R. v. GUDMANDSON, 2018 MBPC 31

CITATION: R. v. GUDMANDSON , 2018 MBPC 31 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) Alanna Hall ) for the Crown ) and ) ) ) GUDMANDSON, Eric ) Kristopher Advent ) for the Accused ) ) ) ) Reasons for Decision delivered: ) August 16, 2018 Restriction on publication : By court order under s. 486.4(1) (

a) of the Criminal Code , any information that could identify the victims shall not be published in any document or broadcast or transmitted in any way. DEVINE, P.J. Introduction [ 1 ] This is a sentencing decision about the appropriate sentence for an offender who pleaded guilty to ongoing sexual abuse of multiple girls under the age of 18 in the context of the offence of obtaining sexual services for consideration, pursuant to

section 286.1(2) of the Criminal Code , which became law November 6, 2014. The wording of the predecessor offence, section 212(4), is identical. What has changed is the sentence for that offence. The maximum sentence under

section 286.1(2) has doubled and the mandatory minimum for subsequent offending has also doubled. The main issue in this sentencing is whether the old sentencing case law still applies. There is almost no sentencing jurisprudence for

section 286.1(2) . [ 2 ] I have determined that the sentencing jurisprudence under the previous regime does not apply. Bill C-36, of which the new

section is a part, represents Parliament’s decision to treat prostitution offences involving children and youths as child abuse and sexual exploitation as opposed to public nuisance offences, with harsher penalties to reflect the primary objectives of denunciation and general deterrence. Moreover, in the particular circumstances of this case, a harsh sentence is necessary to give effect to the need for denunciation and deterrence of this systemic crime against Indigenous girls in Winnipeg. [ 3 ] Mr.

Gudmandson, a 56-year-old non-Indigenous offender, pleaded guilty to obtaining sexual services from seven different girls, whose ages ranged from 12 years to 17 years, over an 18-month period, from January 1, 2015 to August 25, 2016. The girls were very vulnerable to his exploitation. The pattern and magnitude of the offending is egregious and the impact on his victims tragic. The Offender also pleaded guilty to possession of marijuana for the purpose of trafficking, which he committed in the course of obtaining sexual services from the victims.

The Offences and the Victims [ 4 ] The Offender’s behaviour was predatory. He lived in a basement apartment on Spence Street in the area of the street sex trade. He moved from having sex with adult women to having sex with children and teens. The pattern was always the same. He would arrange to pick up girls in his car, take them to his place and give them drugs, cash, food and sometimes lodging, in return for sexual

intercourse and fellatio. The girls were between the ages of 12 and 17. He knew their ages. Some of the victims had never worked in the sex trade before. The victims had many characteristics and circumstances in common. They were all Indigenous girls. They were all wards of Child and Family Services. They were all clients of Street Reach, a multidisciplinary government strategy (consisting of police, education, social work, Indigenous groups, justice, addictions, etc.) to help high-risk child victims of sexual exploitation.

The Offender contacted the girls, usually through Facebook, and arranged to pick them up in his car and then took them to his apartment. He met one girl through her mother, a sex trade worker, then met other girls, then met other victims through those girls. The Offender had two young sons, ages seven and 15 at the time of the offences, who were often home when the Offender brought the girls home. [ 5 ] The Offender exploited the girls by performing vaginal sexual intercourse on them and having them perform fellatio on him. He performed the sexual acts to the point of ejaculation.

He refused to wear a condom on all but two or three occasions out of countless occasions. He told the girls he was allergic to latex. In all but one case, each girl was sexually exploited by the Offender multiple times, “too many times to count” and “weekly,” as attested to in their Victim Impact Statements, over many months, up to 18 months for many of the girls. The victims often saw him having sex with other victims.

What follows is how each of the girls was victimized, in addition to the forgoing, which I will not repeat, as they are the characteristics the victims held in common, or circumstances which were commonly experienced by them. SS [ 6 ] The Offender exploited SS over a six-month period in 2016 when she was between the ages of 14 and 15. She was introduced to the Offender by another of his victims, KJ. The Offender began to contact SS through Facebook and would arrange to pick her up in his car and take her to his apartment on Spence Street. His sons, ages seven and 15 at the time, were often home.

Once they were at his apartment, the Offender had her perform fellatio on him to the point of ejaculation and touched her breasts and groin area over and under her clothing. He refused to wear a condom, even though she would always ask him to do so. He gave her cash, marijuana, prescription drugs (Xanex bars) and alcohol.

As an example, on one occasion he gave her $80, six milligrams of marijuana, three packages of cigarettes and some Rockstar power drinks, in exchange for performing fellatio on him. [ 7 ] The victim was incarcerated at the Manitoba Youth Centre when she met with the Crown to prepare for trial and reviewed her videotaped police statement. Her Victim Impact Statement provides a poignant insight into the effect of the exploitation on her: When I first moved to Little Sisters I was going to school and I was doing well in my life. While I was at Little Sisters group home I was then introduced to Eric Gudmandson.

My life started to go downhill. I had just turned 15. Before meeting Mr. Gudmandson I had never sold myself or even thought of it. When I first moved to Little Sisters I was an innocent girl. During the several months of seeing him he gave me drugs, alcohol and money in exchange for sexual acts. It made me feel disgusted with myself. I stopped going to school. I stopped seeing my family. I started using drugs regularly. Before I met him I was not into drugs. He made me go downhill in my life. It included getting into trouble with the police for drug use and getting locked up in jail for it.

