R. v. Shaw, 2018 BCPC 77

Citation: R. v. Shaw 2018 BCPC 77 Date: 20180302 File No: 44566-C-4 Registry: Prince George IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. TRAVIS ROBERT SHAW REASONS FOR SENTENCE OF THE HONOURABLE REGIONAL ADMINISTRATIVE JUDGE M. BRECKNELL BAN ON PUBLICATION Sections 486.4(2) and 486.4(3) Criminal Code Counsel for the Crown: A. Schroff and R. Garson Counsel for the Defendant: D. Jenkins Q.C. and R. Hamilton Place of Hearing: Prince George , B.C. Dates of Hearing: November 28 & 29, 2017 Date of Judgment: March 2, 2018

INTRODUCTION [ 1 ] The Defendant, Travis Robert Shaw (Mr. Shaw) was originally charged by Indictment on Information number 44566 C 4 with seven Counts alleging offences contrary to Sections 172.1 1) (a), 172.1(1) (b), 152 , 171.1(1) (a), 171.1 1)(b), 163.1 (4.1) and 163.1(4) of the Criminal Code committed for the most part against the Complainant, (the Complainant). [ 2 ] On March 10, 2017, the Crown re-elected to proceed Summarily on this Information with the consent of the Defence, and Mr.

Shaw, and he entered a guilty plea to Count 2, admitting that between April 16, 2015 and April 21, 2016, he communicated by means of telecommunication with the Complainant, a person under the age of 16 years, for the purpose of facilitating an offence under Sections 151 or 152, Subsection 160(3) or 173(2) or Sections 271, 272, 273 or 280 with respect to that person, contrary to s. 172.1(1) (

b) of the Criminal Code (the Offence). [ 3 ] Subsequent to the entry of the plea the Court ordered a Pre-sentence Report and a Psychological Risk Assessment Report for sexual violence to be prepared on Mr. Shaw to assist the Court in arriving at a just and appropriate sentence. Sentencing submissions were adjourned to November 28 and 29, 2017. [ 4 ] The Crown seeks to have Mr. Shaw incarcerated in a provincial prison for 18 months followed by a period of probation for 2 to 3 years.

In addition, the Crown seeks numerous ancillary orders. [ 5 ] The Defence seeks a sentence of 90 days to be served intermittently followed by a period of probation. The Defence made no submissions on the ancillary orders being sought by the Crown save and except where some of those orders have time limits they be for a shorter time than proposed by the Crown. [ 6 ] Crown and Defence counsel kindly provided the Court with electronic versions of their submissions and the Agreed Statement of Facts, portions of which are included in these reasons.

CHARTER APPLICATION DECISION [ 7 ] Prior to the substantive sentencing submissions Defence counsel brought an application pursuant to

Section 12 of the Canadian Charter of Rights and Freedoms (the Charter ) seeking an order that

Section 172.1(2) of the Criminal Code violated Mr. Shaw's rights and that the circumstances of this case amounted to the “rarest of cases” so as to permit the Court to impose a sentence different from the minimum mandatory provisions. [ 8 ] In the face of that application the Crown brought what was, in effect, a pre-emptive application seeking to have the Court decline to hear the Defence Charter application on the basis that given the facts in this case the sentence to be imposed upon Mr. Shaw would be greater than the 90 day minimum mandatory sentence provided for in

Section 172.1(2) and as such the Defence application would be moot in the circumstances and an unnecessary and wasteful use of the Court's resources. [ 9 ] At the end of the submissions on the point raised by the Crown, the Court exercised its discretion and declined to consider the Defence application because the ultimate result of the sentencing would not be impacted by an analysis of the constitutionality of the minimum mandatory sentencing provisions. MR. SHAW'S PERSONAL CIRCUMSTANCES [ 10 ] Considerable information concerning Mr.

Shaw's personal circumstances were contained in the Presentence Report authored by Probation Officer Christie Crothers and filed on May 23, 2017 and the Psychological Risk Assessment Report authored by Dr. David Wiebe and filed on May 2, 2017. [ 11 ] Mr. Shaw has no criminal record. He has complied completely with the strict terms of the Recognizance for the 21 months he has been on bail. [ 12 ] He is a 33-year-old Indigenous person and a member of the Tel'azt'en Nation.

His birth was the result of his then 13-year-old mother's rape. [ 13 ] He was adopted as an infant by his Caucasian parents and raised as an only child in an upper middle class home in Prince George. Mr. Shaw described his adoptive parents in very positive terms recognizing that he had a very positive childhood and a loving and supportive relationship with his parents and their extended family. [ 14 ] As a result of his upbringing he did not suffer from poverty, substance misuse, lack of employment opportunities or educational opportunities as a result of his Indigenous heritage. Mr.

Shaw expressed no interest in restorative or traditional Aboriginal Justice alternatives. [ 15 ] His relationship with his large extended biological family is limited and over the years has become strained because such contact often involved requests of money from him by his family members. [ 16 ] Despite his happy home life Mr. Shaw was the victim of severe and wide-ranging bullying throughout his high school years.

By Grade 10 he recognized that he was a gay person and that, along with being adopted and one of very few Indigenous students in his school all contributed to his regular, persistent and often violent victimization. [ 17 ] In his adult life he has a close circle of friends but likes to spend the majority of his time either alone or with the members of his extended family. [ 18 ] When he was 14 years old Mr. Shaw entered a talent competition where he performed while wearing a dress. He won that

competition and from there he developed his stage “drag queen” persona, [redacted]. According to Mr. Shaw his fame as [redacted] rapidly grew to the point that he was travelling internationally, performing over 300 shows per year and mixing with celebrities. [ 19 ] Mr.

Shaw used his fame to support his advocacy for gay rights including involvement in developing harassment policies for some British Columbia school districts, establishing a Pride Centre at the local university, funding and supporting Gay-Straight Alliances in local high schools and participating in Pride Speak at universities all over Western Canada. [ 20 ] In addition to his stage performances Mr. Shaw was employed at various times as a supervisor at nationally branded coffee emporiums. During the last three years he has been employed as a sterile processing technician at the local hospital. [ 21 ] Mr.

Shaw is currently single and has no children. He reported having had two previous long-term relationships and numerous casual sexual encounters. He has, in the past, been offered considerable sums of money to engage in sexual activity while in the character of [redacted] but declined those invitations. MR. SHAW'S MEDICAL CIRCUMSTANCES [ 22 ] In 2015 Mr. Shaw was diagnosed with a non-malignant progressing plexiform neurofibroma located at the base of his skull and extending onto the right side of his neck.

This brain tumour is slow growing and under regular monitoring by a team of chronic pain management, neurological and oncology expert physicians. [ 23 ] The brain tumour ended Mr. Shaw's performing career because of the symptoms of significant pain, sleep disturbances, facial numbness, arm dysfunction and loss of hearing and vision. He receives a variety of prescription medications for the pain and other symptoms. [ 24 ] There have been prior attempts to remove some of the brain tumour in hopes of relieving some of Mr. Shaw's symptoms, but they were only partially successful.

Alternative treatment modalities have been considered including a procedure that is available in the United States but not in Canada. Further surgery will only be attempted if the risks arising from it are outweighed by the seriousness of Mr. Shaw's condition. [ 25 ] In his present condition Mr. Shaw is at an increased risk of an arterial bleed at the base of his skull arising from the tumour which could occur spontaneously but would have an elevated risk if Mr. Shaw received any sort of head trauma. At present the brain tumour causes Mr.

