R v Dew, 2023 MBPC 42

CITATION: R v Dew , 2023 MBPC 42 THE PROVINCIAL COURT OF MANITOBA Stonewall Centre BETWEEN His Majesty the King ) ) D. Carlson and S. Harland for the Crown ) - and - ) ) ) Douglas Dew ) ) A. Hodge for the Accused Accused ) ) Judgment delivered: ) August 21, 2023 Notice of Restriction on Publication In accordance with s. 486.4(1) of the Criminal Code , there will be an order directing that any information that could identify the complainant shall not be published in any document or broadcast or transmitted in any way. C.A. DEVINE, P.J. INTRODUCTION [ 1 ] I found Mr.

Dew guilty after trial to the offence of luring, in R v Dew , 2022 MBPC 26 . Mr. Dew pleaded guilty to violating the conditions of his undertaking to police immediately after he was arrested and the following day. The Crown proceeded by way of indictment on the luring offence, which means there is a mandatory minimum sentence (MMS) of one year in jail. The Crown is seeking a sentence well above the mandatory minimum, three years.

The defence is seeking a jail sentence to be served in the community, that is, a one-year Conditional Sentence Order (CSO) and two years of supervised probation. [ 2 ] The CSO is barred because of the existence of the MMS. The accused filed a Notice of Constitutional Question to have the MMS not apply in his case, because it is unconstitutional, violating Charter

section 12. [ 3 ] After hearing argument by counsel on what a fit and appropriate sentence would be, I determined that it would either be below the MMS of one year, or a Conditional Sentence Order (CSO) should be available. A second stage argument therefore took place to address the constitutionality of the MMS. [ 4 ] The Supreme Court of Canada released the decisions of R v Hills , 2023 SCC 2 and the companion case R v Hilbach , 2023 SCC 3 , in January 2023, settling and amplifying the framework for determining Charter

section 12 claims. [ 5 ] The facts of this case are at the far end of the spectrum for luring offences, and take it well outside the range of sentencing decisions for child luring. Although a jail sentence is appropriate in this case, it is unnecessary for it to be served in a correctional setting. I have found that the MMS for an indictable child luring offence is unconstitutional and cannot be applied to Mr. Dew’s case. A jail sentence to be served in the form of a CSO, to be followed by a period of supervised probation, will be imposed. [ 6 ] The MMS for child luring has been struck down as violating

section 12 and therefore unconstitutional in three of the four cases where constitutional challenges have been argued in provincial courts of appeal in Canada. In R v Hood, 2018 NSCA 18 and R c Bertrand Marchand , 2021 QCCA 1285 , the Nova Scotia and Québec Courts of Appeal struck down the indictable MMS of one year. In Procureur général du Québec c V(H) , 2022 QCCA 16 , the Québec Court of Appeal struck down the

summary MMS of six months. [ 7 ] In R v Cowell , 2019 ONCA 972 , the Ontario Court of Appeal was unanimous that a sentence of at least one year was appropriate for the accused, and the majority upheld the constitutionality of the mandatory minimum, but in a strong dissent Justice Trotter found the

section unconstitutional because it could be applied in reasonably foreseeable circumstances where the imposition of the MMS would be grossly disproportionate. He also found that the disparity of sentence between indictable or

summary luring proceedings would make the MMS grossly disproportionate in some circumstances. The majority decision, written by Justice Benotto, rejected his arguments on the basis that the Supreme Court had narrowed the scope of the offence in R v Morrison , 2019 SCC 15 , that gross proportionality is a high bar, that the hypotheticals had not been fully argued in court, and rejecting the argument that the hybrid nature of the offence makes the sentence grossly disproportionate when the Crown proceeds by way of indictment (parting ways with

Justice Karakatsanis in Morrison). [8] The Supreme Court of Canada granted leave to hear V(

H) on August 18, 2022. In that case, the 52-year-old offender who wasthe victim’s uncle and godfather, started sending her sexual text messages, offering her a job and approached her when she was alone andtouched her breasts under her clothing. He pleaded guilty, did not pose a risk to reoffend, and had attempted suicide. The trial judgefound the MMS of six months unconstitutional as applied to the offender and imposed a suspended sentence. The

summary convictionappeal judge relied on reasonable hypotheticals as set out in Hood and R v Randall, 2018 ONCJ 470, to strike down the MMS. Althoughshe believed a sentence of four months would be fit and appropriate, given that the offender had already served some of his sentence, sheimposed a 90-day intermittent sentence. The Quebec Court of Appeal upheld her decision, noting that there was little support for theCrown’s argument for a sentence in the 12- to 24-month range. [9] There has not been a decision dealing with this issue in the superior courts in Manitoba. FACTS OF THE OFFENCE [10] Mr.

Dew is a heavy-duty mechanic and was working for the victim’s father, who had been a friend for over 20 years. Thevictim is a 15-year-old boy. Mr. Dew and the boy worked together doing landscaping and other work for the boy’s father. Mr. Dew wasan alcoholic and his bi-sexuality was closeted, given the homophobia in the small community and Mr. Dew’s own discomfort with hissexuality. [11] Over a two-week period, Mr. Dew texted the boy late at night when he was drunk, essentially grooming him to win his trustand affections. The full texts are included in the trial decision. The texts read like flirting. Mr.