This is a cycle I’m still dealing with over a year later. When the Crown . . . and . . . the support worker came and saw me to prepare for trial I had to watch my statement and this brought back horrible, bad memories. Right now I am in the Youth Centre and sober and I’m forced to think about things. On the outside I was able to use drugs to cope and to forget about the multiple times Mr. Gudmandson would use me for his own advantage. But I realize now to move on and to get better and to have a better life. I have hopes and dreams for being a veterinarian because I love animals . . .

My hope is that this never happens to any other young girl like me. HB [ 8 ] The Offender exploited HB over a six-month period, “too many times to count” as she said in her Victim Impact Statement, when she was between the ages of 16 and 17. He knew her age, because he asked her on the first occasion they met. He had vaginal sexual intercourse with her and had her perform fellatio on him. He gave her cash, marijuana and tobacco or let her sleep at his apartment, including spending the night there, in exchange for the sex. “I did this because I needed a place to stay and I needed the money.

He took advantage of me.” One time when she was menstruating, he threw her out of the apartment. [ 9 ] Similarly to SS, preparing for the trial by having to review her statement triggered HB, “Having to prepare for trial required me watching my video statement to police, made me feel embarrassed, uncomfortable, worried, nervous and sad.” She ended by stating, “Eric Gudmandson took a piece of me; I am not going to let that stop me.” MG [ 10 ] The Offender exploited MG over an 18-month period when she was between the ages of 12 and 14, “too many times to count.” The sexual acts involved vaginal sexual intercourse and fellatio.

The Offender would give her $10 or $20 with a gram of marijuana and a package of cigarettes. MG said the Offender’s boys were there many of the times, not in his room where he had sex with her, but “right there” outside the room. She said he used a condom “maybe once” but always said he was allergic to condoms, so generally did not wear them. The child was addicted to methamphetamine at the time. KJ [ 11 ] The Offender exploited KJ over an 18-month period when she was between the ages of 14 and 15. She was introduced to the Offender by her mother who worked in the sex trade.

KJ was 13 years old when her mother introduced her to the Offender. The Offender would drive her around in his car and take her to movies. When she was 14, he asked her if she knew what escorting was. She told him she was involved in the sex trade and then he started offering her money in exchange for sex. The sex acts involved vaginal sexual intercourse to the point of ejaculation once and fellatio to the point of ejaculation several times. She did not like having sex with him and did it for the money. KE [ 12 ] The Offender exploited KE over a six-month period when she was between 15 and 16 years of age.

She was introduced to him by two of the other victims. The Offender had unprotected vaginal intercourse and fellatio to the point of ejaculation. KE said he used a

condom twice during all the times he had intercourse with her. He gave her and the other girls money, marijuana, McDonalds food and cigarettes in exchange for the sex. The victim was crying throughout her statement to police. HF [ 13 ] The Offender exploited HF over a six-month period when she was 15. She had been living in northern Manitoba and was sent to Winnipeg for therapy, because she had attempted suicide. Once in Winnipeg she was introduced to the Offender. He violated her weekly over of the six-month period, again, with unprotected sexual intercourse and fellatio.

She saw him sexually exploiting other girls. She met his sons and was able to tell police their names. She hung out with the younger boy, JG, but said the teenage boy, BG, did not like her and the other girls and called them “whores.” PC [ 14 ] The Offender exploited PC on one occasion when she was 15 or 16 years of age. He committed sexual intercourse and fellatio on her in exchange for money, tobacco and marijuana. She was addicted to methamphetamine at the time and needed the money the Offender gave her for the drugs.

She told police she felt “disgusted and degraded” and wanted to go into treatment and indeed was entering into a detoxification unit on the first day of trial. The Offender [ 15 ] The Offender is now 56 years of age; he was 53 years old at the time of his arrest. He is Caucasian. He is divorced and the father of two boys who lived with him part time and who were often present when he took the victims to the apartment and to his bedroom. He was born in Winnipeg and lived in Surrey, Vancouver and The Pas throughout his life. His father died when he was young. He witnessed domestic violence against his mother.

His mother dropped him and his brother off at their older sister’s at some point when they were young. He had to work as young as 13 to 14 years of age, because of a strict step-father. He worked for the CNR in The Pas. He got involved in singing and the music industry as young as 13 and he has been involved in the music industry most of his life. He went back to school as an adult and got a few credits at the University of Manitoba. He started drinking and doing drugs such as cocaine and heroin when he was about 27 years old. He had five children. CFS became involved with his first daughter.

He went into recovery with the help of Alcoholics Anonymous when he was 42, which is when he had his last drink. He met the boys’ mother in AA. The older boy is now 17 years of age and the younger boy is now nine years of age. [ 16 ] The Offender has a dated and limited criminal record, an impaired driving conviction from 1999. He was also detained under The Intoxicated Persons Detention Act several times. [ 17 ] In 2011 the Offender had a charge of obtaining sexual services diverted by taking the Prostitution Diversion Program.

He would have heard presentations from police, a specialized Crown Attorney and the police and learned about the impacts and seriousness of prostitution offences on girls. [ 18 ] The offences against these girls occurred after his last relationship with a woman ended. He stated that he subsequently became “entrenched in that lifestyle.” In a letter he read to the Court at his sentencing, the Offender stated that he now thinks he was substituting one addiction, that is, sex with girls, for another, that is, alcohol. He got regular medical check ups from his doctor because of the unprotected sex he was having.

