Her Majesty the Queen - v. -, 2015 SKPC 80

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 080 Date: July 8, 2015 Information: 43792914 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - M.G.P. Appearing: Loreley Berra For the Crown Estes Fonkalsrud For the Accused SENTENCING DECISION M.

GORDON , J Note: Pursuant to s. 486(4) of the Criminal Code , the Court made an order directing that the identity of the complainant or a witness, and any information that could disclose the identity of the complainant or witness, shall not be published in any document or broadcast in any way. [ 1 ] M.G.P. entered a guilty plea to the following offence: on or about the 14 th day of February A.D. 2013, at or near Moose Jaw,

Saskatchewan did by means of telecommunication communicate with a person namely R.D., who the accused believes is under the age of 16 years for the purposes of facilitating the commission of an offence under s. 152 of the Criminal Code , counselling R.D. to touch directly or indirectly with a part of the body the body of L. (last name unknown), a person under the age of 16 years, contrary to s. 172.1(1) (

b) of the Criminal Code. [ 2 ] On January 13, 2014, the Crown indicated it was proceeding by indictment. However on January 20, 2014, the Crown re- elected to proceed summarily. This was with the consent of the defence. The Crown suggests a period of incarceration of six months is the appropriate sentence. The defence asks the Court to consider the minimum sentence of 90 days to be served intermittently on weekends, coupled with a probation order with strict conditions.

Both counsel agreed that a conditional sentence is not available for this offence and both parties agreed on the ancillary orders. [ 3 ] The Crown related the circumstances of the offence as follows: - Ms. Berra advised that there are sophisticated systems in place to detect various offences that can occur with the use of a computer and the Internet. One of the systems, called social network tag, records conversations that are graphic in nature. This network reports to the national centre for missing and sexually abused children. Finally the RCMP get this information. Saskatchewan has a child exploitation unit.

Further investigation revealed that the IP address for a person named Emily Daily involved graphic conversation and chats and the address was National Defence Bushell Park, Moose Jaw. - The Saskatchewan ICE Team contacted the Armed Forces Base at Moose Jaw and advised the military commander that someone had been logging on and was involved in an inappropriate conversation from this IP address.

The information is that this IP address is not a residential one but one that is a military account which requires the usual user name and password. - M.G.P. is requested by his superior to be in charge of the internal investigation with respect to this matter. He was provided with the IP addresses and asked to be the lead investigator. On November 15, 2013, M.G.P. goes to his Commanding Officer Sutton and confesses. He is arrested and placed in custody.

M.G.P., after being properly advised of his Charter rights and provided the police warning, fully confesses. - M.G.P. states he took photos from his daughter’s Facebook account and used them in his profile. He thought this would be more acceptable. The evidence reveals that M.G.P. had several chats with a girl named R.D. on February 13 and 14. M.G.P. pretended to be 15 years old. The chats start out alright but change to be very sexually explicit and graphic. These go on for many hours. - The next day the chats start at 7:00 a.m. and go on until 3:00 p.m.

M.G.P. encourages the young woman to do certain things of a sexual nature. He also encourages/suggests she experiment with her 12 year old cousin who was going to visit for the weekend to determine her sexual orientation. M.G.P. encourages her to touch and have sex with her young cousin. The accused encourages sexual acts and sexual experimentation. The accused makes comments such as “wish I were there”, “wet” and “sweet”. - M.G.P. was suspended immediately from his employment without pay and terminated on the day he entered his guilty plea. His benefits and pension are also affected.

M.G.P. has taken this in his stride. Both sides of his family know about this matter and support him. He and his wife are separated right now but she still supports him. They have gone to counselling. He has incurred more debt and his entire financial stability and retirement plans have been affected. M.G.P. has been very diligent and obtained various jobs, mostly manual work, not full-time and for considerably less pay. M.G.P. has had to sell personal items such as his truck and motorcycle to make ends meet. - There is a history of depression in his family and he suffers from anxiety and sleeping problems.

He has sought professional help. He has seen a registered psychologist and counsellor. More recently he has been referred by his doctor to a registered psychologist. - The defence asks, considering M.G.P.’s personal circumstances, that the minimum period of incarceration be imposed to be served on an intermittent basis. [ 4 ] The defendant did not take issue with these circumstances.