Shaw significant morbidity, and has the potential for increased morbidity or even mortality. [ 26 ] Mr. Shaw's safety and medical care if incarcerated were subjects of oral evidence presented through two witnesses called by the Crown; Mr. Jeff Maduke, Deputy Warden of Operations at the Prince George Regional Correctional Centre (PGRCC), and Mr. Roger Travale, Health Services Manager at PGRCC and an employee of the Provincial Health Services Authority (PHSA). [ 27 ] Mr. Maduke's evidence can be summarized as follows:

a) all incoming prisoners are classified by a team that considers the offence, the sentence imposed and the personal circumstances which includes a medical and mental health review;

b) the medical and mental health screening is done by the medical team with PHSA, and not correctional staff, and that includes a review of the inmate’s medical files, including external medical files, if the inmate consents, and a face-to-face interview;

c) if a serious medical concern is detected the inmate is immediately placed in a special handling area which usually includes immediate isolation. The medical observation cells in the PGRCC hospital unit are single occupancy units with a private shower and monitoring both by cameras and in person observations;

d) the hospital unit also includes medical offices staffed by nurses, a doctor, a dentist, a psychiatrist and drug and alcohol counsellors. There are also correctional officers in that unit;

e) an inmate’s medical needs are usually dealt with by the doctors and nurses but if the inmate has unique or unusual medical requirements they may request to be treated by their own doctor either within PGRCC or, if appropriate, by attending the doctor’s office off-site;

f) the unit is staffed from 6:00 AM until 11:30 PM by a medical team composed of registered nurses, licensed practical nurses and itinerant doctors, psychologists and psychiatrists during the working daytime hours. In the night hours a first aid attendant is on duty;

g) if there is a medical emergency involving an inmate residing in the medical unit during staffed times the inmate will be attended to within 45 seconds by a medical team, correctional officers and a supervisor. In the night hours a medical emergency would involve the first aid attendant calling an ambulance through 911. In those circumstances response time for an ambulance is between 10 and 30 minutes;

h) medically isolated inmates have interaction with staff and medical providers, may arrange for schooling, faith related activities or core programming on an individual basis. They also have access to fresh air and recreation as well as a telephone and their own shower and may have visitors up to three times per day, for one hour each visit, seven days of the week;

i) serving an intermittent sentence in the medical observation unit may be complicated by the non-continuous attendance of the inmate which may result in the inmate being placed in a segregation cell. Safety is a top priority for the inmate regardless of where he may need to be isolated and the medical issues are still addressed promptly;

j) if more than two inmates require isolation in the medical observation units additional inmates may be placed in segregation depending on the classification of inmates requiring isolation.

[ 28 ] Mr. Travale’s evidence can be summarized as follows:

a) as the health services manager he oversees all healthcare at PGRCC in coordination with the Northern Health Authority, Forensic Psychiatric Services and other provincial health agencies. When it comes to medical issues he neither reports to or answers to anybody at PGRCC but he does work in partnership with them;

b) an inmate’s medical screening includes a full health review by a registered nurse and a psychiatric health screener. He reviews and audits that screening process and can change an inmate’s placement if he thinks it is warranted, including sending the inmate to a hospital resource;

c) during the intake process his department attempts to obtain consents from the inmate regarding their medical condition and treatment and their Pharmacare records;

d) regular medical appointments are accommodated three days per week on site. Specialist appointments are dealt with by either having the inmate transferred to the doctor’s office or by a high-quality video-based telehealth service. Between the hours of 5:30 AM to 11:00 PM the medical unit is staffed with three nurses Monday to Friday and in addition there is a mental health and addiction nurse, an admissions and discharge nurse and a drug Suboxone nurse;

e) the hospital unit at PGRCC is a four bed unit with examination rooms, a pharmacy, a dental office, nurses stations and two separate medical isolation units. PGRCC is considered a primary care facility. Any immediate medical needs are dealt with on site if necessary staffing is available or failing that, at the University Hospital of Northern British Columbia;

f) any new inmate who presents as a head injury patient is placed in an isolated situation immediately while a review is conducted involving the patient, his doctor and/or specialist and himself;

g) the medical isolation units have 24 hour monitoring by video and regular in person checks. Each unit has an emergency button and if a “code” is called every medical person available descends on that unit;

h) the longest medical observation stay by an inmate was over one year. [ 29 ] Mr. Shaw acknowledged a history of misusing alcohol which was at its peak when he was in his early 20s. After his brain tumour diagnosis he decreased his alcohol consumption but started combining it with his prescription pain medication. Mr. Shaw reports his alcohol consumption increased through some of the time covered by the offence but that he is now only a social drinker. He has no reported history of illicit drug use. He has not been treated for any mental illness.

COMPLAINANT'S CIRCUMSTANCES [ 30 ] The Complainant is almost [redacted] years old. He was [redacted] years old during the time of the offence. [ 31 ] When he was 11 years old the Complainant was diagnosed with [redacted], Alcohol Related Neurological Developmental Disorder, Anxiety, Depression, Dyslexia (reading disorder), Dysgraphia (Written Output Disorder) and suspected Obsessive Compulsive Disorder with a direction to be monitored for onset psychosis.

He has been described by the Northern Health Authority Assessment Team as “a unique and very complex child who would need constant supports in place in order for him to thrive and have a successful future.” [ 32 ] As a result of Mr. Shaw’s offending behaviour the Complainant has suffered additional trauma as described by his mother in the Victim Impact Statement. She described the following behaviours by the Complainant since Mr. Shaw's offending behaviour became known:

a) any time he has had to confront the circumstances of Mr. Shaw's offending he refuses to deal with it, sometime suffers a mental breakdown and often becomes uncontrollably violent towards family members;

b) his poor communication skills make it difficult for those trying to assist him to put in place any sort of safety plan or conduct a proper psychological assessment to address the trauma he has endured;

c) his violent outbursts have injured family members, some seriously, required frequent attendance at the family home by the Royal Canadian Mountain Police (RCMP) with the possibility that his siblings may be removed from the home, for their safety, if his violent outbursts cannot be curtailed or controlled;

d) the regular attendances by the RCMP as a result of his conduct including damaging doors, walls and other fixtures has also resulted in additional diligence and oversight by the landlord;

e) he has refused to maintain a prescription regime to assist with maintaining his cognitive and mental health;

f) he has questioned his sexuality, feeling ashamed and embarrassed. He becomes agitated when confronted with any gender related issues and has become extremely homophobic even with regard to members of his extended family. The homophobic behaviour has on several occasions escalated to violence at school involving fellow students or teachers. On one occasion he seriously injured another student who called him a derogatory name;

g) his relationship with his father and his father’s side of the family has deteriorated to the point of discontinuing altogether;

h) his relationship with his mother, which up until the time of these events was exceptional, has also extensively deteriorated to the point that he describes her as his worst enemy;

i) he has admitted to his mother that he is participating in petty thefts , illegal drug use and risky behaviours;

j) he has become very agitated at the thought of going out into public because he fears he may run into Mr. Shaw as had happened in the past. OFFENCE CIRCUMSTANCES [ 33 ] On [redacted], a community [redacted] was held for the Complainant to celebrate his [redacted]. The Complainant’s mother organized the [redacted], reaching out to the broader community through social media and the social networking internet service [redacted] to organize the [redacted] after the Complainant requested a “[redacted] with lots of people” for his [redacted].

The Complainant had previously had poorly attended [redacted] due to his difficulty in making friends and at his previous [redacted] sometimes only his family would show up (the Celebration). [ 34 ] In advance of the Celebration, the Complainant ’s mother made a [redacted] for the Complainant , and the Celebration was publicized throughout various media. In the public invitation for the Celebration, it was disclosed that the Complainant was [redacted]. Mr. Shaw was initially made aware of the Complainant ’s age when he found out it was the Complainant ’s [redacted]. [ 35 ] Mr.

