r v. WILLIAM OSADCHUK, 2020 QCCQ 2166

R. c. Osadchuk 2020 QCCQ 2166 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF DRUMMOND TOWN OF DRUMMONDVILLE “Criminal and Penal Division” N° : 405-01-041960-195 DATE : June 2, 2020 BY THE HONOURABLE DANIELLE CÔTÉ, J.C.Q. LA REINE Prosecutor v. WILLIAM OSADCHUK Accused JUDGMENT [ 1 ] “Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserved to enjoy a childhood free of sexual violence.

Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year.” [1] [ 2 ] Having this in mind, what is a fit and appropriate sentence for a 35 year old man who was found guilty of child luring [2] and communicating with a person, for the purpose of obtaining for consideration, the sexual services from a person under 18 years [3] . [ 3 ] Considering the need to emphasize denunciation as well as deterrence, the numbers of aggravating factors and the absence of mitigating ones, the Crown suggests a sentence of 27 months of incarceration [4] .

The Crown concedes that the Court should deduct the pretrial detention at a rate of 1.5 days for 1 day, thus reducing the sentence to 15 months as of today [5] . [ 4 ] Insisting on the peculiar circumstances of this case, which is not a classic child luring case, the fact that the accused has serious cognitive limitations [6] and that, according to the sexological expertise in sexual delinquency, there is no indicia of hebephiliac [7] and, therefore, no risk of recidivism as regards to children, defense suggests that time served is the appropriate sentence.

OBJECTIVE GRAVITY [ 5 ] The offence of communicating with a person for the purpose of obtaining, for consideration, the sexual services from a person under 18 years, is punishable by a minimum of six months of imprisonment and up to a maximum of ten years [8] . [ 6 ] The offence of child luring is punishable by a maximum of 14 years of incarceration and a minimum of one year [9] .

CONTEXT [ 7 ] At trial, the essential facts were not contested. [ 8 ] The accused is arrested during a sting operation by undercover police officers offering escort services on three different websites, two of them only promoting sexual services. [ 9 ] That day, the undercover officer received 17 text messages asking for information. In 12 of these messages, she mentioned that she was 16 years old. 11 “clients to be” declined to go further after receiving that information.

The accused is the only one who continued the conversation with the undercover officer. [ 10 ] The accused texted the phone number listed in an ad, on Humpchies website, posted by “Arielle”. Arielle was an undercover officer. He inquires about prices and services offered and, in the course of the text conversation, Arielle mentions that she is sixteen years of age. The accused’s reaction to this information is “ Awe okok?? ”. [ 11 ] The conversation goes on and, after agreeing on a price, the accused is lured in a hotel room where he meets with the undercover police officer.

[ 12 ] During the conversation, which lasted at most three minutes, the undercover officer asked the accused if and why he was excited about the fact that she was sixteen? He replied: « oui parce que tu es serrée ». [ 13 ] Afterwards, the undercover officer goes to the bathroom and other officers enter the hotel room to arrest the accused who, then, is sitting on the bed with his pants down. THE ACCUSED PERSONAL SITUATION [ 14 ] The accused is 35 years old and single.

At the time of the offence, he was unemployed and lived with his father. [ 15 ] He still lives with his father, does not have friends, and his only significant relationship is with his sister who lives in Toronto. [ 16 ] In 2006, he received a suspended sentence for 2 counts of sexual assault and, in 2012, he was sentenced to one day in jail for sexual assault and forcible confinement, this sentence being the equivalent of a 9 months and a half sentence because of the pretrial detention. [ 17 ] It appears from the sexological expertise in sexual delinquency that the accused minimizes both convictions: as for the one in 2006 he affirms that he did not commit the sexual assault, that this offence was committed by a friend who was with him and, therefore, denies any criminal responsibility. [ 18 ] As for the one in 2012, according to the accused, the victim was a prostitute from an escort agency.

There was a disagreement between them and he gripped the victim to bring her in his car but he fell and the victim escaped. He pretends that the victim is in part responsible for these events. [ 19 ] The accused has other previous convictions: impaired driving, refusal to comply with a breathalyzer demand, assault, uttering threats, driving while prohibited and breaches of probation.

a) The Presentence Report [ 20 ] The probation officer notes that the accused participated in two sex offender programs, one in 2013 and the other one in 2015. It appears that the last one was completed with success. [ 21 ] Before his arrest, the accused had an appointment with a psychiatrist but, because of his arrest, he could not make it. [ 22 ] According to the report, it is difficult for the accused to communicate with people and express his needs. It is also difficult for him to understand other people’s reactions.

The probation officer thinks that the recent psychiatric report which concludes to the possibility of a diagnosis of autism spectrum disorder [10] could explain this situation. [ 23 ] Emotional deficiencies related to childhood experiences and learning problems caused by serious cognitive limitations are probably at the root of the accused peculiar way of satisfying his sexual desires via escort websites. [ 24 ] The probation officer acknowledges that the accused is willing to enter in a psychiatric therapy but insists that this avenue will be long.