Defence counsel advised the Court he had complied with the requirements of s. 606(4) of the Code and was satisfied that M.G.P. admitted to the essential elements of the offence. [ 5 ] The Crown said the main sentencing principles that need to be emphasized in this type of an offence are denunciation and deterrence. There are many aggravating factors as well and in particular, this is an offence in relation to young persons and more than one child was involved.

In addition, the Crown says the language and sexual content of the chats and the fact that the offender used a picture of his 15 year old daughter to legitimize his position was an aggravating factor, as well as the chats were repeated, lengthy and

detailed. Finally the Crown says the offender committed the offence while at work. M.G.P.’s employment was in the technology field and he was capable of using technology to his advantage, and arguably work gave him an extra layer or measure of protection rather than doing this on home computers. [ 6 ] The defence suggests that the minimum sentence to be served intermittently is within the range for a person such as this particular offender.

M.G.P. has had an exemplary career, served his country in the military, is from a military family, is a good husband/father, is a good community minded person and is a hard worker, and there were many letters of reference to attest to this. M.G.P. is very remorseful and he has taken significant steps with respect to personal counselling. He has family support and he is willing to follow through on any conditions that the Court imposes. Most importantly, M.G.P. offered a guilty plea to the charge.

As soon as M.G.P. was confronted by his boss at work, in fact his boss requested that he look into this matter as they had received information that this was taking place, M.G.P. immediately confessed. The defence points out given his technical knowledge, he could have buried all evidence and it would have been a more costly investigation to bring this matter to light. As well, the defence suggests there were only two incidents. There has been no contact and there was no attempt or plans to contact the victims.

He is assessed as a low risk to re-offend in the pre-sentence report and of course M.G.P. comes before the Court as a mature 58 year old with no criminal record. THE LAW [ 7 ] The following Criminal Code sections set out the purposes and principles of sentencing: 718 The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (

a) to denounce 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 and to the community. 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. 718.2 A court that imposes a sentence shall also take into consideration the following principles: (

a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing, ... (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years, (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim, (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, ... shall be deemed to be aggravating circumstances; (

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

c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh; (

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 should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[8]

Section 172.1(2)(

b) is the punishment

section for this offence and reads as follows:

(2) Every person who commits an offence under subsection (1) (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than 18 months and toa minimum punishment of imprisonment for a term of 90 days. [9] Therefore the Court quite frankly has limited discretion despite the general sentencing principles in s. 718, and the range thatI am considering in this sentence is the minimum 90 days to the maximum of six months as suggested by the Crown. [10] In R v El-Jamel, 2010 ONCA 575, Watt J.A. in his dissent, explains the offence of child luring as follows: [32]

Section 172.1(1)(

c) of the Criminal Code creates a preparatory crime. The conduct that the provision criminalizes not only precedesthe commission of the sexual offences to which it refers, but also falls on the preparation side of the preparation/attempt divide. Thelegislative objective that underpins the provision is prophylactic in nature - to prevent the risk of sexual abuse of children by barring thedoor in advance of the predator’s entry: R. v. Legare, 2009 SCC 56 , [2009] 3 S.C.R. 551, at para. 25.

The exploitative reserveof the Internet is almost limitless, the anonymity it affords a magic elixir to reduce the inhibitions and exploit the curiosity, immaturity orsexual precocity of young persons. [11] The Ontario Court of Appeal in R v Alicandro, 2009 ONCA 133, has this to say about the

section at paragraph 36: The language of s. 172.1 leaves no doubt that it was enacted to protect children against the very specific danger posed by certain kinds ofcommunications via computer systems. The Internet is a medium in which adults can engage in anonymous, low visibility and repeatedcontact with potentially vulnerable children. The Internet can be a fertile breeding ground [page 184] for the grooming and preparationassociated with the sexual exploitation of children by adults.

One author has described the danger in these terms: For those inclined to use computers as a tool for the achievement of criminal ends, the Internet provides a vast, rapid and inexpensiveway to commit, attempt to commit, counsel or facilitate the commission of unlawful acts. The Internet’s one-too-many broadcastcapability allows offenders to cast their nets widely. It also allows these nets to be cast anonymously or through misrepresentation as tothe communicator’s true identity. Too often, these nets ensnare, as they’re designed to, the most vulnerable members of our community -- children and youth. . .