He had to take antibiotics after contracting a sexually transmitted disease. [ 19 ] The Offender noted several impacts to him as a result of the charges and guilty pleas: • He was fired from his job as a truck driver for a landscaping company • The Highway Traffic Act imposes a mandatory suspension of his driver’s licence • He will be on the Child Abuse Registry • The publicity surrounding the offence has had a deterrent effect • He claimed to have lost a $10,000 down payment on a house • He has lost his apartment and possibly some of his musical instruments • He is the victim of name-calling and spitting in jail [ 20 ] While the Offender has been on remand status, he was diagnosed with virus-induced tonsillar cancer and underwent successful radiation treatment at CancerCare Manitoba.

The radiation in turn has caused dental problems due to chronic dry mouth syndrome. The defence filed a letter by Dr. Leylek, Radiation Oncologist from CancerCare Manitoba who recommended that “dental care should be optimized. These requirements are [sic] not necessarily need to be sophisticated.” The Offender alleged his dental problems require more sophisticated and expensive care than the provincial corrections system is willing to pay. He is therefore seeking a sentence that would allow him to be in the community to obtain proper dental care. He filed a letter from Dr.

Chaaban with the Headingley Correctional Centre’s Medical Unit. Dr. Chaaban recommended extraction of a tooth with a very deep and large cavity prior to cancer treatment. The Offender declined. After radiation treatment, the Offender complained of tooth pain from that tooth, insisting that a Crown could be placed on the tooth. Dr. Chaaban recommended either an extraction or that CancerCare’s dental clinic might be better positioned to provide the dental work. Unfortunately, CancerCare does not provide post-radiation dental work. The Head of Adult Dentistry recommended other options that may be available.

It is trite to say that without a robust insurance plan, dental work is expensive. I have nothing before me to show that the Offender’s access to full dental care would be better in the community where he would be paying all of the cost out-of-pocket. [ 21 ] The Offender took a number of programs while on remand, including Coming to Terms, Thinking Awareness, End to

Aggression, Anger Management, Goal Setting, Problem Solving, Changing Habits and Getting a Job. He also worked on the EnneagramPersonality and Self Discovery program through the chaplain. He has a meditation practise. He works as a cleaner in his range. [22] He also filed several personal letters, including a letter from his seventeen- year-old son who wants his father to be with himand his brother and make amends to them. The other letters are from friends, colleagues and family members, who characterize theOffender in a fairly positive light.

None of the letters address the offences with which he is charged. [23] The Offender read and filed a letter in his sentencing hearing. He says he did not have sex with the girls when his boys werehome. The Offender attempted to characterize himself as a “safe guy” as opposed to some other ‘customers.’ He emphasized that therewas an absence of physical violence or threats. The Offender tried to characterize himself as obliging to the victims – saying that theywould pester him for rides and drugs and even knock on his window at times.

He says he did not know they were under 18, althoughdefence properly advised that there was no reasonable attempt made to ascertain their ages. He filed “selfies” from two of the girls. Heclaims that he did not cause the girls to get into prostitution. The arguments of the Offender tend to demonstrate his lack of appreciationfor the nature and extent of his offending behaviour and the cycle of drug abuse, vulnerability and street culture of his victims. Characterization of the Offence [24]

Section 286.1(2) of the Criminal Code states: 286.1(2) Everyone who, in any place, obtains for consideration…the sexual services of a person under the age of 18 years is guilty of anindictable offence and liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for aterm of (

a) for a first offence, six months; and (

b) for each subsequent offence, one year [25] The former offence in section 212(4) is identically worded, except that the maximum sentence was five years and themandatory minimum of six months was for both a first offence or subsequent offences. [26] The changes do not end there, however.

Section 286.1(2) was part of a significant change in the law with respect toprostitution-related offences following the Supreme Court of Canada’s decision in Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, which struck down several prostitution-related offences. The Supreme Court found unconstitutionalonly prostitution-related offences with respect to adults; prostitution-related offences with respect to children were unaffected. JusticeCameron succinctly rejected the argument in R. v.

Ackman, 2017 MBCA 78 that the Bedford decision should be extended to sex tradeworkers under the age of 18: I would decline to extend Bedford to section 212(2). I agree with the Crown that the underlying premise in Bedford was that prostitutionwas not illegal as it pertained to adults (see paras 1, 5). On the other hand, prostitution involving persons under the age of 18 years wasand continues to be illegal. Then section 212(4) (now

section 286.1(2)) prohibits everyone from obtaining sexual services forconsideration from a person under the age of 18. Simply put, section 212(2) was not part of the challenge in Bedford and therefore only evidence regarding adults was considered.

Therewas no evidence regarding the security and safety of persons under the age of 18 years or any evidence regarding the unique effects ofprostitution on minors in light of their inherent vulnerability and heightened need for protection. (at paras. 35-36) [27] Parliament’s response to Bedford was Bill 36, the Protection of Communities and Exploited Persons Act, which now comprisessections 286.1 to 286.5 of the Criminal Code.