Shaw attended the Celebration and gave the Complainant a small [redacted] and passes to the local swimming pool. Mr. Shaw came up to the Complainant ’s mother at the Celebration, shook her hand, gave her the [redacted] and told her he wanted the Complainant to feel really special that day. [redacted]. [ 36 ] Mr. Shaw became [redacted] with the Complainant ’s mother after the Celebration. The Complainant also had a [redacted] account, which had been set up with his mother, under the terms she could check his activity to monitor that he was using it appropriately and that he was safe. After the Celebration, Mr.

Shaw sent a [redacted] to the Complainant , referencing his attendance at the Complainant ’s [redacted] as his introduction. [ 37 ] The Complainant spoke to his mother about the request, and the Complainant ’s mother approved the Complainant adding Mr. Shaw as a [redacted] as she believed he would be a positive role model for the Complainant . As a result, the Complainant added Mr. Shaw as a [redacted]. [ 38 ] Between April 16, 2015 and April 21, 2016, Mr.

Shaw communicated with the Complainant by means of telecommunication through social media and social networking internet services, [redacted] (the Communications). The Communications included exchanges between Mr. Shaw and the Complainant through [redacted] between April 16, 2015 and April 21, 2016. [ 39 ] In addition to text messages Mr. Shaw sent images and videos of himself to the Complainant . Mr. Shaw sent approximately 145 images to the Complainant of which 14 were non-pornographic images of his face or clothed body, 17 included his partially unclothed body, and 31 were sexually-explicit nude images of Mr.

Shaw including his genitals and his anus. [ 40 ] Mr. Shaw made close to 100 requests of the Complainant to take images and naked images and videos of himself and provide them to Mr. Shaw. In response to those requests the Complainant sent 53 images to Mr. Shaw including eight that were non- pornographic, 21 including his partially unclothed body and two sexually explicit nude images exposing his penis. The latter images meet the definition of child pornography. [ 41 ] Mr. Shaw made approximately 11 suggestions that he and the Complainant meet in person and on several occasions Mr.

Shaw went to the proposed meeting location, a local swimming pool. Mr. Shaw also suggested meeting outside the Complainant ’s home. [ 42 ] On 15 occasions Mr. Shaw made sexually explicit suggestions to the Complainant including describing in detail what sexual activities he would like to do to the Complainant , what he would allow the Complainant to do to him, and querying the Complainant ’s sexual experience and interests. [ 43 ] The Communications sent by Mr. Shaw to the Complainant were for the purpose of facilitating the commission of an offence under

section 151 or 152 , 173(2) , or 271 of the Criminal Code . [ 44 ] On May 11, 2016, the Complainant ’s mother located and reviewed some of the Communications on the Complainant ’s IPad – in particular, sexually explicit written communications, photographs and videos exchanged between the Complainant and Mr. Shaw. She discovered these after seizing the IPad from the Complainant as a disciplinary measure after an argument she had with him. While the IPad was in her custody, incoming messages appeared on the screen, one of which was a request by a “Kody” to the Complainant for a “booty pic”.

When she examined the device further, she observed the Communications included a message from Mr. Shaw to the Complainant “I’m so hard right now, I want to lick your balls”. She also observed naked photographs of Mr. Shaw and photographs of the Complainant ’s naked penis. [ 45 ] At that point the Complainant ’s mother recalled an incident that had occurred a couple of months before where she had overheard the Complainant yell “Fuck you” and when she inquired as to why the Complainant was swearing, he had responded “I think Travis thinks I’m gay”.

She had requested that the Complainant show her the messages, but he had refused, and she said if the Complainant was being bothered, to delete Mr. Shaw. [ 46 ] After discovering the Communications, the Complainant ’s mother confronted the Complainant but he did not want to talk about it. The Complainant was furious with his mother for opening his messages and he, “flipped out”, called his mother rude names and told her he wished she was dead. The Complainant was so upset that his mother thought he might harm himself.

The Complainant also tried to lock her out of [redacted] so that she could not show the RCMP the Communications. [ 47 ] On May 11, 2016, Cst. Aird attended the Complainant ’s residence and spoke to the Complainant ’s mother who provided Cst. Aird with the IPad and showed him the Communications. Cst. Prior also attended on the same date and spoke to the Complainant who was unwilling to provide a statement. The Complainant ’s mother provided the IPad to Cst. Aird along with the password for both the IPad and the Complainant’s [redacted].

[ 48 ] On May 12, 2016, at 13:04 hours Cst. Stockdale obtained a limited statement from the Complainant. The Complainant was observed to be both unhappy and uncommunicative. He stated that he thought he met Mr. Shaw one time and it was approximately 2 years ago; that he communicates with Mr. Shaw over the phone and through [redacted]. [ 49 ] Between May 12 and 13, 2016, the Complainant brought up the matter a few times to his mother, as recounted by her in written follow up statements, including:

a) May 12, 2016 the Complainant said “I knew it was wrong, but ya know I just didn’t want to be the one to ruin his life”. When asked why he didn’t come to her if he knew it was wrong, he said “‘cause I felt bad because he is dying and has a brain tumour, I figured I had to be nice, and not be rude to him”;

b) May 13, 2016 he asked what the RCMP were going to do to Mr. Shaw, if he would be charged and if Mr. Shaw would go to jail. The Complainant became agitated and said “See this is why I didn’t want anyone to know, he has a brain tumor, his life is already bad”;

c) May 13, 2016 when he broached the subject with his mother querying whether she thought he liked it, expressing concern and reluctance about having to talk to the RCMP, and querying whether Mr. Shaw would know that the Complainant didn’t tell and that she went into his tablet. [ 50 ] On May 16, 2016, Cst. Aird viewed the Communications between the Complainant and Mr. Shaw on the IPad. Screen shots were taken, printed for the file and eventually made an exhibit in these proceedings. [ 51 ] On May 17, 2016, Cst.

Stockdale obtained a second statement from the Complainant , who was more forthcoming with the details of the Communications including confirming the time frame and sexually explicit nature of the exchanges. He denied meeting Mr. Shaw at any time other than his [redacted]: the Complainant said he did not really like talking to Mr. Shaw stating “it was really annoying”. [ 52 ] On May 18, 2016, the RCMP attended at Mr. Shaw’s residence and arrested him. On May 19, 2016, Mr. Shaw was released from custody on a Recognizance of Bail which was subsequently varied in part. Mr.

Shaw’s performance while on bail was described by his Bail Supervisor in very positive terms. [ 53 ] On February 27, 2017, a Technical Examination Report (the Report) was prepared by Cst. S. Chau of the “E” Division Integrated Technological Crime Unit for the limited purpose of identifying whether or not there were any other potential victims identifiable on the devices seized from Mr. Shaw. The Report concluded that no other victims were located, there were not any contacts with persons that could be identified as youth, and no child pornography was located on Mr. Shaw’s devices.

PRESENTENCE REPORT [ 54 ] The Presentence Report reviewed Mr. Shaw’s personal, educational, employment, and financial circumstances. It also referred to his behavioural and emotional status as well as his history of substance abuse. [ 55 ] In addition to those topics there were a number of other topics dealt with that must be carefully considered as part of the sentencing process including:

a) there were times when Mr. Shaw communicated with the Complainant while intoxicated but on other occasions when he communicated with the Complainant he was sober;

b) Mr. Shaw contended that the sending of sexual explicit photographs or requests were often a group of contacts without fully realizing that the Complainant was on that list. That position is in contrast to the many pages of reproduced texts that indicate one on one communication between Mr. Shaw and the Complainant on those occasions;

c) the Report author expressed concern that Mr. Shaw appears to have a lack of victim empathy or appropriate insight into the effect of his actions. When asked how the Complainant may be affected Mr. Shaw initially expressed regret for disappointing his family and subsequently opined that the Complainant’s mother was more likely to be impacted because of the necessity of dealing with the RCMP and the Court;

d) Mr. Shaw expressed that the Complainant was not traumatized or faced any long-term consequences from their interactions claiming “kids that age do and see a lot worse”. He opined that his interactions with the Complainant may have a beneficial outcome for the Complainant because although the Complainant may be confused now it might prevent him from getting into similar situations in the future. PSYCHOLOGICAL RISK ASSESSMENT REPORT [ 56 ] The Psychological Risk Assessment Report reviewed many of the same topics as the Presentence Report as it pertains to Mr. Shaw’s circumstances.