Cyberspace also provides abuse-intent adults with unprecedented opportunities for interacting with children that would almost certainlybe blocked in the physical world. The rapid development and convergence of new technologies will only serve to compound theproblem.

Children are the front-runners in the use of new technologies and in the exploration of social life within virtual settings. [12] Again, the Ontario Court of Appeal put it this way in R v Folino, (ON CA), [2005] 77 OR (3d) 641[Folino], at paragraph 19, Chief Justice McMurtry states as follows: The sentencing judge went on to stress the importance of protecting children from sexual abuse through means of the Internet, which“allows predators to surreptitiously and easily communicate with youths and negatively influence them and prey upon them, undetectedby parents or other responsible adults”. [13] Finally in R v Careen, 2012 BCSC 918 [Careen], the Supreme Court of British Columbia says at paragraph 27: It goes almost without saying that denunciation and general and specific deterrence must be given significant emphasis in any sentencingfor this type of offence.

The whole purpose of this section’s existence is to protect young persons, who may be physically mature, butwho still lack the emotional or intellectual maturity to safeguard their own sexual integrity from being exploited by those adults whohave unique access and potential influence over them by virtue of a position of trust. A teacher is a classic example of such a person.

Society must express its collective condemnation of conduct that seeks to make use of vulnerable youth in this manner and the general message must go out, through the sentences imposed, that those who might be tempted to engage in it can expect significant consequences. [ 14 ] All of the cases that I have referred to make mention that denunciation and specific and general deterrence are the sentencing principles that need to be emphasized in a charge of this sort. [ 15 ] However, the Court in Folino agreed that the objectives of denunciation and deterrence are paramount, however the Court cautioned that the Court must not overlook all relevant factors.

In the Folino case, the sentencing judge did not consider some of the other mitigating factors including uncontradicted expert evidence that the risk of the appellant repeating the type of behaviour was negligible. In addition, the Court said at paragraph 28 the sentencing judge did not “refer to the expert evidence indicating the appellant has taken responsibility for his actions and has been receiving ongoing psychological therapy as well as marital and family counselling.

According to that evidence, the appellant has shown significant progress through this treatment in terms of learning how to better cope with stress.” The Court goes on at paragraph 29 that the sentencing judge did not take into account evidence that showed the offender’s conduct has had a devastating impact on himself and his family. He lost his job and financial hardship was experienced. [ 16 ] The Crown suggests that the mandatory minimum sentence of 90 days to be served on weekends does not adequately serve the sentencing objectives of denunciation and deterrence.

The Crown suggests a continued period of incarceration is needed to address the sentencing principles and satisfy the fundamental principle of proportionality. The Crown suggests that there is nothing in this case to take it out of the general rule that incarceration follows a conviction for child luring. There is nothing in the circumstances of the offence or the offender.

In fact it is often, as it is in fraud cases, that the offender comes before the Court as a mature individual with no criminal record. [ 17 ] Defence counsel agreed that denunciation and deterrence are the sentencing principles to be emphasized. However, the defence suggests that the mitigating circumstances are many and that M.G.P. and his family have suffered substantially as a result of this incident. Defence stressed the importance of the confession, cooperation by M.G.P. and the many letters of reference that spoke of M.G.P. in glowing terms.

The defence points out there was really two risk assessments in the pre-sentence report being the SPRA or the Saskatchewan Primary Risk Assessment, which is a risk assessment tool which examines a number of risk factors evidenced in the research as being predictive of general criminal recidivism. M.G.P.’s overall risk for general re-offending was assessed as being low. M.G.P. was also assessed using the Static-99R and STABLE-2007, which are actuarial measures of risk for sexual offence recidivism. These tests have been shown to be valid in ranking offenders according to their relative risk for sexual recidivism.

The report states at the bottom of page 5 as follows: As such, Michael’s combined Static-99R and STABLE-2007 score place him in the low range.