Dew compliments the boy as a hardworker who makes him feel good to work with. He asks the boy’s opinion about cutting his hair. He entrusts the boy with secrets. Nosexually explicit language was used, but the inference is clear that Mr. Dew was luring him to facilitate the offence of invitation to sexualtouching, in this case, to invite the boy to masturbate himself. [12] The texts abruptly stopped and Mr. Dew was arrested for luring on August 28, 2020.

The police released him by way of anundertaking, one of the conditions of which was to not attend the home of the victim and his family, and one of the conditions was not tohave contact with young people under the age of 18. Mr. Dew was shocked and alarmed after the arrest and drove directly to his friend’shome to find out why he had been arrested. When Mr. Dew drove his vehicle into their yard, the family called the police. Mr. Dew wasviolating the release order condition that he not attend their home. The next evening, Mr. Dew was at a barbecue and was intoxicatedand complaining about his plight.

During the course of the barbecue one of the people he spoke with was the host’s 17-year-old son. Again, Mr. Dew was violating a condition of his release by the police, which prohibited him from communicating with people under theage of 18 “except in unavoidable public situations”. ISSUE [13] The issue involved in this case is whether the one-year MMS for indictable child luring in

section 172.1(2)(

a) isunconstitutional under

section 12 of the Charter. To find a violation of

section 12 of the Charter, it must be shown that the mandatoryminimum, applied to Mr. Dew or to some reasonable hypothetical offender, would be grossly disproportionate and outrage the standardsof decency in Canada and Manitoba.

SECTION 12 OF THE CHARTER [14] Although the defence initially challenged the MMS pursuant to Charter

section 7 as well, he withdrew that aspect of thechallenge, given the Supreme Court’s reiteration in Hills that

section 12 is the relevant

section for challenges to sentences. [15] The Crown is not advancing any arguments attempting to uphold the MMS under

section 1 of the Charter if I find that it isunconstitutional. [16] The test for determining whether a sentence violates

section 12 was recently confirmed and amplified by the Supreme Court ofCanada in R v Hills, 2023 SCC 2. There are two stages in a challenge to a MMS. At stage one, it must be determined what a fit andproportional sentence is. At stage two, it must be determined if the MMS is grossly disproportionate. [17] Although there is considerable discussion about MMSs in Morrison, the Supreme Court of Canada majority found a violationof

section 11(

d) of the Charter with respect to the luring provision’s presumption of the accused’s belief in the representation of thevictim’s age. The Supreme Court found that both the trial court and the Ontario Court of Appeal had erred in their understanding that anaccused could be convicted on the basis of mere negligence. The case was remitted for a new trial.

The Supreme Court of Canadadeclined to decide the constitutional challenge to the MMS, because the parties had not been in a position to argue it, given that theywere operating on an incorrect understanding of the mens rea of the offence. [18] Punishment or treatment is cruel and unusual when it is grossly disproportionate to what would be appropriate in thecircumstances and would outrage standards of decency. A sentence must be more than excessive in length to violate

section 12. Section12 is concerned with the effects of punishment and the reasons for the punishment. The effects are balanced against the particularcircumstances of the offence and the offender, and the purpose being sought by imposing the impugned sentence (see R v Smith, (SCC), [1987] 1 SCR 1045). [19] The Supreme Court determined in Smith, the first case where it struck down a mandatory minimum, that

section 12 governs the“quality of the punishment” and “is concerned with the effect that the punishment may have on the person on whom it is imposed” (atpara 53; emphasis added). [20] In determining whether a MMS is grossly disproportionate for a particular offender, the court is not concerned with theobjective of general deterrence at that stage of the analysis:

Section 12 will only be infringed where the sentence is so unfit having regard to the offence and the offender as to be grosslydisproportionate. In assessing whether a sentence is grossly disproportionate, the court must first consider the gravity of the offence, the personalcharacteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would havebeen appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender.

The otherpurposes which may be pursued by the imposition of punishment, in particular the deterrence of other potential offenders, are thus notrelevant at this stage of the inquiry.

This does not mean that the judge or the legislator can no longer consider general deterrence or otherpenological purposes that go beyond the particular offender in determining a sentence, but only that the resulting sentence must not begrossly disproportionate to what the offender deserves. (Smith, at paras 54-55; emphasis added.) [21] In the recent case of R v Snowbird, unreported ((24 February 2023) Thompson, CR19-15-00947, (ManKB)), Justice Bondfound the one-year MMS for making child pornography grossly disproportionate and in violation of

section 12. She imposed a four-month CSO with probation to follow. Justice Bond’s decision carefully follows the framework clarified and amplified in Hills. I adopther reasoning. STAGE ONE: DETERMINING A FIT AND PROPORTIONAL SENTENCE IN THIS CASE [22] The fundamental purpose of sentencing is to protect society and to contribute respect for the law and the maintenance of a just,peaceful and safe society. This is accomplished by imposing just sanctions that have one or more objectives.

Those objectives includedenouncing unlawful conduct and the harm done to victims, deterring the offender and others from committing offences, separatingoffenders from society where necessary, rehabilitation, reparations for harm done to victims or the community, and promoting a sense ofresponsibility in offenders and acknowledgement of the harm done to victims or the community. [23] Overarching those objectives is the fundamental principle of sentencing, proportionality.

The sentence imposed must beproportional to the gravity of the offence and the degree of responsibility the offender had when they committed the offence. [24] The Supreme Court held in R v Nasogaluak, 2010 SCC 6, that no one sentencing objective trumps the others, and thatsentencing judges must determine which objective or objectives should have the greatest weight: The determination of a "fit" sentence is, subject to some specific statutory rules, an individualized process that requires the judge toweigh the objectives of sentencing in a manner that best reflects the circumstances of the case (R. v.