It also referred to his behavioural and emotional status as well as his history of substance abuse. [ 57 ] In addition, there were a number of other psychological topics and issues that must be carefully considered as part of the sentencing process including:

a) Mr. Shaw stated that although the bullying he endured in high school was difficult he believed that it made him a stronger and better person and enabled him to become an outspoken community activist on behalf of the LGBTQ community;

b) during the interview process Mr. Shaw consistently presented as positive and cheerful but had a tendency to be quite defensive and deny any personal problems or shortcomings making him less aware of the negative consequences of his behaviour;

c) during the time period of the Offence Mr. Shaw was having serious relationship difficulties which he addressed by drinking alcohol more regularly and heavily and in conjunction with his prescription medications. In spite of that Mr. Shaw noted that he was not “completely drunk” every time he interacted with the Complainant. Therefore, alcohol is but one of several contributing factors to his behaviour at the time;

d) Mr. Shaw maintained that the sexually explicit photographs and messages were sent to a group on social media and not specifically the Complainant despite being confronted with clear evidence to the contrary. Mr. Shaw also denied any sexual attraction to the Complainant and maintained that the only thing he knew about the Complainant’s age was that he was in high school even though he had attended the Complainant’s [redacted]. These types of statements may be self-serving or self-protecting;

e) when asked about the consequences of the Offence Mr. Shaw appeared to take some responsibility having pled guilty but when asked he out lined the consequences to himself and his family and friends rather than the Complainant. There did not appear to be any significant level of remorse or understanding of how his behaviour might have negatively affected the Complainant particularly given his young age and his own medical situation. [ 58 ] Dr. Wiebe formed the opinion that Mr. Shaw’s risk for future sexual offending as low but that he would benefit from specific treatment.

He also noted that despite the low risk for future sexual offending one area of concern was Mr. Shaw’s level of denial and minimization that might result in complacent behaviour and the failure to actively engage in managing his risks. For that reason Dr. Wiebe recommended that Mr. Shaw receive structured sex offender treatment programming as well as alcohol counselling to reduce the possibility of future offending. [ 59 ] Although Dr. Wiebe recognized that Mr.

Shaw should, in general, be restricted from having regular contact with adolescent males he did specifically recommend that such restrictions be reduced or eliminated when it comes to members of his immediate family. SUPPORT LETTERS [ 60 ] Five letters in support of Mr. Shaw were placed in evidence by Defence counsel. The authors of those letters uniformly praised Mr. Shaw for being a kind, generous, caring, loyal, industrious, thoughtful, generous and honest person. Many of the authors noted Mr.

Shaw’s accomplishments in the community in the face of great adversity in his life from childhood through to the present. [ 61 ] One of the letters expressed Mr. Shaw’s positive interest and enjoyment in being around children while two of the letters noted that Mr. Shaw struggled with and did not enjoy spending time with children. THE LAW Criminal Code [ 62 ] The following sections of the Criminal Code have application in this case: (

a) Order of prohibition 161

(1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under

section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from: (

a) attending 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 daycare centre, schoolground, playground or community centre; (a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order; (

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; (

c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or (

d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court. Duration of prohibition

(2) The prohibition may be for life or for any shorter duration that the court considers desirable and, in the case of a prohibition that is not for life, the prohibition begins on the later of: (

a) the date on which the order is made; and (

b) where the offender is sentenced to a term of imprisonment, the date on which the offender is released from imprisonment for the offence, including release on parole, mandatory supervision or statutory release. Court may vary order

(3) A court that makes an order of prohibition or, where the court is for any reason unable to act, another court of equivalent jurisdiction in the same province, may, on application of the offender or the prosecutor, require the offender to appear before it at any

time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances after the conditions were prescribed. Offence

(4) Every person who is bound by an order of prohibition and who does not comply with the order is guilty of: (

a) an indictable offence and is liable to imprisonment for a term of not more than four years; or (

b) an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than 18 months. (

b) Forfeiture after conviction 164.2

(1) On application of the Attorney General, a court that convicts a person of an offence under

section 162.1, 163.1, 172.1 or 172.2, in addition to any other punishment that it may impose, may order that anything — other than real property — be forfeited to Her Majesty and disposed of as the Attorney General directs if it is satisfied, on a balance of probabilities, that the thing (

a) was used in the commission of the offence; and (

b) is the property of: (

i) the convicted person or another person who was a party to the offence, or (ii) a person who acquired the thing from a person referred to in subparagraph (

i) under circumstances that give rise to a reasonable inference that it was transferred for the purpose of avoiding forfeiture. (

c) Luring a child 172.1

(1) Every person commits an offence who, by a means of telecommunication, communicates with (

a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1),

section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2); (

b) a person who is, or who the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under

section 151 or 152, subsection 160(3) or 173(2) or

section 271, 272, 273 or 280 with respect to that person; or (

c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under

section 281 with respect to that person. Punishment

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

a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than 14 years and to a minimum punishment of imprisonment for a term of one year; or (

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months. Presumption re age

(3) Evidence that the person referred to in paragraph (1)(a), (

b) or (

c) was represented to the accused as being under the age of eighteen years, sixteen years or fourteen years, as the case may be, is, in the absence of evidence to the contrary, proof that the accused believed that the person was under that age. No defence

(4) It is not a defence to a charge under paragraph (1)(a), (

b) or (

c) that the accused believed that the person referred to in that paragraph was at least eighteen years of age, sixteen years or fourteen years of age, as the case may be, unless the accused took reasonable steps to ascertain the age of the person. (

d) Order to Comply with the Sex Offender Information Registration Act Order 490.012

(1) When a court imposes a sentence on a person for an offence referred to in paragraph (a), (c), (c.1), (d), (d.1) or (

e) of the definition designated offence in subsection 490.011(1) or renders a verdict of not criminally responsible on account of mental disorder for such an offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act for the applicable period specified in

section 490.013. (

e) Duration of order 490.013

(2) An order made under subsection 490.012(1) or (2) (

a) ends 10 years after it was made if the offence in connection with which it was made was prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years; (

f) Order of forfeiture of property on conviction 490.1

(1) Subject to sections 490.3 to 490.41, if a person is convicted of an indictable offence under this Act or the Corruption of Foreign Public Officials Act and, on application of the Attorney General, the court is satisfied, on a balance of probabilities, that any property is offence-related property and that the offence was committed in relation to that property, the court shall: (

a) where the prosecution of the offence was commenced at the instance of the government of a province and conducted by or on behalf of that government, order that the property be forfeited to Her Majesty in right of that province and disposed of by the Attorney General or Solicitor General of that province in accordance with the law; and (

b) in any other case, order that the property be forfeited to Her Majesty in right of Canada and disposed of by the member of the Queen’s Privy Council for Canada that may be designated for the purpose of this paragraph in accordance with the law. (

g) Purpose and Principles of Sentencing Purpose 718 The fundamental purpose of sentencing is to protect society and 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 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. (

h) Objectives — offences against children 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. (

i) Fundamental principle 718.1 A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. (

j) Other sentencing principles 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.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, … (