The Bill received Royal Assent on November 6, 2014, prior to the commission of theoffences in this case. [28] A review of the Bill and government discussion papers make it clear that the Bill represents a significant shift in howprostitution is treated by the criminal law. The emphasis is no longer on prostitution as a community nuisance corrupting morals, butrather on the protection of victimized women and girls.[1] It is clear that the

section and the purpose of the legislative provisions are tocriminalize sexually exploitive behaviour, especially the sexual exploitation of children and young people. [29] The Crown in this case filed the Technical Paper accompanying the Bill, published by the Government of Canada. It states thatthe Bill “reflects a significant paradigm shift away from the treatment of prostitution as “nuisance”, as found by the Supreme Court ofCanada in Bedford, toward treatment of prostitution as a form of sexual exploitation that disproportionately and negatively impacts onwomen and girls” (Emphasis in original, at 3).

The shift is signaled through the statement of purpose, which is reflected in the Bill’spreamble, as well as by the placement of the offences in

Part VIII of the Criminal Code, Offences Against the Person, which isconsistent with all sexual offences against adults and children. [30] With respect to children, the Bill’s

preamble states, “Whereas it is important to protect human dignity and the equality of allCanadians by discouraging prostitution, which has a disproportionate impact on women and children.” [31] The Technical Paper states that the objectives of the Bill were based on several conclusions about “prostitution” involving girlsunder the age of 18: • most of the people who sell their own sexual services are women and girls; • marginalized groups, such as Indigenous women and girls are disproportionately represented;

• entry into prostitution and remaining in it are both influenced by such factors as poverty, youth, lack of education, child sexual abuse and drug addiction; • prostitution is an extremely dangerous activity; • it poses a risk of violence and psychological harm to those subjected to it; • Pr ostitution reinforces gender inequalities in society at large by normalizing the treatment of primarily women’s bodies as commodities to be bought and sold. In this regard, prostitution harms everyone in society by sending the message that sexual acts can be bought by those with money and power.

Prostitution allows men, who are primarily the purchasers of sexual services, paid access to female bodies, thereby demeaning and degrading the human dignity of all women and girls by entrenching a clearly gendered practice in Canadian society; • Prostitution also negatively impacts the communities in which it takes place through a number of factors, including: related criminality, such as human trafficking and drug-related crime; exposure of children to the sale of sex as a commodity and the risk of being drawn into a life of exploitation; harassment of residents; noise; impeding traffic; unsanitary acts, including leaving behind dangerous refuse such as used condoms or drug paraphernalia; and, unwelcome solicitation of children by purchasers. • The purchase of sexual services creates the demand for prostitution, which maintains and furthers pre-existing power imbalances, and ensures that vulnerable persons remain subjected to it. [ 32 ] It is relevant in this case as well to note that the Bill imposes higher mandatory minimum fines on those who purchase sexual services or communicate for that purpose in locations where the presence of children can reasonably be expected.

The purpose is to protect children from exposure to prostitution, “ because such exposure risks normalizing a gendered and exploitative practice in the eyes of impressionable youth and could result in vulnerable children being drawn into a life of exploitation (at 9).

The Technical paper states that, “ In this way, Bill C-36 is intended to send a particularly strong message to purchasers about the harms their conduct causes to vulnerable communities in its effort to reduce the demand for prostitution” (at 9). [ 33 ] The Crown also filed material about the complexion of the sex trade and the impact on those working in the sex trade in Winnipeg, in the Evaluation report of the TERF program conducted by Dr. Jane Ursel et al. from the University of Manitoba.

TERF (Training and Employment Resources for Females) is a program that has been in operation since 1986 in Winnipeg that is aimed at reducing the exploitation of women, youth and transgendered individuals in the sex trade. The information in the report corresponds closely with the Technical Paper for Bill 36. For ease of reference, where the report refers to “youths” I will refer to “girls.” [2] [ 34 ] The average age that girls reported their first experience of sexual exploitation was 12.4 years of age. The average age of entry to the sex trade was age 13.

The average length of time in the sex trade is five or more years. Girls reported trying to leave the sex trade 7.4 times. Eighty-nine percent of the girls were of Indigenous background. Seventy-four percent of them were involved with Child and Family Services. They had an average of 6.5 placements. Seventy percent of the girls reported trouble with addictions. Seventy-four percent of them had been charged with criminal offences and fifty percent of them had been incarcerated.

These statistics, taken from youth involved in the TERF program in Winnipeg, are consistent with and reflected in the literature about sexual exploitation of youth in the sex trade (at 9, Evaluation of the TERF Youth and Adult Programs, RESOLVE, University of Manitoba, March 2007). [ 35 ] The report discussed the “staggering number of barriers” to youths and adults leaving the sex trade.

These include poverty and homelessness, which led to their involvement in the sex trade, and drug and alcohol addictions, which evolve from coping behaviours to survive in the sex trade, to a “major pressure pulling them back on to the streets.” Girls involved in the sex trade fall behind in education and “acquire a number of physical, emotional and social problems that take time and work to overcome” (at 17). “In the face of the women and youths’ histories of violence, abuse and addictions, the goal of exiting the sex trade is heroic.

They are on a journey to reclaim their lives” (at 17). [ 36 ] The study found, consistent with the clinical and academic literature, that the majority of adults working in the sex trade began as minors, most entering between the ages of 13 and 15 in this study.