Validation research has shown offenders with the same risk level as Michael (routine correctional sample) have recidivated sexually at approximately 1.7 percent over two years and 2.6 percent over four years. [ 18 ] The report writer goes on to indicate as follows, and I quote from page 6 of the report under Intervention Strategies: The most appropriate intervention strategies in this case would be those that address education and treatment around Michael’s sexually offending behaviour. Included in these, but not limited to, would be sexual preoccupation and deviant preferences.

Targeting these high risk factors would assist Michael in learning tools and skills necessary to develop intervention strategies to reduce his risk of sexual re- offending. [ 19 ] The writer goes on to say as follows: Michael continues to exhibit difficulty in accepting responsibility for his actions with respect to his offence. He has articulated his desire to assist law enforcement in reducing inappropriate computer correspondence rather than acknowledging the role he played in his own offence. Therefore, Michael would benefit from ongoing self-exploration around his offence and the offence cycle.

[ 20 ] The defence asked me to consider the case of Careen where the British Columbia Supreme Court sentenced Mr. Careen to 60 days (the mandatory minimum for the offence was 45 days because the Crown had proceeded by indictment) to be served intermittently from Wednesdays at 7:00 p.m. to Fridays at 7:00 p.m. He was placed on a probation order when he was not in custody for 12 months with certain conditions. The Court says at paragraph 39 that it is satisfied that the needs of denunciation and general deterrence can be met by an appropriately structured intermittent sentence in this case. This allows Mr.

Careen to preserve his current employment. Mr. Careen was a teacher. The circumstances involved Mr. Careen engaging with one of his high school students in a series of text message conversations which began with a clumsy sexual pun by Mr. Careen and progressed to explicit conversations about having sexual contact with each other. There were brief exchanges in the next couple of days. There was no contact and the text conversations did not continue. It was some months later that this incident was reported by friends of the student. Mr. Careen was 52 years old with no criminal record.

He had lost his job of teaching and recognizes he will never teach again. He was assessed as a low risk to re-offend. He was an extremely well-liked and respected teacher. A psychological assessment showed he had post-traumatic stress as a result of a car accident and the damage done on his family. [ 21 ] Defence counsel also refers to the Saskatchewan case of R v G.R.K. , 2014 SKQB 147 , where the accused entered a guilty plea under s. 152 of the Criminal Code . The Crown proceeded by

summary conviction and the penalties were the same as here in terms of a minimum and maximum. The offender was sentenced to a period of six months incarceration followed by 18 months of probation. It should be noted that the offender was living in the basement of the house where the young person lived. The offender was also on a conditional sentence order that had been imposed a few months prior. However the Court noted this was a single incident and there was no suggestion that the request was followed through as the young person refused to participate and the conversation ended.

The accused was 48 years old and had a fairly extensive criminal record. In this Saskatchewan case Mr. Justice Megaw reviews many cases in his analysis such as R v Porteous , 2011 ONCJ 305 , where the accused was convicted of Internet luring and sexual invitation and received a sentence of 12 months. The facts are more serious. In R v Jepson , 2004 OJ No 5521 , the Ontario Superior Court reinforces the importance of denunciation and deterrence and says that offences such as child luring allow offenders to prey on innocent children out of the reach of the public eye.

R v Dobson , 2013 ONCJ 150 and R v Snow , 2011 ONCJ 619 are other Ontario cases that involved sexual invitation by way of Internet or cell phone activity. Mr. Justice Megaw stated that a period of actual incarceration of six months was in order to be followed by 18 months probation. He noted even in the Careen decision, which is the B.C. teacher, that the Court imposed more than the mandatory minimum of 45 days. [ 22 ] The following is a

summary of the mitigating and aggravating factors that I accept in this case. The mitigating factors are as follows: - M.G.P. has no criminal record. - M.G.P. confessed when his boss asked him to investigate this incident in the course of his employment at the military base. - He was fully cooperative with the investigation and gave voluntary statements. - M.G.P. did not divert or delete information with respect to the offence, and of course he was quite capable of doing so with his skills.