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. (

k) Non-communication order

743.21

(1) The sentencing judge may issue an order prohibiting the offender from communicating, directly or indirectly, with any victim, witness or other person identified in the order during the custodial period of the sentence, except in accordance with any conditions specified in the order that the sentencing judge considers necessary. Failure to comply with order: …

(2) Every person who fails, without lawful excuse, the proof of which lies on that person, to comply with the order (

a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or (

b) is guilty of an offence punishable on

summary conviction and liable to imprisonment for a term not exceeding eighteen months. Case Law [ 63 ] The Crown provided an extensive casebook with regard to the sentencing ranges available in support of its position including: (

a) R. v. Athey , 2017 BCCA 350 (

b) R. v. Morrison , 2017 ONCA 582 (

c) R. v. Clarke , [2017] N.J. No. 230 (QL) (NFLDPC) (

d) R. v. Crant , 2017 ONCJ 192 (

e) R. v. Gardner , 2017 BCPC 85 (

f) R. v. Harris , 2017 ONSC 940 (

g) R. v. Dominaux , [2017] N.J. No. 16 (QL) (NFLDPC) (

h) R. v. Janho , 2016 ONSC 7099 (

i) R. v. A.H ., 2016 ONSC 6364 (

j) R. v. Hammermeister , 2016 ABCA 302 (

k) R. v. McLean , 2016 SKCA 93 (

l) R. v. Hajar , 2016 ABCA 222 (

m) R. v. Miller , 2016 SKCA 32 (

n) R. v. M.J.A.H. , 2016 ONSC 249 (

o) R. v. Rafiq , 2015 ONCA 768 (

p) R. v. Reynard , 2015 BCCA 455 (

q) R. v. Craig , 2013 BCSC 2098 , conviction appeal dismissed under R. v. Craig , 2016 BCCA 154 (

r) R. v. Paradee , 2013 ABCA 41 (

s) R. v. Lamb , 2013 BCCA 372 (

t) R. v. Ipeelee , 2012 SCC 13 (

u) R. v. Dragos , 2012 ONCA 538 (

v) R. v. Shepherdson , 2012 ABPC 51 (

w) R. v. Woodward , 2011 ONCA 610 (

x) R. v. Aimee , 2010 BCSC 1463 (

y) R. v. Solowan , 2008 SCC 62 [ 64 ] Defence counsel also provided an extensive casebook with regards to sentencing ranges available in support of their position. Some of those cases were also contained in the Crown authorities. Those which were not include: (

a) R. v. Lloyd , 2016 SCC 13 (

b) R. v. Nur , 2015 SCC 15 (

c) R. v. J.L.M. 2017 BCCA 258

(

d) R. v. Gladue, (SCC), [1999] 1 SCR 688 (

e) R. v. R.Y., 2013 BCPC 421 (

f) R. v. Schroeder, 2012 ABPC 241 (

g) R. v. Folino, (ON CA) (

h) R. v. El-Jamel, 2010 ONCA 575 (

i) R. v. Somogyi, 2011 ONSC 483 (

j) R. v. Read 2008 ONCJ 732 SUBMISSIONS Crown [65] The Crown’s submissions on sentence can be summarized as follows:

a) Mr. Shaw denies any history of significant mental health or substance use issues. Mr. Shaw denies any prior attraction tounderage males, including denying any prior consumption of child pornography or prior sexually deviant behaviour;

b) although Mr. Shaw has a serious medical condition, Dr. Olsen pointed out that a catastrophic arterial bleed could occurspontaneously and that there are no restrictions on Mr. Shaw living his daily life except for participating in activities that could causehead trauma;

c) Mr. Shaw blames his use of alcohol in conjunction with social media for his offending behaviour but does admit that while hewas “drinking a great deal during this time, he has noted that he was not “completely” drunk” every time he interacted with theComplainant. Notwithstanding his attributing alcohol to his offending behaviour Mr. Shaw never sought counseling or services to assistwith his alcohol use as he did not feel it was necessary.

d) Mr. Shaw believed the impact of the offence to include: i. consequences to himself, including a lot of problems for him that will affect travel, politics, jobs and medical treatment in theUnited States; ii. the impact on the Complainant which he did not specifically define, other than that he “may have caused the Complainant tonever come out and he feels bad about that”; iii. the impact on his family, most particularly their disappointment, and limitations on his ability to spend time with them becausethey have children; iv. the impact on his friends whom he felt he was helping by communicating with them through social media and now feels as if hehas abandoned them.

e) Mr. Shaw’s lack of understanding of the effects of his offending on the Complainant are highlighted in the Presentence Reportwhere Mr. Shaw indicated that he did not feel the Complainant would have been traumatized or affected long term by his actions and thathis actions may provide a long term beneficial outcome for the Complainant.

f) Mr. Shaw’s account of the events between himself and the Complainant are quite inconsistent with the facts, particularly hisclaim that he did not know the Complainant’s age (even though he had been to his [redacted]), that he was not specifically targeting theComplainant with sexually explicit communications but rather sending those communications to his chat group, and his denial of beingsexually attracted to the Complainant.

g) In the Psychological Risk Assessment Report Mr. Shaw was found to be at a low risk for future sexual offending, but Dr.Wiebe further concludes that Mr. Shaw would benefit from specific treatment for sexual offenders.

h) There are inconsistencies in the account provided by Mr. Shaw and the evidence, which were not fully explored in thePsychological Risk Assessment Report including: i. Mr. Shaw claimed the Complainant had initiated the contact with him when in fact the opposite is true; ii. Mr. Shaw claimed that he had found out that the Complainant was gay but had not come out to anyone, and he noted they hadlong discussions about this in which he provided support and advice. There is no evidence of any such discussion with the Complainant.

The only evidence about the Complainant’s sexual preference in the Communications is a question by Mr. Shaw whether theComplainant has a girlfriend or a boyfriend and the Complainant advising he has a girlfriend; iii. Mr. Shaw claimed his conduct was drunken stupidity and a result of him drinking alcohol more regularly and heavily but notedhe was not completely drunk every time he interacted the Complainant Dr. Wiebe noted that alcohol should be considered a contributingfactor, it is clearly not the only one; iv. The evidence contained within the Communications is inconsistent with Mr.

Shaw’s self-reporting as to his consumption ofalcohol during this time period. His most common refrain in the Communications was that he is bored. He communicated with theComplainant from work, after exercising, and while contemplating exercise. The tenor of Mr. Shaw’s communications, and the

purposeful and deliberate manner in which he communicated with the Complainant is inconsistent with his assertion that alcohol consumption played a causal role in the Offence ; v. Dr. Wiebe noted that, in anticipating future risk scenarios, that while Mr. Shaw had ample opportunity over the course of several months to meet the Complainant and engage in sexual activity with him, he did not do so. This may have only been by virtue of the Complainant being unable or reluctant to meet at the times and locations suggested by Mr. Shaw.

i) Mr. Shaw is aboriginal. A court that imposes a sentence is mandated to consider “all available sanctions other than imprisonment that are reasonable in the circumstances...for all offenders, with particular attention to the circumstances of aboriginal offenders” see

Section .718.2(

e) of the Criminal Code and Gladue (supra) and Ipeelee (supra) ;

j) The Gladue factors must be considered and given effect “to the extent possible”, but in the cases involving sexual abuse of a child under the age of 18 years where Parliament has mandated that the courts give primacy to the principles of denunciation and deterrence pursuant to

Section 718.01, these factors must be given predominant weight when considering the conduct of the offender and the offender’s moral blameworthiness, see Athey (supra).

k) The effects of internet luring on a child victim can be catastrophic, and the seriousness of the offence is readily recognized in the case law, as “presenting a high risk of causing both physical and mental harm to the potential child victims”; see Gardner , (supra).

l) Mr. Shaw’s culpability is high given the planning and premeditation that is inherent to the offence, see Clarke (supra) . The case law is comprised of two types of cases: those with actual child victims, and those with apparent child victims (usually undercover officers). Where there is an actual child victim it is significantly more harmful. In Rafiq (supra) the court noted the particular victimization that occurs in circumstances of internet predation at paragraph 44: [44] …the Internet has made it possible for abusers to get into the victim’s head and abuse remotely.