Age of entry is an important factor because the earlier the age at first exploitation the longer their exposure to violence, emotional trauma, reduced opportunities and impairment of mainstream life stills (education, employment, etc.) The earlier the entry also leads to greater entrenchment in street culture, which forms an additional barrier to connecting with TERF; [b]reaking the ties to street culture becomes one more challenge the participants face. (at 17) [ 37 ] The reasons that youths and women became involved in the sex trade in Winnipeg were: early child sexual abuse/exploitation, failure to be protected as children, dysfunctional home life filled with conflict, involvement with child protection, and the additional legacy of the residential school system (at 19 and 30-31). [ 38 ] Once involved in the sex trade, these already exploited girls experience stigmatization and discrimination at a critical time in their development of identity and self. “The internalization of all of these negative and harmful messages is a toxic mix which makes individuals feel worthless, undeserving and sets in motion a pattern of avoidance and distrust” (at 20).

The study found that sex trade youths and adults experienced a number of emotional effects, the most common being depression, low self worth, a sense of hopelessness, feelings that life has no meaning, suicidal thoughts and attempts and self-destructive behaviours (at 20). Feelings of low self worth are persistent and long term (at 26-27). Some TERF participants manifest symptoms of post-traumatic stress disorder. [ 39 ] Seventy percent of participants identified an addiction problem (at 21).

Ninety one percent of girls reported that they used drugs or alcohol during school; eight-two percent missed school or work due to being high or hungover and sixty-four percent got into trouble because of things they had done while using drugs and alcohol (at 21). Addictions are one of the biggest challenges for people trying to leave the sex trade, according to TERF: The dual challenge of exiting the trade and dealing with addictions is daunting. As participants begin to explore their experiences of

exploitation and the difficulties of exiting, strong emotions surface, some for the first time. Often individuals will suppress vulnerable thoughts and emotions in order to remain strong enough to cope with life on the street. In the safe environment of TERF where these issues are openly discussed, emotions such as fear, hurt, regret, and loss are experienced and expressed.

Because substance use has become their primary means of coping, many will turn to drugs and alcohol to help them deal with these emotions. (at pages 21-22) [ 40 ] Sexually exploited individuals are also particularly vulnerable physically: to violence (sixty percent of youths reported violence in the sex trade), but also to sexually transmitted infections and Hepatitis B and C. Also, . . . fatigue, sleep deprivation and lack of food are common . . . and negatively impact their immune systems making them more vulnerable to infections and illness.

Many do not access medical services due to fear of being reported to the police or child welfare or fear of harsh, judgmental treatment from health care providers. Thus, medical conditions often go untreated and become worse. Addictions only exacerbate the problem. (at 22) [ 41 ] The findings of the Winnipeg TERF study are consistent with the literature in the field. A comprehensive literature review is contained in the report (at 57-83).

Sentencing Sexual Offences against Children and Young People [ 42 ] As society learns more about the ways in which children are exploited and violated by sexual predators, and the harm that sexual exploitation causes, legislative provisions and the jurisprudence have responded by broadening the scope of protections for children and by establishing harsher sentences aimed at denunciation and deterrence. [ 43 ] By way of example, the age of consent was increased from 14 years to 16 years as part of the Tackling Violent Crime Act , SC 2008, c 6 in 2008.

Minimum sentences for sexual interference were enacted in 2005, along with an increase to the maximum sentence. In 2012, minimum sentences for sexual interference and sexual assault where the victim was under the age of 16, were enacted. As Justice Cameron stated in the Court of Appeal decision of R. v. Norton , 2016 MBCA 79 : In my view, all of the above amendments reflect the intent of Parliament to widen the scope of protection for children and deter and denounce those who sexually offend against them. (at para. 25) [ 44 ]

Section 718.01 of the Criminal Code requires that when a Court imposes a sentence involving the abuse of a person under the age of 18, primary consideration must be given to the objectives of denunciation and deterrence. Likewise, the jurisprudence establishes that the primary objectives when sentencing sexual offences against children and young people are denunciation and deterrence. [ 45 ] This will not be the first occasion where a sentence is significantly higher than precedents from cases that predated legislative amendments.

Justice Cameron noted in Norton : I agree with the British Columbia Court of Appeal that sentences for sexual offences against minors are increasing.

Indeed, prior to the 2008 amendments to the Code imposing a minimum penalty, it was not uncommon for the court to impose conditional sentences or lower incarceratory sentences for similar crimes. (at para. 43) [ 46 ] If the Offender had pleaded guilty to sexual interference or sexual assault, I would be considering a starting point sentence of three years with respect to the offences committed against each of the victims who were under the age of 16 at the time of the offences.

The nature of the sexual acts, involving sexual intercourse and fellatio, constitute “major sexual assaults” within the meaning of the case law, thus attracting the starting point of three years. The Offender was charged with several counts of sexual assault and sexual interference, however he pleaded guilty to seven counts of buying sexual services from girls under the age of 18.

In argument, defence counsel urged the Court to consider pleas to the “lesser offence” of obtaining sexual services for consideration as meriting a lower sentence. [ 47 ] In characterizing obtaining the sexual services of a minor for consideration as a ‘lesser offence’, defence must have reference to the predecessor legislation, because the current legislation does not greatly assist his argument. The maximum sentences for sexual interference, sexual assault and obtaining the sexual services of a person under the age of 18 are the same, 10 years.