L. (T.P.), (SCC),[1987] 2 S.C.R. 309 (S.C.C.); M. (C.A.); R. v. Hamilton (2004), (ON CA), 72 O.R. (3d) 1 (Ont. C.A.)). No onesentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatestweight, given the particulars of the case. (At para 43) [25]

Section 718.01 of the Criminal Code, which was enacted in 2005, requires that when the court is sentencing an offence thatinvolves the abuse of a child, primary consideration must be given to the objectives of denunciation and deterrence. Of course, that doesnot mean that other sentencing principles are disregarded. In R v Friesen, 2020 SCC 9, the Supreme Court of Canada characterizedsection 718.01 as part of a significant shift to “re-set the approach of the criminal justice system to offences against children” (at para102, citing Saunders J.A. in R v DRW, 2012 BCCA 454 at para 32).

The Court characterized the amendment as follows: However, while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion toaccord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fitsentence, in accordance with the overall principle of proportionality (see R. c. Bergeron, 2013 QCCA 7 (C.A.

Que.), at para. 37). (At para 104; emphasis added.) [26] The relevant sentencing objectives in this case are denunciation, deterrence, rehabilitation and promoting a sense ofresponsibility in the offender and acknowledgement of the harm done to the victim in this case. Proportionality: The Seriousness of the Offence [27] Child luring is a serious offence with harmful consequences to children and to society.

While I agree with the Crown thatconsideration of the nature of the offence in this case involves assessing it within the wider discussion about the seriousness of childsexual abuse and the law’s evolution to a better appreciation and understanding of the effects of child sexual abuse and escalatingsentences for sexual offences against children, I would distinguish the facts of this particular form of luring from the typical luringoffences which are online. [28] The offence of child luring covers a broad range of conduct. Mr. Dew’s conduct was at the lower end of the range.

The typeof luring the accused was convicted of in this case was not like the widespread phenomenon of online child luring which has led tounprecedented access to millions of children globally by sexual predators discussed in Friesen at paragraph 45 involving “newtechnologies”, “social media”, “the internet” and “online child luring”. [29] This is not a case where the offender was a sexual predator on the internet looking for children to lure into some type of sexualactivity.

It was not an example, as noted by Justice Moldaver for the seven-person majority in Morrison at paragraph 2: “[N]ew anddistressing phenomenon of predators lurking in cyberspace, cloaked in anonymity, using online communication as a tool for meeting andgrooming children with a view to sexually exploiting them.”

[ 30 ] In this case, the offender knew the victim, they worked together and the accused texted the victim when he was drunk, late at night. A similar distinction is to that found by the Quebec Court of Appeal in Marchand , where the offender contacted the victim on Facebook after he had already begun sexually abusing her, in order to set up subsequent meetings. Thus, Justice Levesque in his reasons stated that “[t]he distinct social interest that luring aims to protect in nearly every situation is not present here” (English translation at para 14). [ 31 ] The type of language used by Mr.

Dew was nuanced and not explicit, so in that way was the type of “sneaky” language more likely to lure a young person. But the offence otherwise was a far cry from the type of predatory and subterranean conduct

section 172.1(1) was designed to prohibit. [ 32 ] It is important not to overstate or overgeneralize the offence of luring. [ 33 ] There was no evidence of planning. The behaviour was late at night when the offender was intoxicated and his inhibitions were lowered. [ 34 ] The specific impact to the victim is largely unknown. The Victim Impact Statement written by his mother does not discuss the impact on him, only that the family has installed security cameras on their property. Proportionality: The Circumstances and Moral Culpability of the Offender [ 35 ] Mr.

Dew was 44 years of age at the time of the offence and is now 47 years old. He has one adult brother living in Australia. He lives with and looks after his elderly mother, who has cancer and whose mobility is declining and who appears to be developing dementia. He cares for her essentially around the clock. [ 36 ] He grew up in a prosocial family. He had an unremarkable childhood until age 14, when his father, a member of the Royal Canadian Mounted Police, died of cancer. This had a major impact on him and his family. He started drinking. His father and brother both abused alcohol as well. Mr.

Dew has a long history of alcohol abuse, which appears to finally be under control. [ 37 ] He was a good student, but dropped out of school at the age of 17 after Grade 11, to move to Ottawa with his girlfriend at the time. [ 38 ] He has a full and impressive work history, mainly with experience as a heavy duty mechanic throughout a wide area of the province. He has also worked for three years with a local company installing screen piles for decks and structures, and prior to that owned his own auto mechanic shop for five years.

Additionally, he has worked in and is extremely knowledgeable about several construction trades, such as dry walling, painting, electrical wiring, plumbing, heating and landscaping. He has been foreman on many crews. His customers have returned to him numerous times over the years. In short, he has a very good reputation for his work. [ 39 ] Mr. Dew identifies as bi-sexual, which has been largely closeted in the small community in which he lives. He fears ridicule and homophobia.

Counsel explained that these text communications with the victim were more about him being comfortable talking to the complainant, as opposed to a sexual attraction to underage people. He has been currently involved in a relationship with a woman for the past year, who has accompanied him on several court appearances. [ 40 ] His male companion at the time the pre-sentence report (PSR) was being prepared, told the PSR writer that Mr. Dew was “happy go lucky and hard to anger”, “docile”, “reasonable” and “has a cooler head” (PSR, page 7). [ 41 ] A cousin-in-law provided very positive information about Mr.