The abuser can tell the victim what to do and how to do it, and record it – in text, video, or photograph – all for the abuser’s gratification.

Thus, through manipulation and control over time by an adult abuser, the child victim becomes a participant in her own sexual abuse. [ 66 ] The primary sentencing objectives for internet luring offences are denunciation and deterrence; see Criminal Code, Sections 718.01 and s. 718.2 ; and Hammermeister (supra), Hajar (supra), Paradee (supra), Harris (supra) and Janho (supra) . [ 67 ] On August 9, 2012, Parliament imposed a statutory minimum term of imprisonment for “internet luring” offences – 1 year where the Crown proceeds by Indictment (10 year maximum), and 90 days where Crown proceeds Summarily (18 month maximum).

Prior to that date, there were no statutorily-prescribed minimum sentences for these offences. The mandatory minimum sentences remained the same until July 17, 2015, when the mandatory minimum sentence in s. 172.1(2)(b), where the Crown proceeds Summarily, was increased to 6 months jail. The maximum sentences were also increased to 14 years (by Indictment) and 2 years less a day (Summarily).

The Crown re-elected to proceed Summarily in this matter, and the date range of the offence commences before July 17, 2015, the applicable mandatory minimum sentence is 90 days jail. [ 68 ] With the enactment of mandatory minimum sentences and the statutorily-mandated direction to give primacy to denunciation and deterrence, the message from Parliament is clear, as stated in Hammermeister (supra), at paragraph 34: [34] Parliament has sent an unmistakable message that Canadian society will not tolerate exploitation of children in any manner, not least via computer communications.

Canada’s laws do not protect children and adolescents in spite of that fact; Canada’s laws protect children and adolescents precisely because they are immature and impulsive and act with diminished judgment and foresight into the future consequences of their behaviour. Parliament “has drawn lines to protect those in a certain age category”. [ 69 ] The Crown’s election necessarily affects the range of sentence available, but the maximum sentence available where the offence is prosecuted summarily is not reserved for the “worst case, worst offender”.

This was highlighted clearly in Solowan (supra), where the Supreme Court of Canada said at paragraphs 10 and 15: [10] …the “worst case, worst offender” principle no longer operates as a constraint on the imposition of maximum sentences… … [15] A fit sentence for a hybrid offence is neither a function nor a fraction of the sentence that might have been imposed had the crown elected to proceed otherwise than it did. More particularly, the sentence for a hybrid offence prosecuted summarily should not be “scaled down” from the maximum on

summary conviction simply because the defendant would likely have received less than the maximum had he or she been prosecuted by indictment. Likewise, upon indictment, the sentence should not be “scaled up” from the sentence that the accused might well have received if prosecuted by

summary conviction… [ 70 ] The Crown also set out the aggravating, mitigating and other factors in child luring cases. Those factors that can be applied in this case are:

a) Aggravating i. an actual child victim – where the conduct is “far more harmful than arranging a sexual encounter with an adult police officer believing she is a child”, see Rafiq ; ii. prolonged duration, see Harris , Gardner, Dominaux , Rafiq, Paradee; iii. volume of communications, see Dominaux ; iv. persistence of offender, see Dragos ;

v. very young victim, see Gardner , Shepherdson; vi. planned and deliberate conduct, see Gardner , Clarke , Paradee; vii. the specific targeting of a youth (as opposed to a youth responding to an ad targeting adults), see Harris ; viii. specific targeting of a vulnerable child, one who is at risk for exploitation, see Janho , Hammermeister , Hajar; ix. grooming behaviour, “routinely turning communications toward sexually explicit topics, including sexual acts the offender [wishes] to perform with [the victim], see Harris , Dragos, Woodward ; x. using “graphic sexual content” along with the grooming, see Reynard ; xi. convincing the child to make pornography and share it with the offender, see Hajar , Rafiq , Dragos; xii. attempts to meet, see Harris , xiii. masturbating or exposing genitalia to the child, see Harris , Dominaux, Dragos; xiv. psychological or emotional harm caused to the child by the offence, see Hajar , Craig , Paradee;

b) Mitigating i. lack of a criminal record, see Clarke , Dominaux , A.H.; ii. early guilty pleas, see Gardner , Hajar, Janho, Hammermeister; iii. cooperation, including confessions, see Dominaux , McLean; iv. willingness to attend sex offender treatment, see Gardner ; v. remorse, see Gardner , Hammermeister , . Hajar, Aimee; vi. mental illness or disability of the offender, see Hajar ,. Shepherdson; vii. family support, see Lamb , Aimee ; viii. lengthy period of bail and compliance with same, see Dragos ;

c) Other

a) the application of the principles in s. 718.2(e);

b) an offender’s particular personal circumstances, including “unique” constellation of circumstances that affect their moral culpability, see Crant , where the court considered the offender’s history of being sexually abused as a child and the homophobic bullying he endured as a result of being gay, and his stated intention of sparing “the young person some of the tortured history he experienced himself” “by providing some positive reinforcement and “information” about a gay identity in crafting the sentence imposed;

d) whether the offender has family or community support, see Hajar ;

e) any personal circumstances potentially impacting on incarceration, see Hajar , Miller , Paradee;

f) whether or not the offender had a child pornography collection, see Crant , and;

g) risk to re-offend, see Gardner . [ 71 ] The Crown maintains that it is apparent from a review of the case-law that establishing a definable and certain range for sentence in internet-luring cases is very difficult, as the sentencing is highly individualized and fact-specific, see Gardner . Based on a review of recent cases, the range of sentence for internet luring is 12 months to 2 years. But for Mr. Shaw’s particular circumstances, including his aboriginal ancestry, a sentence in the range of 18-24 months jail is appropriate. However, in considering these factors the appropriate sentence for Mr.

Shaw is 18 months, with 2 to 3 years of probation with the appropriate ancillary orders. [ 72 ] In arriving at what it submits is an appropriate sentence the Crown asks the Court to particularly consider the following:

a) This case involved a period of targeted offending that exceeded the duration of all of the authorities canvassed;

b) The Complainant was a young child, aged 13-14 years during the offending period, and was of significant vulnerability. Mr. Shaw was substantially older, having been between 31 and 32 years of age;

c) Mr. Shaw was aware of the Complainant’s particular vulnerabilities, having responded to the public invitation to celebrate the [redacted] and socially-vulnerable child’s [redacted];

d) Mr. Shaw targeted and systematically groomed the Complainant for just over one year, in a persistent and incessant manner, as

evidenced in the 269 page printout of the Communications obtained by the RCMP, which comprise only some of the communicationsbetween the Complainant and Mr. Shaw;

e) Mr. Shaw sent sexually explicit photographs and videos of himself. He badgered the Complainant to reciprocate, repeatedlyrequesting he send pictures, complaining to the Complainant that he never sent him any pictures, and encouraging him to send more oncethe Complainant finally did. He told the Complainant what to send. Mr. Shaw sent sexually explicit messages about what he could dosexually for, to and with the Complainant;

f) Mr. Shaw repeatedly suggested they meet, and asked where the Complainant lived. Defence [73] Defence Counsel’s submissions can be summarized as follows:

a) Mr. Shaw is a status member of the Tl’azt’en Nation. As such the Court must particularly account for the proper approach insentencing Indigenous offenders like Mr. Shaw, see J.L.M., Gladue, Ipeelee;