The mandatory minimum sentence is less, six months for obtaining sexual services, as opposed to one year for sexual interference or sexual assault. [ 48 ] Given the lengthy period of time over which these offences occurred, the multitude of times the girls were abused, the fact they were extremely vulnerable, and the fact that they were always given drugs and alcohol as well as money, precludes consideration of any minimum. [ 49 ] Knowing everything we do about the precursors to girls becoming involved in the sex trade, the impact it has on their education, physical health and safety, employment, mental health and general well-being, and the pernicious cycle of drug abuse, petty crime and incarceration that girls in the sex trade experience, it is difficult to understand why sentences for the sexual exploitation of girls by buying sexual intercourse with cash, drugs and food, should be less harsh than sentences for having sex with girls without the exchange of consideration. [ 50 ] As the appreciation of the offence has moved away from public nuisance to child abuse, the distinction of consideration or no consideration would appear to play less a role.

Moreover, as girls under the age of 16 cannot in law consent to sexual activity, it is difficult to accept a distinction in sentencing for offenders who pay girls under the age of 16 for sexual intercourse and other sexual acts and offenders who do not pay girls. It is difficult to reconcile that a sentence for the same non-consensual sexual offences would have vastly different sentences, the only difference being some cash, marijuana or tobacco being given to the victim by the offender.

Where an offender is being sentenced for sexual assault, the circumstance of giving the child money, gifts and special treatment is considered luring in some circumstances, and aggravating in all circumstances. [ 51 ] Accordingly, jurisprudence for other forms of sexual abuse of children is more appropriate to consider, than jurisprudence under the now-repealed section 212(4).

[ 52 ] As indicated earlier in this decision, Bill C-36 and the enactment of

section 286.1(2) along with the new prostitution offences, signalled a move away from an understanding of prostitution as a nuisance or morals offence to an offence against the sexual exploitation of women and girls, with harsher penalties for sexual offences against people under 18. The case law involving the predecessor prostitution offence is therefore not useful for a parity analysis. The legislative change in Bill C-36 signalled a clear shift. It would be contrary to the purpose and objectives of this legislative shift to rely on precedents from the earlier legislative provision.

I have included a discussion of some of the cases filed, by way of example. Sentencing Case Law under the Predecessor

Section and Similar Offences [ 53 ] A reading of the case of R. v. Slater , 2004 SKQB 301 filed by the defence, reflects an earlier view of the offence of obtaining sexual services from a person under the age of 18, where the range of sentences in the cases reviewed was 90 days to two years less a day. The Court imposed a concurrent sentence of 18 months where the offender sexually exploited six girls one of whom was 14, two girls who were 16 and three girls who were 17. [ 54 ] Defence also filed the case of R. v. JLM , 2017 BCCA 258 , where the offender was also sentenced under the previous legislation.

The Appeal Court majority struck down the six-month mandatory minimum and imposed a nine-month conditional sentence. The offender in that case had significant Gladue factors. The offence involved one occasion involving the 16-year-old girl masturbating him and allowing him to touch her breasts, in exchange for money and cigarettes. Similar to Slater , above, the Court was supplied with dated sentencing precedents, from 1993 to 2007.

The British Columbia Court of Appeal found that the appropriate sentencing range, considering the precedents and the circumstances of the offence and offender (in particular his Aboriginal heritage) absent the mandatory minimum, would be as low as a suspended sentence and as high as six months. [ 55 ] These cases do not take into account the change that Bill C-36 has signalled. [ 56 ] Subsequent to the sentencing hearing, I obtained the case of R v. Alvi , 2018 ABPC 136 , a decision of the Provincial Court of Alberta.

In that case, the first-time offender was caught in a sting operation of the Calgary Police Department, for attempting to purchase the sexual services of a girl under the age of 18. He challenged the mandatory minimum sentence. No money changed hands and no sexual services were provided. The Offender was charged with communicating for the purpose of obtaining sexual services, as opposed to obtaining sexual services. There are many features of Alvi that distinguish it from this case.

Alvi was a 20-year-old, one-time offender, as opposed to a middle-aged man charged with ongoing offences involving seven girls over an 18-month period. There was no actual sexual contact in Alvi ’s case, as distinct from the significant harmful sexual contact in this case. In Alvi , a police officer posed as an underage person, so there was no actual contact with a girl. The Court found that Alvi was not a danger to the community, such that

section 718(c), separation of the offender from the community, would be engaged. I specifically found Mr. Gudmandson to be a danger to the community and specifically, to girls who fit the cohort of his victims, at his bail hearing on July 10, 2018. The Court in Alvi found that the objective of rehabilitation was engaged, in

section 718(d), unlike in this case, where previous intensive and targeted rehabilitation in 2011 was done, diverting adult charges. Judge Robertson found the 6-month mandatory minimum to be unconstitutional and unable to be saved by

section 1. He imposed a 90-day intermittent sentence. [ 57 ] The Crown filed a recent decision of Judge Harvey of the Manitoba Provincial Court, R. v. Rose , (16 November 2017) Winnipeg (Man.Prov.Ct). The offender pleaded guilty to several offences involving several girls, including luring, voyeurism, making child pornography, advertising sexual services, procuring sexual services and obtaining sexual services between 2013 and 2015. He had a lengthy and related record. The offender was sentenced to a total of 21 years.

With respect to the offence of obtaining sexual services of a girl under the age of 18, the offence occurred under the predecessor section 212(4), between September 1 and November 30, 2014. Judge Harvey reduced the four-year sentence to three years, taking into account the principle of totality. [ 58 ] The Manitoba Court of Appeal decision of R. v. Ackman , 2017 MBCA 78 , is helpful because the offender preyed on the same cohort of girls as in this case.