Dew to the PSR writer: [H]e is a sweetheart, he would never hurt anybody. He just went too far down the rabbit hole with drinking. I feel he was depressed and lonely and he needs help like counselling. I do not think jail is the right place for him. He wouldn’t hurt anyone in a million years. (PSR, page 8) [ 42 ] Initially Mr. Dew was drinking after the charges and became more and more distraught. He then underwent an alcohol assessment at the Addictions Foundation of Manitoba and attended a 28-day residential treatment program. He has been successful in addressing his drinking problem.

Counsel noted that both the Supreme Court of Canada and the Manitoba Court of Appeal have characterized alcoholism as a mental health issue or disease. ( Canada (Attorney General) v PHS Community Services Society , 2011 SCC 44 ; R v Parker , 2023 MBCA 51 ). Certainly, this disease impacted his moral culpability in committing this offence. He was intoxicated when he sent these texts, even noting that on several occasions in the texts, making reference to him over-drinking and blacking out. [ 43 ] Mr. Dew had a happy and full social life before this offence.

He told the PSR writer that as a consequence of this offence: “Now I have to wear a mask or my hood up to go into town” (PSR, page 7). He has lost friendships. He lost work. He has been isolated to his home. He has attempted suicide twice as a consequence of this offence. At one point the RCMP had a BOLO (be on the lookout for) out for his well-being, being concerned about his suicidality. He has suffered from depression in the past. [ 44 ] Mr. Dew has a conviction for impaired driving from 2017, but no other convictions. Other Relevant Sentencing Principles,

section 718.2 Aggravating and mitigating factors (section 718.2(a)) [ 45 ] The Supreme Court of Canada in Friesen offered a checklist of significant factors to be considered when sentencing child sexual abuse offences, which are generally aggravating factors. Likelihood to reoffend

[ 46 ] The Supreme Court stated that likelihood to reoffend was a significant factor to consider in determining a fit sentence for offenders convicted of child sexual offences. [ 47 ] Mr. Dew’s likelihood to reoffend was assessed by Probation Services as “average”, based on his score of “2” on the Static-99R tool (PSR, page 10). The sexual recidivism rate for offenders scoring “2” is between 5 and 7 percent. The PSR also noted that the tool does not measure all relevant risk factors and a subject’s risk may be higher or lower based on factors not included in the tool.

Some of the risk factors included in the Static-99 are prior sexual offences, a history of non-sexual violence, the number of previous sentencing dates, age, having male victims, never living with a lover for two continuous years, a history of non-contact sexual offences, having unrelated victims and having stranger victims. I note that Mr. Dew has no previous offences committed against persons, no violent offences, the only conviction is for driving while impaired, as a consequence of his alcoholism.

Given his age, his otherwise prosocial antecedents, his commitment to his mother, his current positive relationship, recidivism is not a significant concern in this case. Abuse of a position of trust or authority [ 48 ] I do find that there was a position of trust in this case (see Friesen , para 125 ). He was a long-time family friend who the family trusted to work with their son. The victim respected him and looked up to him. He was a mentor to the boy. Duration and frequency [ 49 ] The total duration of the offending behaviour was approximately two weeks. But on the nights and early mornings where Mr.

Dew was texting BD, it was frequent. This is somewhat aggravating. Age of the victim [ 50 ] In this case, the age of the victim was 15. He was not a young child, unfamiliar with the idea of masturbation. He admitted to masturbating and discussed it, albeit somewhat reluctantly, in the text messages. I distinguish this from cases where the offender is introducing sexual language, concepts and acts totally unfamiliar with the victims. At the same time, I recognize that 15 is an age where a young person’s sexuality is developing.

In that way, it is a vulnerable time for young people to be lured or interfered with in a sexual manner by adults. In Friesen , the Supreme Court stated (at para 136): At the same time, courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent.

Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, even though adolescents may be an age group that is disproportionately victimized by sexual violence (Benedet, at pp. 302, 304 and 314; L. (D.O.) , at pp. 464-65, per L’Heureux-Dubé J.). Degree of physical interference [ 51 ] There was no actual physical contact in this case, no plan to meet, nor any evidence of any planned direct contact. Nor were any intrusive sexual acts discussed or proposed by the accused, such as fellatio or anal intercourse (see Cowell at para 54 ).

Victim participation [ 52 ] The Supreme Court in Friesen admonished courts that have viewed victim participation as a mitigating factor. It is not, nor did the defence argue that in this case. Where victim participation is as a result of grooming and a trust relationship, it is an aggravating factor. In this case, the young person’s participation in the texts was as a result of the status of the offender as a long-time family friend, employee, and older, wiser co-worker who also mentored him in engine mechanics.

Often when the offender’s text would be suggestive, the victim would not respond, or there would be a time gap before he would respond, which I infer demonstrates that the victim was uncomfortable and reluctant to continue texting about masturbation. [ 53 ] The words of Friesen are apropos this case: “Adolescence can be a confusing and challenging time for young people as they grow and mature, navigate friendships and peer groups, and discover their sexuality” (at para 153). [ 54 ] This is a time when humans must be given the space, privacy, respect and autonomy to explore their sexuality on their own terms, and not be interfered with in any way by adults seeking their own sexual satisfaction. [ 55 ] None of the factors that are considered aggravating are present in this case. [ 56 ] There were no photographs or pornographic materials sent to the young person, which is an aggravating factor found in other cases.