Therefore, as a result of his cooperation, the investigation was not as lengthy or costly as it could have been. - M.G.P. has entered a guilty plea to the offence. - There was no intention or arrangements made to meet the young person he was conversing with. - There were no photos taken. - He is assessed in the pre-sentence report on the two risk assessments to be at a low risk to re-offend. - He has an excellent work history. - He is a community minded person, many letters were filed attesting to his good character and pleasant personality. - M.G.P. has taken steps and efforts to address his underlying issues. [ 23 ] The aggravating factors are as follows: - This is an offence in relation to children and more than one child was involved. - It involved encouraging an offence between one child and another. - The language and sexual content of the chats. - The prolonged chats.

- The rationalization offered by M.G.P. initially that he was just checking out how this technology works. - The posting of a picture of his 15 year old daughter that will be there forever. - The fact that M.G.P.’s employment capabilities and technological know how allowed him to be anonymous. - He discretely entered into this activity at work which gave him an extra layer of protection or legitimacy. [ 24 ] M.G.P. is a mature man that should have known better. However, as with these sorts of activities that are done in private, M.G.P. thought he could get away with it. After all, he was doing this at work.

He had the technological know how and he rationalized it that it was never going to turn into a face to face meeting. To me this shows that M.G.P. does not understand the nature of the problem. In addition, while M.G.P. is regarded by friends, acquaintances and co-workers as a dependable, capable, and pleasant individual, unfortunately or fortunately, he has not showed his dark side to them. And again, that is what is so troublesome about these sorts of offences. It is easy to keep them under wraps.

In my view, it is important that these types of offences are being prosecuted today because that brings them out in the open to the public eye. It says to all members of society that this type of conduct is unacceptable. It is also an indication that on a personal level, M.G.P. has deeper problems.

To his credit, he has reached out to counsellors but I see it being a long and difficult road to get to the true underlying issues and for M.G.P. to come to an understanding of how his actions impacted these victims as well as his own daughter and his family. [ 25 ] It is the responsibility of the Court to arrive at a fit and proper sentence taking into account the circumstances of the offence and the offender. These sections of the Code are designed to protect vulnerable youth. In conclusion, I find that a period of incarceration beyond the minimum 90 days is necessary in this case.

Therefore, it cannot be served on an intermittent basis. I sentence M.G.P. to a period of four months incarceration to be followed by a probation order of 12 months. Appendix A attached to this decision has the terms of the probation order. There will be the applicable surcharge which is payable forthwith and the default time can be served concurrently to the four month sentence. There will be the mandatory ancillary orders under s. 109 not to possess firearms for a period of 10 years. There will be an order under s. 491 of the Criminal Code to forfeit any weapons.

It is a primary designated offence so M.G.P. must provide a sample for DNA analysis and it is an offence that he must register under the Sex Offender Information Registry. M. Gordon, J APPENDIX A 1. Keep the peace and be of good behaviour. 2. Appear before the Court when required to do so by the Court. 3. Notify the Court or probation officer in advance of any change of name or address and promptly notify the Court or probation officer of any change in employment or occupation. 4.

Report to a supervisor at 216 - 110 Ominica Street West, Moose Jaw, Saskatchewan (306-694-3649) in person within two working days of your release from jail and after that as told to do so by the supervisor or probation officer. 5. Participate in assessment and complete programming for sexual offending and personal counselling as told to do so by the

probation officer. 6. Have no contact, directly or indirectly, with any person under the age of 16, unless you are in the company of an adult who has been approved for such purpose by your probation officer. 7. Refrain from going to a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a school ground, playground, day care centre, community centre except with prior permission of the probation officer, named family members or in the course of your employment with other approved adults. 8.

Not to obtain or continue any employment or be a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. 9. Not use a computer system for the purposes of communicating with a person under the age of 16 years. 10.

Not own, possess, access or use a computer, portable wireless communication device, smart phone, cell phone or any other similar device that is capable of accessing the Internet except as may be required for your employment, education or other purposes after you first obtain written permission from your probation officer regarding the place and circumstances. 11.

Submit to search without a warrant of your person, vehicle or residence that you own, operate, control or possess by any police officer who has reasonable grounds to suspect that you are in breach of a condition of this order regarding the use, access to, possession or control of computers or similar devices specified in this order and if computers or similar devices are found, allow a search of the computers or similar devices.