He appealed his conviction and sentence for attempting to and for living on the avails of prostitution of persons under the age of 18 (under the predecessor section), making child pornography, sexual assault, invitation to sexual touching and possession of proceeds of crime over $5,000.00. His conviction appeal was dismissed and his global sentence of 15 years was undisturbed on appeal. The major difference between this offender and Ackman is that Ackman advertised the girls and profited from other men having sex with them.

Otherwise, the similarities are marked: Ackman targeted girls as young as 14, some of whom were already victims of sexual exploitation, he used emotional manipulation and dependence on drugs and alcohol to get them to comply with his wishes, and they were extremely vulnerable girls in CFS care, at the Manitoba Youth Centre. Ackman’s cumulative sentence after trial was 22 years, reduced to 15 years for totality. [ 59 ] The decision of R. v.

K.G ., 2015 ONSC 6094 involved one count of invitation to sexual touching and one count of attempting to obtain the sexual services of a person under 18 pursuant to the predecessor section 212(4). The offender made several phone calls to his best friend’s daughter who considered him like an uncle, and her friend, aged 14 and 15, and offered money to buy dirty panties and have them perform sex acts. The phone calls took place over a number of days. There were no actual sex acts committed. The offender was sentenced to one year concurrent on each offence. [ 60 ] The lack of precedents considering

section 286.1(2) therefore requires consideration of the appropriate sentence on a principled basis, as set out in the sentencing framework of the Criminal Code and the direction from appellate courts with respect to sentencing sexual offences against children. The Approach to Sentencing under

section 286.1(2) [ 61 ] Given that the focus of

section 286.1(2) is to protect the sexual integrity of individuals and protect them from exploitation, with particular protections where victims are under the age of 18, the case law involving sexual abuse and exploitation of young persons generally is a more appropriate comparable. This is underscored by the fact that buying sexual services from minors now carries a maximum penalty of 10 years, the same as the Criminal Code offences of sexual assault, sexual interference and invitation to sexual touching.

Likewise, there is a mandatory minimum of six months for a first offence (this previously the case) and one year for each subsequent offence. In this case, the Crown conceded that the Offender was being treated as a first-time offender for the purpose of the

mandatory minimum. [ 62 ] In Norton , Justice Cameron of the Manitoba Court of Appeal noted that sentences for sexual offences against minors are increasing. Similarly, in R. v.

E.S. , 2017 BCCA 354 , Justice Hunter of the British Columbia Court of Appeal observed that as the long term effects of child sexual abuse are becoming better known, courts recognize that a “significant period of incarceration” is necessary to express the denunciation of the community (at para. 57; see also K.G . , ibid, at para. 17 ). [ 63 ] The starting point for major sexual offences against children where the offender is in a trust relationship is four to five years ( R. v. Sidwell , 2015 MBCA 56 ).

Where the trust relationship is not present, the starting point is three years in Manitoba and many other, if not all, jurisdictions in Canada ( Norton , ibid., at para. 44; R. v. Whiting (SC) , 2013 SKCA 101 at para. 27 ; R. v. Hajar , 2016 ABCA 22 at para. 53 ; R . v. Barrett (AW) , 2012 NLCA 46 at para. 49 ). The starting point assumes a mature person with a clean record and good prior character. [ 64 ] These offences must be sentenced consecutively. Each victim was uniquely harmed. This approach has been endorsed by the Manitoba Court of Appeal in R. v. P.K., 2012 MBCA, expanded upon in R. v.

D.C. , 2016 MBCA 49 at paragraph 43 and applied in R. v. R.J. , 2016 MBPC 25 at paragraph 7 . Moreover,

section 718.3(7) of the Criminal Code , which received Royal Assent on June 18, 2015, requires consecutive sentences where an offender commits sexual offences against more than one child. All the offences in this case extended past June 18, 2015. Proportionality and the Aggravating and Mitigating Circumstances [ 65 ] The offences are extremely serious and the harm done to the victims is significant. The Offender’s moral culpability is high. He is a relatively sophisticated, privileged and middle-aged man whose behaviour was predatory.

In addition to that, he had previous exposure to learning about the harm that prostitution causes to sex trade workers when he was required to go to the Prostitution Diversion Program in 2011.

Notwithstanding previous intervention by the criminal justice system aimed at deterring the Offender’s criminal behaviour, he went after these girls. [ 66 ] There are several aggravating features in the circumstances of these offences which have been described previously and at some length in this decision: the particular vulnerabilities of the victims; the repetitive, ongoing and lengthy period of the abuse; refusing to wear a condom; the young ages of some of the victims; the fact his sons were often home when he brought the girls to his apartment and the decades-older age of the Offender. [ 67 ] The fact that the girls often witnessed the Offender having sex with other girls is also aggravating.

The Manitoba Court of Appeal in the recent case of R. v. L.L.P. , 2016 MBCA 28 stated that it was an aggravating factor that the child victims had to witness the abuse on each other (at para. 34). The effects of vicarious trauma are becoming well-known in legal and social sciences literature and the popular press. [ 68 ] There is only one mitigating circumstance in this case, but it is a significant mitigating factor, that being the Offender’s guilty plea. The very frailties and vulnerabilities of the victims would make going to trial extremely difficult, if not impossible for them.

