. [76] I refer as well to the case of Alicandro (supra), decided by our Court of Appeal in 2009. The sentence appeal related to the childluring offence, where an undercover officer “posed” as a 13 year old girl, and the offender masturbated to ejaculation and sent the videoto an email address, which he believed to be that of a 13 year old girl. A ninety day sentence was imposed after trial. A conditionalsentence was sought.

Little detail was provided in the appellate decision, which indicated: “The mitigating factors are acknowledged. However, deterrence and denunciation are the primary considerations when sentencing for anoffence like the one committed here. A short custodial sentence was appropriate in the circumstances (ref R. v Jarvis, (ON CA), [2006] O.J. No. 3241, R. v. Folino supra) In this case the mitigating factors were: no prior criminal record, no actual exposure to a child; no history of sexual interest in children. [77] The mitigating factors in this case are unique, as in my view, are the circumstances of the offence.

Mr. Crant is entitled toconsideration as a man of Aboriginal heritage. We hear of many cases of First Nations offenders, whose youth was marked by abuse andbullying. In this case, nothing suggests that the bullying resulted from his Aboriginal identity: rather, it stemmed from his being gay.Further, Mr. Crant was himself abused sexually at a young age, He was the subject of severe physical discipline at home and at school,and later, to physical assaults by way of homophobic bullying. My impression is that Mr. Crant developed a real fear of authority.

Heidentified the young person here in question as one who was similarly situated to himself, on the same reserve community, and, hethought, susceptible to the same ill treatment. He thought that by providing some positive reinforcement and “information” about a gayidentity, he could spare the young person some of the tortured history he experienced himself. Sadly, his efforts went far beyond hisstated intentions. [78] The evidence before me provides no basis to suspect, however, that Mr. Crant is otherwise inclined to seek out young sexobjects, not online and not in person.

The evidence is clear that he did not collect child pornography. The entire basis of the convictionfor child pornography is the one photo sent to him by the child in the case. Similarly, the luring conviction is founded on his owntransmission of a video of himself masturbating and a photo of himself exposing his genitals. Despite some talk about his return toNewfoundland to engage in sex acts with the child, which did not form the basis for a conviction in this case, I accept Mr.

Crant’sassertion that he would not have acted on that loose talk. [79] I do not have the benefit of any psychological or psychiatric profile of Mr. Crant. I do have the reports of the presentence reportwriter and the Gladue Report writer. I have seen Mr. Crant’s suffering through the trial process. I am puzzled by his continued claims ofinnocence, as indicated earlier. I believe that having sought psychiatric help through the course of this trial, and knowing that he is open

to further counselling, he is in all the circumstances of no risk to the community to further offending. He has a supportive network, and although the nature of his employment has been much diminished by the conditions of his bail, which impose an absolute prohibition of his access to the internet, he has an impressive work history.

Indeed he has an impressive work ethic, as demonstrated by his life history and his ability to gain strength from the work he has maintained through the trial, “embarrassing” as he says it is to him. [ 80 ] Earlier in these reasons, I reviewed the authority establishing that sentencing is an individualized process, and that proportionality is the fundamental principle underlying it. The authority is clear as well, from Proulx to Voong and McGill , that incarceration is not essential to effect denunciation and deterrence.

A conditional sentence, and even a suspended sentence may serve those objectives, in some circumstances. [ 81 ] In this case, there is no objective or principle of sentencing that cannot be served as well by a conditional sentence as by a sentence of incarceration. The harm done in this case is minimal, although I recognize that the complainant has certainly suffered through the trial process. Mr. Crant’s history shows me that it is his very history of being victimized that likely motivated his contact with PND.

Unlike so many cases, where an abused person perpetuates the abuse he suffered by visiting it on another, this is a unique situation, where with a misguided view to helping the young person, Mr. Crant engaged in the online sexual conduct that he did. Incarcerating him will perhaps serve some purpose of general deterrence and denunciation, and incarcerate him I will, as the law requires. However, the principles of denunciation and deterrence, which might be served by a lengthy period of incarceration, can be expressed in this case by a lengthy period on conditional sentence. Mr.