He should also, according to the officer, enter sexological and/or psychological therapies in order to better channel his sexual impulses. [ 25 ] He concludes that because of the long road ahead, the risk of recidivism is present.

b) The Sexological Expertise in Sexual Delinquency [ 26 ] In his youth, the accused interactions with girls were always limited by his shyness, peer rejection and low self-esteem. This culminated in his incapacity to feel at ease with them. [ 27 ] At age 18, he had his first sexual intercourse with a nude dancer met in a bar. From this point on, he started using escort services at least once a month.

He also masturbates three to five times a week and regularly accesses pornographic adult websites. [ 28 ] As previously mentioned, the expert concludes that there is no indicia of hebephiliac but as regards to the internet, there is a moderate risk that the accused continues to use the internet to satisfy his sexual impulses. [ 29 ] As he does for his previous convictions related to sexual matter, the expert observes that the accused minimizes his criminal liability.

He affirms that the undercover officer looked 24-25 years to him, that he did not believe her when she told him that she was 16, that she seduced him and that she smiled at him. When this occurs, it’s hard for him, he says, to turn away. [ 30 ] The expert submitted the accused to two sets of tests in order to evaluate the risk of recidivism. When combining the results of both tests, he is of the opinion that there is a high risk of recidivism in relation to adult victims but not for minors.

PURPOSE AND PRINCIPLES OF SENTENCING [ 31 ] The fundamental purpose of sentencing is to protect society and to contribute to respect for the law and the maintenance of a just, peaceful and safe society [11] . [ 32 ] This purpose can be attained by imposing just sanctions that have one or more of the following objectives: “ dénonciation, dissuasion générale et spécifique, neutralisation, réinsertion, réparation et prise de responsabilité” [12] . [ 33 ] In furthering these objectives the Court must consider many principles, rules and factors to properly exercise its discretion in assessing the just sentence.

That said, the fundamental principle remains that a sentence must be proportionate to the gravity of the

offence and the degree of responsibility of the offender [13] .

Or, as one could say, the sentence imposed must be “ just and appropriate …, and nothing more” [14] . [ 34 ] The sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender [15] . [ 35 ] A sentence should be similar to sentence imposed on similar offender for similar offences committed in similar circumstances (the principle of parity) [16] and, where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh [17] . [ 36 ] An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances [18] . [ 37 ] Finally, when the crime is an offence involving an abuse of a person under the age of eighteen years, the Court shall give primary consideration to the objectives of denunciation and deterrence of such conduct [19] .

LA JURISPRUDENCE [ 38 ] In Rayo [20] , the Quebec Court of Appeal reviewed the sentences imposed for child luring: ranges are between 12 to 24 months, and sentences of 12 months are regularly imposed when the child luring occurs in the course of a sting operation. [ 39 ] At the outset, it seems relevant to emphasize that the Supreme Court of Canada has repeatedly stated that sentencing ranges are guidelines and not hard and fast rules [21] . [ 40 ] In Rayo , the trial judge incarcerated the accused for 12 months after a trial in which he was found guilty of making sexually explicit material available to a child, invitation to sexual touching, production and possession of child pornography and child luring.

The accused was 33 years and the child 12. [ 41 ] The Court of Appeal increased the global sentence to two years and stated that the sentence for child luring had to be consecutive to the sentences for the other crimes. [ 42 ] The Court concluded that different societal interests were sought to be protected by each of the offences and, moreover, that the trial judge erred in concluding that the offences were part of the same transaction, therefore the sentence for child luring had to be consecutive to the other crimes. [ 43 ] Since that judgment, the Supreme Court of Canada sent “ a strong message that sexual offences against children are violent crimes that wrongly exploit children’s vulnerability and cause profound harm to children, families and communities.

Sentences for these crimes must increase” [22] . [ 44 ] In this decision, a unanimous Supreme Court provided statement of principles to guide the courts in assessing a fit sentence for crimes involving children.

The Court expressly stated that these principles have relevance to sentencing for child luring [23] . [ 45 ] Amongst those principles, the more relevant to the case at bar are: - Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code [24] ; - Courts need to take into account the wrongfulness and harmfulness of sexual offences against children when applying the proportionality principle [25] ; - As regards the gravity of the offence: Courts must impose sentences that are commensurate with the gravity of sexual offences against children.

It is not sufficient for courts to simply state that sexual offences against children are serious [26] ; - Courts must give effect to the moral culpability of the offender in sentencing even when the facts giving rise to the conviction involve a police sting operation rather than a child victim [27] ; - Although the absence of a specific victim is relevant, it should not be overemphasized in arriving at a fit sentence. The accused can take no credit for this factor [28] ; - Parliament has mandated that sentences for sexual offences against children must increase.