Some of the victims in this case had difficulty reviewing their statements in preparation for trial. The defence stressed the important interest in promoting guilty pleas in these types of cases. [ 69 ] The sentence must reflect the objectives of denunciation and deterrence.

The Offender’s rehabilitation takes a lesser role in this case, due to his age, his demonstrated persistence in this type of offence against a younger and more vulnerable group of victims after intervention in 2011, and his arguments and comments at the time of sentencing, which demonstrate a complete lack of empathy and understanding of the magnitude of the harm he has done.

He characterized himself as the victim of persistent requests and demands by the victims, emphasized he used no violence, and apologized only to his sons as the ones who were hurt by his behaviour. [ 70 ] The Defence sought a 24-month sentence where only four of the offences would be consecutive, to be followed by three years of supervised probation. [ 71 ] The Crown sought the following consecutive sentences with respect to obtaining the sexual services against each of the seven victims: • SS 2 years • HB 2 years • KE 18 months • HF 18 months • MG 18 months • KJ 18 months • PC 12 months [ 72 ] For the offence of Possession for the Purpose of Trafficking Marijuana, the Crown sought a concurrent 12-month sentence.

The total sentence would be 11 years. The Crown suggested that I could exercise my discretion by taking a “last look” at the sentence for totality and reduce the sentence to eight years. [ 73 ] The sentences suggested by the Crown are likely on the low end, but, in totality the global sentence suggested by her reflects a denunciatory sentence for a pattern of conduct which is mitigated significantly by the guilty plea.

[ 74 ] All of the following sentences for

section 286.1(2) offences are to be served consecutively. [ 75 ] SS was between the ages of 14 and 15 when the Accused sexually exploited her over a six-month period. Her victim impact statement demonstrates the deep and lasting harm the Offender has caused her. The sentence is 18 months. [ 76 ] HB was between the ages of 16 and 17 when the Offender sexually exploited her over a six-month period “too many times to count.” She was extremely vulnerable; he gave her a place to stay when she had nowhere to go – in exchange for unprotected vaginal intercourse and fellatio.

He threw her out when she could not perform to his liking. The sentence will be 18 months. [ 77 ] KE was between the ages of 15 and 16 when the Offender sexually exploited her over a six-month period. The sentence will be 18 months. [ 78 ] HF was exploited over a six-month period when she was 15. She was in Winnipeg to receive therapy after attempting suicide up north. The sentence will be 18 months. [ 79 ] MG was exploited over an 18-month period when she was between the ages of 12 and 14, “too many times to count.” She was addicted to methamphetamine at the time.

The sentence will be 2 years, in light of her extremely young age and the duration of the abuse. [ 80 ] KJ was introduced to the Offender by her mother, a sex trade worker. The Offender started grooming her when she was 13 and then started having sex with her over an 18 month period when she was between 14 and 15 years of age. The sentence will be two years. [ 81 ] PC was addicted to methamphetamine while she was sexually exploited by the Offender on one occasion when she was between the ages of 15 and 16. She entered a detoxification unit on the first day of the trial.

The sentence will be one year. [ 82 ] The sentence for possession for the purpose of trafficking marijuana will be one year concurrent. [ 83 ] The total sentence is 11 years. In taking a “last look” at the sentence, I consider the fact that the Offender has never had a custodial sentence in the past and has been ill with cancer with attendant medical problems that are likely to continue for some time. I will reduce his sentence a further three years for totality, so that the total sentence will be eight years.

I will reduce each of the first six sentences by six months to arrive at that figure. [ 84 ] It should be emphasized that the final reduction in sentence does not reflect a lack of seriousness of any of the offences. I am mindful of the Court of Appeal’s directive to sentencing judges to avoid “jumping” sentence recommendations of the Crown. ( R. v. Beardy , 2014 MBCA 23 at paras. 6 – 7 ). The final sentence is at the low end as well because of the guilty plea.

In this case, with these extremely vulnerable witnesses, the guilty plea significantly mitigates an otherwise much higher sentence. [ 85 ] The sentence will be reduced by the time that the Offender has been in pretrial custody. He has spent 724 days in pretrial custody; when that is enhanced at a rate of 1.5 days for every day spent in custody, it is 1,086 days, or almost three years. The Offender’s pretrial custody will be deemed to be three years, so his sentence will be reduced by three years. He will have five years remaining on his sentence. [ 86 ] There are also several ancillary orders.

The Offender is to have no contact or communication with any of the victims while he is in custody, pursuant to

section 743.21 of the Criminal Code . He is required to provide a sample of his DNA, as

section 286.1(2) is a primary designated offence. There is also a mandatory firearms prohibition pursuant to

section 109 of the Criminal Code for a period of 10 years. He is bound by a lifetime SOIRA order. He is bound by prohibition orders under sections 161(1) (

c) and (

d) of the Criminal Code as follows. Pursuant to section 161(1) (

c) he is to have no contact, including communicating by any means, with a female under the age of 16, unless he does so in the presence of a responsible, sober adult in non-criminal circumstances. Pursuant to section 161(1) (

d) he is prohibited from using the Internet or other digital network for the purpose of locating or luring females under the age of 18 for a sexual purpose. There will be forfeiture of all items seized. [ 87 ] The mandatory Victim Surcharge of $1600 is payable forthwith. Default is noted. It will run concurrent with his sentence. “Original Signed by:” DEVINE, P.J.