Crant can get on with his life, which has been dragged down by this long trial process. I will craft conditions of sentence to demonstrate that the community is better served by his presence in the community, and to permit Mr. Crant, without the weight of the trial process upon him, to more fully explore the issues he has carried with him through his life, and which undoubtedly played in his commission of these offences. [ 82 ] The minimum penalty for possession of child pornography offence, under

Section 163.1(4)(

b) in 2011, was 14 days in jail. This offence attracts a greater penalty than the minimum, as the child was directly implicated in making the photograph in Mr. Crant’s possession. PND took the photo at the instigation of the offender. The mitigating circumstances, as indicated above were unique for many reasons, not least among them being Mr. Crant’s absence of proclivity to collect child pornography. I am imposing a sentence of 60 days jail on that count, four times the minimum penalty at the time. That sentence may be served on an intermittent basis.

I recognize that denunciation and deterrence are the primary considerations on sentencing here, but not to the exclusion of rehabilitation. The principles of restraint and restorative justice are of particular significance in Mr. Crant’s case. Further, as I will impose a significant conditional sentence on the luring count, the principle of totality will allow the entire sentence to be read as addressing the objectives of denunciation and deterrence. [ 83 ] I take into account that Mr. Crant has been bound by bail conditions on a recognizance with surety since November 18, 2011.

He was in jail for three days prior to his release. His bail conditions were onerous as he was not permitted to access the internet for any purpose, for five years, four months less two days. Given the nature of his occupation to that point, this kept him from continuing employment in his field. Moreover, as his photo was circulated by Toronto Police and from there by television and other news outlets, he gained a notoriety which immediately led to his being fired from his position. I am taking into account the lengthy term of curtailed liberty, to this extent, while on bail ( R. v.

Downes (2006) 205 C.C.C.C. (3d) 488 (OCA)). I do note that he has not breached his conditions at all. He has no prior record. As I have outlined, Mr. Crant has overcome some extremely difficult circumstances in his life to achieve success professionally and in his personal life. Despite the confusing contradictions concerning his acknowledgment of responsibility for the offences, he clearly expressed remorse to PND specifically, when given the opportunity to speak on sentencing. He said as well that he was sorry it happened to PND, and regretted that he had taken so much of the Court’s time.

I am confident that Mr. Crant will never find himself before a criminal court again. I am keen that he work in counselling however: I believe that he can gain greater clarity, with some perspective, on the events of these past years, since August 2011. Perhaps he can settle some of the ghosts that understandably haunt him for his early years. I intend to bolster the denunciatory aspect of the sentence by imposing significant community service. [ 84 ] And with that, I am convinced that this is a case, which is exceptional on the facts underlying the convictions, and on the circumstances of the offender.

This is a case where a conditional sentence will be effective in expressing denunciation and deterrence. No one, knowing the ordeal Mr. Crant has suffered as a result of his criminal actions in this case, and knowing that a short stay in jail and a lengthier time on conditional sentence, would engage in this behavior. That is denunciation and deterrence. Yet by not being required to serve a term in jail on the luring offence, the sentence will address the principles of restorative justice. Mr.

Crant, a member of the Miawpukek First Nation, appears to have struggled with the circumstances of his childhood and youth for many, many years, and I do not propose to unnecessarily victimize him with a sentence of incarceration. That is the principle of restraint, in action. I am imposing a conditional sentence of 9 months on the luring count. [ 85 ] I will hear your further submissions on conditions of the sentence and on ancillary orders. Released: March 16, 2017. Signed: Justice S.R.

Shamai *CORRIGENDUM: March 21, 2017 Counsel drew to my attention, upon my reading the judgment in Court that I misspoke at paragraph 19. It was the Complainant’s cellphone, not that of the Offender, where the photo was found. As well counsel pointed out that there are typographical errors. I have hopefully corrected errors of that nature since reading my reasons in Court.