Mitigating Factors [ 57 ] There are several mitigating factors in Mr. Dew’s case. [ 58 ] The mitigation of a guilty plea is not present in this case, but Mr. Dew did not dispute his behaviour. There was an agreed statement of facts and no witnesses had to testify, including, importantly, the victim. The only issue at trial was whether the behaviour in which he engaged constituted the offence of child luring in

section 172.1(1)(b), so it can be distinguished from cases involving lengthy trials or trials where child victims have to endure reliving embarrassing or painful matters and undergo cross-examination. He has otherwise been a hardworking tradesman in his community, with apparently a robust social circle and very close and caring relationship with his mother. [ 59 ] He expressed remorse to the PSR writer and to the court at the sentencing hearing.

[ 60 ] There have been several consequences to Mr. Dew, even before this sentence is imposed. [ 61 ] He has been convicted of a sexual offence involving a person under the age of 16. He will carry that for his lifetime. [ 62 ] As a consequence, he has been harassed for the past three years. He has lost friendships. [ 63 ] His mental health has taken a toll. He told the PSR writer that he does not want to leave bed some days. He has had suicidal feelings since being charged and has attempted suicide twice.

He has lost work, lost friendships and endures the stigma of this conviction in a small community. [ 64 ] He has shown some insight into his behaviour and has stopped drinking, including going so far as to taking a 28-day treatment program. [ 65 ] He lives with and takes care of his mother, whose mobility is declining as is her mentation – there is concern she is developing dementia. [ 66 ] He has been on strict bail conditions for the past three years, which he has abided by since two days after he was arrested. Parity (section 718.2(b)) [ 67 ] Subsection 718.2(2) (

b) of the Criminal Code requires that: A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. [ 68 ] I agree with the defence that it is difficult to apply the principle of parity in this case because the circumstances are unique. [ 69 ] The Crown filed the Ontario Court of Appeal case of R v Woodward , 2011 ONCA 610 , in support of its position that the sentencing range for child luring offences is three to five years. It is not clear what the range is. The Supreme Court of Canada has not adopted a range.

At least two appellate courts have imposed sentences of between one and two years for child luring: R v Lemay , 2020 ABCA 365 and R v Clarke , 2021 NLCA 8 . In the Supreme Court of Canada case of Morrison , Justice Karakatsanis stated that the appropriate range for most child luring cases proceeded by indictment would be 12 to 24 months. She noted that this was consistent with other Ontario Court of Appeal cases. Clearly, Woodward was seen as an outlier (see Morrison at para 177 ).

Woodward involved extremely aggravating features not present in this case: the 42-year-old accused, posing as an 18- to 20-year-old, sent hundreds of texts to a 12-year-old girl, promising her millions of dollars to have sex with him. Actual sexual activity occurred between them, including sexual intercourse. [ 70 ] The Crown filed the recent case of R v Sinclair , 2022 MBCA 65 , in support of the three- to five-year range.

Justice Steel referred to the fact that the sentencing judge in that case had identified a range of one to two years for luring, “[h]owever, years ago, in Woodward , the Ontario Court of Appeal identified a range of three to five years for the offence of luring” (at para 62). Unfortunately, the other Ontario appellate decisions and Justice Karakatsanis’ judgement in Morrison did not form part of that discussion. I am not fully convinced that the Manitoba Court of Appeal has therefore set a range.

I also note that the case involved multiple offences and far more egregious facts than the case at bar and the total sentence was eight years. Over a five-year period the accused lured 12 girls on the internet to disrobe and perform sex acts on Skype calls with him, which he surreptitiously filmed and saved in his computer, thereby making 112 child pornography images and 52 videos. He also extorted a 17-year-old to provide him additional nude images or he would send the images he had of her to her family and friends.

At the time, the accused was on probation for sexual assault of his 11/12-year-old foster sister. [ 71 ] In support of the same argument, the Crown also referred to a trial level decision, R v Sinclair , 2022 MBPC 40 (unrelated to the above appellate decision of the same name), where a sentence of three years was imposed, but again, that case involved aggravating features not present in this case. It is completely distinguishable from the case at bar. The victim was between the ages of 16 and 17 years and was a vulnerable Indigenous girl in the care of child protection services.

She had been evaluated as being at risk for sexual exploitation because of her history of trauma, substance abuse and other circumstances. She was often absent from her placement. In those circumstances, the 23-year-old accused had a “relationship” with her. She was often at his residence, intoxicated on drugs and alcohol, and he exerted control and influence over her. There was no evidence of actual sexual activity occurring between them, although ACJ Lord inferred it from the nature of the communications between them.

He had a long criminal record, including a previous conviction for sexual assault for which he received a sentence of two years less a day. He was considered a very high risk to reoffend in general and an above-average risk to reoffend sexually. The offender challenged the mandatory minimum, but ACJ Lord determined that the appropriate sentence exceeded the mandatory minimum, consequently the constitutional issue was moot and did not have to be decided. He was sentenced to three years. [ 72 ] There have been other cases decided in this court, not filed by the Crown.

R v Hanakowski , unreported ((26 May 2022), Winnipeg, 012-97813, (Man.PC)), R v Gerbrandt , unreported ((18 October 2021), Winnipeg, 012-98376, (Man.PC)) and R v Smith , unreported ((6 December 2021), Winnipeg, 012-99390, (Man.PC)), all involving offenders luring children on the internet; they were apprehended by police in a sting operation. That fact alone is distinguishable from this case, but there were other aggravating circumstances of those offences not present in this case. The offenders not only lured girls online, but made sexually explicit material available to them.