Parliament has expressed its will by increasing maximum sentences and by prioritizing denunciation and deterrence in sentencing for sexual offences against children [29] and thus limiting the discretion of sentencing judges to prioritize other objectives. DISCUSSION [ 46 ] As pointed out by the Crown, even if there is only one occurrence, it remains that the accused did not hesitate long before deciding to go along after being informed that “Arielle” was 16 years.

And as soon as he entered the room, he was eager to touch her and seemed quite excited. [ 47 ] As noted in the sexual expertise in sexual delinquency, even if there is no indicia of hebephiliac, it remains that the accused continued the conversation with “Arielle” and one has to conclude that this information in this particular context excited him. [ 48 ] As pointed out by the Crown, there are numerous aggravating circumstances: his previous record which, amongst others, contains three previous convictions for sexual assault and one for forcible confinement, his actions constitutes an abuse of a person under the age of eighteen years [30] , there is a risk of recidivism, albeit not as regards to children.

[ 49 ] As for the mitigating factor, the Crown’s position is that there is none. [ 50 ] With respect, the Court disagrees. [ 51 ] It is well settled that personal circumstances of an offender can have a mitigating effect and that “offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability” [31] .

This is the case at bar. [ 52 ] The accused has a history of psychiatric evaluation but, for the first time, in November 2019, there is a possible diagnosis of autism spectrum disorder with serious cognitive limitations. [ 53 ] As previously mentioned, his interactions with girls were always limited by his shyness, peer rejection and his low self-esteem.

This, with the addition of the possible diagnosis abovementioned, could explain why in his adult life his only mean to satisfy his sexual impulses is the use of escort services. [ 54 ] It is a fact that the accused does not take full responsibility and minimizes his responsibility: but we must factor in that his sexual interest is not for children and that it is the first time that he was confronted with such a dilemma. [ 55 ] Having regard to the peculiar circumstances of this case, as opposed to an adult who deliberately sets about to lure a child, the moral blameworthiness of the accused is diminished [32] . [ 56 ] The facts in Rayo are much more disturbing and the blameworthiness of the accused is this case is much higher.

The same can be said of all the jurisprudence cited in that judgment. [ 57 ] Let us give some examples: sexual conversation during two months with a police officer pretending being 14 years old [33] , creating a false identity on Facebook and luring a child of 14 years old [34] , communicating with a police officer posing as a 14 year old girl for a period of two months, emailing her a photo of his penis and culminating to a meeting in a park where the accused was arrested [35] , communicating with a police officer posing as 14 years of age during a period of three weeks, convincing her to send intimate pictures and sending her a video of himself masturbating [36] . [ 58 ] There is a common thread in these cases: the accused embarked on a systematic process of grooming a young person for sexual activity or to facilitate commission of a sexual assault. [ 59 ] Here the accused did not embarked on such a course of action, he was not seeking sexual relations with a minor at first, his crime is contextual and, therefore his blameworthiness is much lower that the accused in the cases cited above. [ 60 ] Of course, having in mind the strong message sent by the Supreme Court of Canada, one has to conclude that the range of sentences in these cases would now be higher. [ 61 ] Considering the need to emphasize denunciation as well as deterrence, the numbers of aggravating factors, the objective gravity of the offences, the peculiar circumstances of this case, the possible diagnosis of autism spectrum disorder, the serious cognitive limitations of the accused, the absence of indicia of hebephiliac and, thus, the absence of recidivism in relation to children, the willingness of the accused to enter therapies to improve his social skills and improve his attitude in relation to his sexual impulses, having in mind the proportionality principle, a global sentence of 18 months is in line with the purpose and principles of sentencing: the minimum sentence of 6 months for the communication charge and the minimum sentence of one year for child luring, this one being consecutive. [ 62 ] As previously noted, the accused must be credited for 8 months in pretrial custody, calculated at a ratio of 1.5, 12 months should be deducted, thus reducing the sentence to 6 months as of today.

FOR THESE REASONS, THE COURT: SENTENCE the accused to one day in jail on count one; SENTENCE the accused to six months in jail on count two, consecutive to sentence on count one; ORDER the taking of the number of samples of bodily substances from the accused that is reasonably required for the purpose of forensic DNA analysis pursuant to

section 487.051 of the Criminal Code ; ORDER the accused to comply with the Sex Offender Information Registration Act for his lifetime; ORDER that the accused be subject to a probation order for a period of two years during which period he shall: 1. Keep the peace and be of good behaviour; 2. Appear before the court when required to do so by the court; 3. Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation; 4.

Report to a probation officer within seven days of his liberation from prison and, thereafter, when and in the manner required by the probation officer; 5. Abstain using internet for sexual purposes; 6. Participate actively in psychiatric, sexological and/or psychological therapy suggested by his probation officer;

DANIELLE CÔTÉ, J.C.Q. M e Kevin Mailhiot Prosecutor M e Robert Bellefeuille For the Accused