b) there is no requirement for the Court to find a link between an offender and an aboriginal community in order for the Gladueanalysis to apply;

c) although Mr. Shaw has been able to remain positive the Court must consider the effects of the persistent and violent bullying heendured while in high school for being gay, adopted and one of only a few Indigenous students;

d) Mr. Shaw has dedicated his adult life to advocating for gay rights, helping re-write harassment policies in three different schooldistricts in BC, established a Pride Center at UNBC, participated in funding and supporting the Gay Straight Alliance in Prince Georgehigh schools, and has spoken at every major University in Western Canada as part of a program called Pride Speak;

e) although he appears healthy Mr. Shaw has compromised health as a result of a plexiform neurofibroma (brain tumour). Thiscondition presents an increased risk for catastrophic consequences that could occur from an arterial bleed;

f) Mr. Shaw must avoid experiencing head trauma to reduce the possibility of a severe arterial bleed. Mr. Shaw is under the careof a team of experts who monitor his condition with a view to further medical or surgical intervention at some point in the future. In themeantime Mr. Shaw requires a variety of prescription medications to alleviate his pain. He has increasing difficulties with neurologicaldeficits including vision, hearing, facial numbness and arm dysfunction. His condition is causing him significant morbidity which willincrease in the future and may even result in mortality.

Where a defendant has a serious medical condition that is taken into account inthe case law, see Folino, Somogyi;

g) Mr. Shaw was misusing alcohol in combination with his prescription medications during the time of the Offence. He wasdoing so in part to alleviate some personal difficulties and to escape from that circumstance and his negative feelings. He is now only asocial drinker;

h) Dr. Wiebe was of the opinion that alcohol played a role in the Offence but now Mr. Shaw's risk for further sexual offending islow;

i) the appropriate range of sentence for child luring has been set out in several cases and seems to suggest a sentence of betweenone and three years, see Paradee (supra), Jarvis (supra), Aimee (supra), R.Y. (supra) but that approach was criticized in the recent case ofMorrison (supra);

j) Mr. Shaw shares a number of mitigating factors with the accused in Morrison (supra) including that he has an unblemishedcharacter, no previous criminal convictions and is a productive member of society. In addition to that Mr. Shaw pled guilty to theOffence early on, has a very serious medical condition and is an Indigenous person;

k) there is nothing to be accomplished for Mr. Shaw, the Complainant or the community by incarcerating Mr. Shaw for anylonger than absolutely necessary and in this case that is the minimum mandatory sentence prescribed at the time of the Offence to beserved intermittently. DISCUSSION [74] Although courts regularly rely on “ranges” with regard to sentencing, each case must be determined on its own set ofcircumstances as they pertain to the events and the offender. It is commonly accepted that sentences imposed in other cases may be oflimited assistance in determining a fit sentence.

This was discussed by the Supreme Court of Canada in R. v. M. (C.A.), (SCC), [1996] 1 S.C.R. 500, where the Court said at paragraph 92: [92] …Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and asimilar crime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should beexpected to vary to some degree across various communities and regions in this country, as the “just and appropriate” mix of acceptedsentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

Forthose reasons, consistent with the general standard of review we articulated in Shropshire, I believe that a court of appeal should onlyintervene to minimize the disparity of sentences with a sentence imposed by the trial Judge is in substantial and marked departure fromthe sentences customarily imposed for similar offenders committing similar crimes. and earlier at paragraph 81: [81] The objective of denunciation mandates that a sentence should also communicate society’s condemnation of that particular

offender’s conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender’s conduct should be punished for encroaching on our society’s basic core values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sergeant , “society, through the courts, must show its abhorrence of particular types of crime and the only way in which the courts can show this is by the sentences they pass”.

The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated.

In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code … [ 75 ] The Supreme Court of Canada revisited the role of the sentencing judge in R. v.

Nasogaluak, 2010 SCC 6 , where the court said at paragraph 43: [43] The language in ss. 718 to 718.2 of the Code is sufficiently general to ensure that sentencing judges enjoy a broad discretion to craft a sentence that is tailored to the nature of the offence and the circumstances of the offender. The determination of a “fit” sentence is, subject to some specific statutory rules, an individualized process that requires the Judge to weigh the objectives of sentencing in a manner that best reflects the circumstances of the case. (Citations deleted).

No one sentencing objective trumps the others and it falls to the sentencing Judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences.

The Judge’s discretion to decide on the particular blend of sentencing goals and the relevant aggravating or mitigating factors ensures that each case is decided on its facts, subject to the overarching guidelines and principles of the Code and the case law… [ 76 ] That concept was further addressed by the British Columbia Court of Appeal in Voong, at paragraphs 6 and 7, where the Court said: [6] Imposing a sentence for criminal conduct is the purview of judges in the trial courts.

It is an individualized process, in that a sentence must be fashioned to take into account the circumstances of the offence, the circumstances of the offender, the moral blameworthiness of the offender, the principles of sentencing, and proportionality to the offence and the offender. [7] Much has been written about the philosophical principles that underlie our present-day sentencing ideology. For centuries, philosophers debated, and continue to debate, the role of punishment and the underlying ideology behind punishment.

As a result, the law has developed a number of sentencing principles, some conflicting, some ameliorating others, such as retribution and rehabilitation, and all that must be considered by the Judge who has to determine a “fit” sentence for the offender before him or her. It is not an easy task, and not a task that should come under microscopic scrutiny of the appellate court… [ 77 ] Although the sentencing principles of denunciation and deterrence are primary considerations in internet luring cases, the Court must also consider the circumstances of this offence as well as the circumstances of both Mr.

Shaw and the Complainant. [ 78 ] In the Communications Mr. Shaw started slowly, engaging the Complainant in daily life interactions. But it is obvious from the changing tenor of the Communications over a relatively short time frame, that Mr. Shaw was intent in engaging the Complainant in far more sexually explicit dialogue, was persistent in pursuing an exchange of pornographic images and wanted to go further as demonstrated by his numerous suggestions that they meet for sexual purposes. [ 79 ] Mr. Shaw has no criminal record and he is an Indigenous person.

It is not necessary for there to be a direct link between his heritage and his upbringing in order for the principles in Gladue and Ipeelee to be considered. Such consideration is not done in a vacuum. Mr Shaw has suffered some of the detriments of being born aboriginal but he has also not been subjected to some of the common systemic deprivations experienced by Indigenous people as a result of the environment he was raised in. [ 80 ] Although not a youth Mr. Shaw is a young man and the principles of rehabilitation and making reparations must also be weighed carefully.

Rehabilitation must also include counselling and programs to assist Mr. Shaw in developing tools and skills to ameliorate the possibility of future offending. Reparations must include some benefit to the greater community since reparations directly to the Complainant are not likely to be in his best interests. [ 81 ] Mr. Shaw’s medical condition will pose some challenges for BC Corrections but, based on the evidence presented, his safety can be protected with the resources available in a medical observation unit as described by the witnesses. [ 82 ] While Dr. Wiebe’s opinion is that Mr.

Shaw’s risk of sexual re-offending is low the Crown pointed out some circumstances that existed in the interactions between Mr. Shaw and the Complainant which were not accurately addressed in the Psychological Risk Assessment Report. The most concerning circumstance was the comment that Mr. Shaw and the Complainant never met but no reference was made of the fact that it was not due to lack of trying on Mr. Shaw’s part. [ 83 ] Mr.