They sent explicit sexual images of themselves or adult male genitals, in Gerbrandt’s case, involving a sexual act, and in Smith’s case, involving sexual positions, and they all engaged in explicit sexual conversations. The images sent by Smith to the purported 14-year-old girl were extremely disturbing, involving anal sex, analingus and fellatio while the female was being held upside down. The offenders also made arrangements to meet the victims and showed up where they were arrested. Hanakowksi travelled to Winnipeg and was arrested at the prearranged meeting place.

Gerbrandt showed up at the meeting place with lubricant for the purpose of engaging in anal sex, which he had discussed in the luring discussions. Smith also had an extensive child pornography collection, some images involving degradation, and all involving prepubescent girls. Hanakowski and Gerbrandt were sentenced to two years less a day and Smith was sentenced to 21 months on the child luring and 15 months consecutive on the possession of child pornography.

A FIT AND APPROPRIATE SENTENCE [73] Although there are no superior court cases in Manitoba that have considered a challenge to the MMS for this offence, there isno question that a sentence of jail is required, absent exceptional circumstances. The primary sentencing objectives in this case, becausethe offence involved a person under the age of 16, are denunciation and deterrence.

A jail sentence is necessary to send the message thatluring a child via text for the purpose of facilitating a sexual offence violates all norms of Canadian society and undermines the veryfabric of our society because it harms our children. [74] A jail sentence can be served outside an actual correctional facility however. [75] The Supreme Court of Canada in R v Proulx, 2000 SCC 5 , [2000] 1 SCR 61, held that a CSO with punitiveconditions, could provide sufficient deterrence and send a message of denunciation. [76] The Nova Scotia Court of Appeal also came to the conclusion that a CSO was a fit and appropriate sentence for a luringoffence in Hood.

The court observed that if Parliament wanted to make CSOs unavailable for luring and other child sexual offences, itwould have done so. The offending behaviour was far more serious than in the case before me. A teacher was convicted of sexualoffences against two former students: two counts of luring (for the purpose of sexual exploitation), invitation to sexual touching (section153), and touching for a sexual purpose (section 151). The accused suffered from serious mental health issues, bipolar disorder. [77] The test for whether a CSO is available is two-part.

First, I must be satisfied that neither a penitentiary sentence nor aprobationary sentence alone would be fit and appropriate. Next, I must be satisfied that serving a jail sentence in the community wouldnot endanger the community and that it would be consistent with the fundamental purpose and principles set out in the Criminal Code. Ihave already dealt with these issues above. [78] To reiterate, I do not believe that Mr. Dew would endanger the community.

I point to the reduced concern of recidivism notedin the PSR, his age, his unrelated and dated record of only one conviction for impaired driving, his prosocial employment andcommunity history, his devotion and care of his aging and unwell mother, and the fact he has been on stringent condition in thecommunity for three years and has not breached those conditions (since one day after his arrest). [79] And, the circumstances of this offence are unique. I believe a one-year CSO followed by two years of probation is theappropriate sentence for Mr. Dew.

STAGE TWO: THE GROSS PROPORTIONALITY STANDARD: DOES THE MMS VIOLATE

SECTION 12 [80] Having determined that a one-year CSO followed by two years of probation is a fit and appropriate sentence, the next step inthe constitutional analysis is to determine whether the mandatory one-year sentence served in a correctional facility would result in agrossly disproportionate sentence for Mr. Dew.

Justice Martin (for the eight-person majority) in paragraph 122 of Hills sets out the threecrucial components that must be assessed when considering the impact of a MMS: (1) the scope and reach of the offence; (2) the effects of the penalty on the offender; and (3) the penalty, including the balance struck by its objectives. 1) The Scope and Reach of the Offence of Luring [81] As indicated earlier in this decision, the Supreme Court majority did not decide the issue of the constitutionality of themandatory minimums for child luring, but made perhaps prescient comments about the constitutionality of the MMS for this offence.Justice Moldaver stated that several features of the luring provision make a MMS “at the very least, constitutionally suspect” (Morrisonat para 146).

He observed that the mandatory minimums apply to all offences within

section 172.1(1), which vary in a number ofrespects, including: - the age of the victims – less than 18 years old (section 172.1(a)); less than 16 years old (section 172.1(b)) and less than 14 years old(section 172.1(c)); - the wide scope of situations, ranging from a single text message to numerous conversations over weeks or months; - the wide scope of secondary offences for which the communications intended to facilitate, including sexual interference, sexualexploitation, incest, bestiality in the presence of a person under the age of 16, exposure of genitals to a person under 16, aggravatedassault and abduction; - the gravity of the secondary offences vary greatly, reflected by a large variation in the sentencing ranges for the secondary offences.

For example, the MMS for aggravated sexual assault of a person under 16 is five years, with a maximum of life imprisonment; the MMSfor exposure of genitals to someone under 16 is 90 days for indictable exposure or 30 days for

summary exposure. Both these lattermandatory minimums are less strict than the MMS for

section 171.1(2); - some designated secondary offences have no MMS at all. (Morrison at para 147) [82] In this case, the secondary offence was invitation to sexual touching, the invitation being that the young person touch himself. The MMS for indictable invitation to sexual touching is one year. The MMS for

summary invitation to sexual touching is 90 days. In

this case, the MMS for indictable luring and the sentence for the secondary offence of invitation to sexual touching is the same, one year. However, there is a disparity for cases where the Crown proceeds summarily: the luring offence carries a MMS of six months, while the MMS for the secondary offence of invitation to sexual touching is half of that, three months. The upshot is that if this had been a

summary proceeding and Mr.

Dew had invited the victim in person to masturbate himself or another person, the mandatory minimum he would be facing is 90 days. [ 83 ] The defence also counter-posed this offence with the offence of indecent act in section 173(2) where an accused exposing his penis to a child, arguably more serious than luring a 15-year-old who already masturbates to masturbate, carries far more lenient MMSs of 90 days (indictable) and 30 days (summary). [ 84 ] It is also instructive that the Manitoba Court of Appeal in R v JED , 2018 MBCA 123 , declared the MMS sentence for sexual interference unconstitutional (referred to in R v Dyck , 2019 MBCA 81 , at para 101 ). [ 85 ] In Morrison , the Supreme Court repeated the concern it had expressed in R v Lloyd , 2016 SCC 13 , that despite the wide range of conduct and circumstances caught by the luring provision, Parliament did not include a “safety valve” to allow judicial discretion to impose more appropriate lesser sentences in “outlier cases” ( Morrison at para 148 ; Lloyd at paras 35 – 36 ). [ 86 ] Those concerns remain, despite the clarification of the mens rea for the offence, requiring proof that the accused must have intentionally communicated with a person that is or the accused believes is underage, and must also have the specific intent to facilitate one of the listed offences. 2) The Effects of the Penalty on the Offender [ 87 ] The Supreme Court reiterated in Hills that the court should consider the effect of a sentence on the particular offender. [ 88 ] As Justice Lamer stated in Smith : The effect of the sentence is often a composite of many factors and is not limited to the quantum or duration of the sentence but includes its nature and the conditions under which it is applied .

Sometimes by its length alone or by its very nature will the sentence be grossly disproportionate to the purpose sought . Sometimes it will be the result of the combination of factors which, when considered in isolation, would not in and of themselves amount to gross disproportionality. For example, twenty years for a first offence against property would be grossly disproportionate, but so would three months of imprisonment if the prison authorities decide it should be served in solitary confinement . ( Smith at 1073; emphasis added.) [ 89 ] Mr.

Dew suffers from depression, suicidality and an alcohol addiction, currently under control. His mother relies on him as the sole family care-giver. Jailing Mr. Dew could have a grossly disproportionate effect on him and his elderly mother. [ 90 ] I also note the Supreme Court’s statement in Hills (at para 137 ) about whether a sentence served in jail is an effective deterrent: In addition, this Court has repeatedly referred to longstanding doubts about whether mandatory minimum sentences, or incarceration writ large, are effective tools of deterrence ( Nur , at paras. 113-14; Bissonnette , at para. 47; R. v.

Proulx , , 2000 SCC 5 , [2000] 1 S.C.R. 61 , at para. 107 ; see also Canadian Sentencing Commission, Sentencing Reform: A Canadian Approach (1987), at pp. 136-37). Though the certainty of criminal punishment may produce certain deterrent effects, empirical evidence indicates that mandatory minimum sentences do not deter crime any more than a less harsh, proportionate sentence would ( Nur , at para. 114). 3) The Penalty and its Objectives [ 91 ] Parliament has a wide discretion to impose deterrent and denunciatory sentences for offences that encroach on our society`s basic values.

This is particularly clear for sexual offences involving children and young people. There are limits however, as noted in Hills : General deterrence cannot, however, justify a mandatory minimum alone: no person can be made to suffer a sentence that is grossly disproportionate to what they deserve in order to deter others ( Nur , at para. 45; Bissonnette , at para. 51). As Lamer J. wrote in Smith , it may be unnecessary to punish the “small” offender in order to deter the “serious offender ” (p. 1080). (At para 139; emphasis added .) [ 92 ] Mr. Dew is the “small” offender Justice Lamer referred to in Smith .

It would be grossly disproportional to sentence him to jail to deter the “serious offender”. [ 93 ] A mandatory minimum one-year jail sentence for this offence is too excessive in light of the adequate alternative of a CSO. The CSO meets Parliament’s sentencing objectives for luring. [ 94 ] Citing Hills (at para 144 ), A mandatory minimum sentence, however, will be constitutionally suspect and require careful scrutiny when it provides no discretion to impose a sentence other than imprisonment in circumstances where there should not be imprisonment, given the gravity of the offence and the offender’s culpability.

[ 95 ] The sentencing principle of rehabilitation is not entirely displaced as the Supreme Court has stated on numerous occasions, and most recently in Hills (at para 141 ): While rehabilitation has no standalone constitutional status, the strong connection between the objective of rehabilitation and human dignity was explained in Bissonnette (para. 83; Safarzadeh-Markhali , at para. 71). The comments made in relation to offences which may be cruel and unusual by their nature also apply to mandatory minimums under this first prong of s. 12 .

Rehabilitation “reflects the conviction that all individuals carry within themselves the capacity to reform and re-enter society” ( Bissonnette , at para. 83; see Lacasse , at para. 4). [ 96 ] More recently, in Parker , Justice Steel discussed addiction and rehabilitation in sentencing: Drug addiction is an illness “characterized by a loss of control over the need to consume the substance to which the addiction relates” ( PHS Community Services at para 99).