Shaw appears to have limited insight and only guarded acceptance concerning the seriousness of the Offence and the dramatic adverse consequences it has had on the Complainant , especially in light of the Complainant ’s own medical challenges and on the Complainant ’s family. Such adverse results must be given due consideration in crafting a sentence. [ 84 ] The aggravating factors in this case are as follows:

a) The Complainant was an actual child victim;

b) Mr. Shaw’s communications were persistent and prolonged, lasting over one year;

c) the significant volume of the Communications;

d) Mr. Shaw was persistent and relentless in his requests for pictures and communications from a reticent child which constituted

grooming;

e) Mr. Shaw specifically targeted the Complainant, whom he knew to be vulnerable;

f) Mr. Shaw’s communications were sexually graphic, including sexually explicit photos and statements about what he would like to do with and have done to him by the Complainant;

g) Mr. Shaw convinced the Complainant to make child pornography and share it with him;

h) Mr. Shaw suggested that the Complainant meet with him on many occasions, obtained the location of the Complainant’s home, and actually attended at least twice at the swimming pool where he had suggested and was expecting to meet the Complainant;

i) The Complainant has suffered significant psychological or emotional trauma and lasting harm. [ 85 ] The mitigating factors in this case are as follows:

a) Mr. Shaw does not have a criminal record;

b) he cooperated with authorities in some respects and he confessed;

c) he entered an early guilty plea;

d) he has stated a willingness to attend counselling and programming;

e) he has expressed some limited remorse;

f) he does not suffer from any mental illness;

g) he has the support of his family and friends;

h) he has been fully compliant with bail from the date of his arrest;

i) he is considered to be a low risk to reoffend. [ 86 ] Other factors that require consideration in this case, include:

a) Mr. Shaw is Indigenous and s. 718.2(

e) applies;

b) he endured racism and homophobic bullying;

c) he has a medical condition which may affect the manner in which he is managed in custody;

d) he did not have any child pornography in his possession when the RCMP executed the search warrant;

e) he lacked insight into the harm caused by him to the Complainant. [ 87 ] Having reviewed and analysed all of the circumstances of Mr. Shaw, the Complainant , and the Offence as well as the applicable purposes and principles of sentencing and the case law and submissions of counsel, the Court does not accept the Crown’s submission of 18 months of imprisonment followed by probation. Given all of the factors to be considered including Mr.

Shaw’s Indigenous status, his health issues, his social advocacy, the professional opinion that he is at low risk to re-offend, his lack of a criminal record and his performance on bail such a sentence is too harsh and not just and appropriate in the circumstances. [ 88 ] In the same vein, Defence Counsel’s submission of 90 days intermittent imprisonment is completely inadequate. Such a sentence does not properly address the necessary specific primary sentencing considerations of denunciation and deterrence required by the Criminal Code , the fact that Mr.

Shaw knew of the Complainant ’s personal difficulties and exploited them for his personal pleasure, his lack of real understanding of and remorse for the effects his actions have had on the Complainant and his family and that during the offence the Complainant was under 16 years old, and for much of the time under 14. DECISION

a) Ancillary Orders [ 89 ] In light of the Offence that Mr. Shaw has pleaded guilty to, the Court will exercise the discretion provided for in

Section 161 of the Criminal Code . Mr. Shaw’s offence against the Complainant indicates that other male youths could be endangered by his actions, particularly if he reverts to the excessive use of alcohol. [ 90 ] For a period of ten (10) years, Mr. Shaw will be prohibited from:

a) Attending a public park or public swimming area where persons under the age of 16 are present and can reasonably be expected to be present or daycare centre, school ground, playground or community centre except in the immediate presence of your either of your parents;

b) being within one (1) kilometer of any dwelling house where the Complainant or his mother, [redacted] ordinarily reside;

c) Seeking, obtaining or continuing in the employment whether or not the employment is remunerative or becoming or being a volunteer in a capacity that involves being in position of trust or authority towards persons under the age of 16 years;

d) using the Internet or other digital network to: i. access any content that violates the law; ii. access any pornography; iii. communicating or attempting to communicate with any person you know to be or who reasonably appears or represents himself or herself to be under the age of 16 years, except for immediate family members, through a social networking website, instant messaging service or chat room; and iv. subscribe to or possess or access any peer to peer or similar file sharing programs.

e) Mr. Shaw will be at liberty to apply to vary these prohibitions or seek exemptions from them five years from when the prohibition begins. [ 91 ] There will be a SOIRA Order as requested by the Crown. Given the nature of the Offence that order is required unless Mr. Shaw can convince the Court otherwise. Defence counsel did not address reasons why such an order should not be granted. [ 92 ] There will be an order in Form 52 requiring Mr. Shaw to comply with the Sex Offender Information Registry Act for a period of ten (10) years and to forthwith sign any necessary documentation required by that Act pursuant to

Section 490.013(2) (

a) of the Criminal Code . [ 93 ] Count 2 on the Information is a primary designated DNA offence. Pursuant to

Section 487.051(1) of the Criminal Code , there will be an order in Form 5.03 authorizing the taking of a number of samples of bodily substances by any Peace Officer for the Province of British Columbia that is reasonably required for the purpose of forensic DNA analysis and registration in the National DNA Databank from Mr. Shaw by March 31, 2018. [ 94 ] There will be an order for forfeiture and destruction pursuant to Sections 164.2(1) and 490.1(1) with regard to Mr. Shaw’s Apple iPhone 5s A1533 and Apple iPad A1458 seized by and in the possession of the RCMP.

b) Sentence [ 95 ] Mr. Shaw, you are sentenced to fourteen (14) months of imprisonment in a provincial prison followed by probation. [ 96 ] The Ministry of the Solicitor General, BC Corrections Branch is directed by the Court to forthwith consult with Mr. Shaw’s treating physicians and medical specialists to ensure that his unique medical and health circumstances are recognized, documented and immediately acted upon such that he receives the appropriate medical care during his incarceration. [ 97 ] The Court recommends that if Mr.

Shaw applies to do so he serve his sentence at the Ford Mountain Correctional Centre so that he may receive structured sex offender treatment and programming available at that institution. [ 98 ] Pursuant to

section 743.21 of the Criminal Code Mr. Shaw is prohibited from communicating directly or indirectly with the Complainant, his mother [redacted], his brother, [redacted], his brother [redacted], and his grandmother, [redacted] while incarcerated. [ 99 ] Mr. Shaw, your probation will be for 36 months. That length of time is necessary to ensure that you have full opportunity to participate in and complete any necessary assessments, counselling and programs. [ 100 ] The Probation Order terms will be: a) 2001 – You shall keep the peace and be of good behaviour.

You must appear before the court when required to do so by the court.

You must notify the court or the probation officer two days in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation b) 2002 – You shall have no contact or communication, directly or indirectly, with the Complainant, his mother [redacted], his brother, [omitted for publication], his brother [redacted], and his grandmother, [redacted]; c) 2005 – You shall not attend at, or be within one (1) kilometre of any place which you know to be the residence, school or workplace of the Complainant or his mother, brothers or grandmother except while on a highway in a moving motor vehicle in transit to somewhere else; d) 2104 – You must report in person to a Probation Officer at the probation office closest to your place of release from custody within two business days after your release unless you have obtained, prior to your release, written permission from the Probation Officer to report elsewhere or within a different timeframe.

After that you must report as directed by the Probation Officer; e) 2203 – You shall reside at a residence approved in advance by the Probation Officer, and you shall not change your residence at any time without first obtaining the written consent of the Probation Officer; f) 2206 – You shall remain in the Province of British Columbia unless you have first obtained written consent from the Probation Officer to go elsewhere; g) 2401 - You must not possess or consume alcohol, drugs or any other intoxicating substance except in accordance with a medical prescription; h) 2403 – You must not enter any liquor store, beer and wine store, bar, pub, lounge, nightclub, beer garden or any other business from which minors are prohibited at any time by the terms of a liquor licence;

i) 2304 – You must have no contact or communication directly or indirectly with, nor be alone in the presence of, any person you know to be or who reasonably appears to be under

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