When balanced against the other principles, it is important to consider whether there is a reasonable chance that the offender may succeed in an attempt to control their addiction in order to avoid imposing a sentence that addresses the protection of the public at the expense of rehabilitation.

In this case, while still being mindful of factors such as denunciation and deterrence, the sentencing judge found that the accused’s addiction required an emphasis on rehabilitation and restraint. … Conditional sentences can fulfil the objective of deterrence, especially in the context of addictions. (At paras 20 and 29.) [ 97 ] I have already determined that imprisonment should not be imposed in this case. [ 98 ] Although one year in jail is not a lengthy sentence, the Supreme Court in Hills has directed courts to consider even short jail sentences as grossly disproportionate in circumstances like this case: Where a mandatory minimum imposes a relatively shorter term of imprisonment, the mandatory minimum will still be grossly disproportionate if it represents an intolerable departure from the proportionate sentence.

This would correspond to circumstances where even the smallest difference between the proportionate sentence and the mandatory minimum would outrage standards of decency and shock the conscience of Canadians. (at para 145) [ 99 ] A jail sentence to be served in a jail, no matter how short its duration, would be grossly disproportionate for this offence and offender. [ 100 ] As such, I do not have to consider whether the MMS would violate

section 12 in a hypothetical situation; it fails in this offender’s situation. [ 101 ] The defence suggested that a reasonable hypothetical would be an offender who had Autism Spectrum Disorder (ASD), such as the c ase of R v Nepon , 2020 MBPC 48 , where the mandatory minimum six-month jail sentence for possession of child pornography was found to be unconstitutional for the accused who suffered from ASD, a major depressive disorder, and was legally blind. The defence, conservatively, suggested only one of the disabilities be referred to in this case, that being the ASD.

It is an appropriate reasonable hypothetical, because it is based on an actual case. In that regard, Justice Martin, in Hills at paragraph 81 , referred to the affirmative comments in Nur that referring to reported cases to construct reasonable hypotheticals is appropriate, “because they not only illustrate the range of real-life conduct captured by the offence, they actually ‘happened.’” The approach of considering a reasonable variation to the circumstances of the offender was similarly applied by the Nova Scotia Court of Appeal in Hood (at paras 149-150 ). [ 102 ] At the time of the offence, Mr.

Dew was an untreated alcoholic with suicidal tendencies. He has now taken alcohol treatment and has controlled his long-time addiction to alcohol. He has lived his life almost entirely crime-free. He has suffered from the stigma of this offence in a small community. He looks after his elderly mother whose only other child lives in Australia. She has become even more dependent on him for her case, as her mobility is limited and she appears to be developing some dementia.

He is in a pro-social relationship with an adult woman for the past year. [ 103 ] The PSR writer believed a community disposition would be appropriate for Mr. Dew. [ 104 ] Sending Mr. Dew to jail would be grossly disproportionate. The MMS applied to Mr. Dew does not therefore pass constitutional muster. In his case, the law is unconstitutional and cannot be applied. SENTENCE [ 105 ] The sentence for the luring offence (s. 172.1(1)(

b) will be a 12-month CSO followed by two years of supervised probation. There will be a one day concurrent CSO for the two breaches of his undertaking. [ 106 ] The conditions of the CSO are as follows: • Keep the peace and be of good behaviour; • Appear before the court when required to do so;

• Report to a supervisor within two working days and thereafter as required by the supervisor; • Do not leave Manitoba without the written permission of your supervisor or the court; • Notify your supervisor in advance of any change in your name, address, employment or volunteer work; • For the first six months of the CSO there will be an absolute curfew with the following exceptions: o Volunteer work or paid employment; provide the details and dates of such work to your supervisor in advance; o Any rehabilitative counselling, programming or treatment; o Medical and dental appointments for yourself or your mother; o A four-hour block of time each week for other personal errands, as decided in advance with your supervisor; o In the case of a medical emergency for you or your family; • For the last six months of the CSO, there will be a curfew of midnight to 6:00 a.m. with an exception for medical emergencies or otherwise as approved in advance by your supervisor; • Make yourself available by telephone or at the door for curfew checks by the police; • Do not be in a position of sole care and control of persons under the age of 16 in a work or volunteer capacity; • Attend, participate and complete any assessment, treatment and program identified by your CSO supervisor; • Abstain absolutely from the consumption of alcohol and drugs, except for drugs for which you have a prescription. [ 107 ] The conditions of the two-year probation order are very similar, but there will be no curfew or travel restriction.

The conditions are as follows: • Notify your probation officer (PO) in advance of any change in your name, address, employment or volunteer work; • Do not be in a position of sole care and control of persons under the age of 16 in a work or volunteer capacity; • Attend, participate and complete any assessment, treatment and program identified by your PO. [ 108 ] I will not impose a victim surcharge, given that Mr. Dew is not working. [ 109 ] The following ancillary orders are also made: -

Section 109 mandatory 10-year weapons prohibition; -

Section 487.051(1) DNA primary designated offence; provide a sample of your DNA within 60 days from today; - Mandatory SOIRA order (section 490.013(2)) for 20 years; - Discretionary section 161(1)(a.1) prohibition orders for a period of 5 years: (a.1) You must not attend within 200 meters of [REDACTED]’s home, school or employment (

b) You are not to seek any employment or volunteer work where you are in a position of trust or authority over any person under the age of 16; (

c) You must not communicate electronically with any person under the age of 16; and you must not have any contact or communication by any means with [REDACTED]. Original signed by Judge Devine C.A. Devine, P.J.