Her Majesty the Queen - v. -, 2015 SKPC 121

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 121 Date: August 14, 2015 Information: 44333041, 44663879 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jason Howard McLean Appearing: L. Morelli For the Crown K. Hill For the Accused JUDGMENT ON SENTENCING B.M. SINGER , J Introduction [ 1 ] Mr.

McLean pled guilty to 4 charges of making child pornography; 4 charges of luring, that is communicating via a computer, with a person under 16 years of age, for the purpose of making child pornography; 1 charge of possession of child pornography, 1 charge of extortion by threatening to share intimate pictures with others for the purpose of inducing a child to make child pornography; and lastly, 1 charge of sexual touching of a person under 16 years of age. The charges are all interrelated and involve 4 girls, 13 and 14 years of age.

[ 2 ] The charges were laid in August of 2013. After two days in custody the Accused was released on conditions. On July 22, 2014, he re-elected Provincial Court, and after the charges were amended he pled guilty. Sentencing was adjourned to accommodate the preparation of various reports and to set a date for a sentencing hearing, which commenced June 24, 2015 and concluded the next day with sentencing submissions.

Circumstances [ 3 ] A few months prior to his 17 th birthday, the offender connected, via at least two social media sites on his computer, iPad and iPhone with four separate girls, each 13 or 14 years of age at that time. The charges arose mostly out of communications he had with these girls. He was communicating with them simultaneously and continued to do so after his 18 th birthday. He is charged as an adult with incidents which occurred after he became 18.

His communications with the girls ended when he was charged. [ 4 ] In general, what the Accused did was initiate relationships with each of the girls, separately. Through his texting and theirs, they had conversations which began as friendly, innocuous chats but progressed all the way to explicit sexual exchanges in which he convinced them to send him various photographs and videos of their sexual organs, including photographs of sexual activity such as inserting fingers or objects in their vaginas. In each case, when the girls balked at sending more pictures, he did his utmost to persuade them to continue.

In one circumstance, he threatened to show the pictures he already had, to his friends, to induce one of the girls to send more pictures. In two of the cases he never met the girls and in one he actually met up with one girl, they kissed and he touched her breast. [ 5 ] He was persistent and insistent in his attempts to get more pictures, even when the girls indicated they wanted his texts and his requests to stop. The Accused sent and received many texts, in one case several thousand. These text messages were filed as an exhibit. The pictures and videos, which are child pornography, were also filed as exhibits.

The Accused knew the ages of the girls and eventually they knew his age. The images he received were for his self-gratification. [ 6 ] The charges, as framed, began on October 16, 2013. On April 29, 2014, police seized all the offender’s electronic equipment and he made a lengthy voluntary statement to the police admitting the circumstances and allowing the police free access to his phone, iPad and computer. [ 7 ] No victim impact statements were filed but one victim, who is now 16, reported to the Crown that she still feels awkward about the pictures, and shameful about what the Accused did to her.

She hoped that this would all end and that sometimes she still has trouble trusting individuals. I assume the other victims have suffered harm. [ 8 ] A pre-sentence report was completed and filed. Dr. Nicholaichuk, a psychologist prepared a risk assessment and testified. A letter from the offender’s counsellor and many letters of reference were also filed at the sentencing hearing. Mr. McLean filed letters indicative of family support and community support. At the time of this sentencing he is 20 years of age. He has no prior criminal record and has graduated grade XII.

He is presently fully employed in the family business but hopes to go to university in the future. No charges arose while he was on a lengthy undertaking. [ 9 ] He indicated to the author of the pre-sentence report, and the evidence of the psychologist confirms, that at the time of the offences, he was shy when approaching girls, had minimal interaction with girls his age and found it easier to talk to younger girls. He was introverted and felt an outsider.

He had been the victim of bullying in public school. [ 10 ] The Accused confirmed that he met the young girls through social media and knew they were 13 and 14 years of age. He found it easier to meet girls on his computer. The text messages filed showed little shyness or restraint. Perhaps the distancing effect of text messaging seemed to empower him to present a degree of intimacy and frankness that he was probably unable to sustain in person with girls his own age. The psychologist reports “He did admit to some awareness that he knew it was wrong and not normal.

He said that while he was offending he felt guilty and remorseful. However, at the time he found sexual talk and images exciting and used them for masturbatory purposes. He said it was only after he entered counselling that he realized the seriousness of what he had been doing and came to understand the process by which he groomed and manipulated the complainants and now feels very badly for what he did.” [ 11 ] Since being charged, the Accused has attended to two counsellors. He appears remorseful for what he did. He pled guilty and

has given the prosecutor letters of apology to forward to the victims. He spoke well in Court and now seems to understand the harm he caused. The counsellor indicates her belief that “Jason is very remorseful for his wrongful actions, however did not understand the severity of his coercive behaviour resulting in child pornography charges.” She goes on to say that she now believes that he accepts responsibility, understands the severity of his charges and “has personally grown from this experience.” [ 12 ] Dr. Nicholaichuk is well known to the courts.

His expertise has been relied upon many times to assist courts with the very difficult task of assessing future risk of criminal behaviour. He assessed the Accused as lacking in the characteristics observed in persistent sexual offenders, sexual deviants or criminalized individuals. He rated the Accused as a minimal criminal risk and stated, “… there is a growing amount of evidence which shows that offenders who present with minimal risk are actually made worse with invasive correctional interventions delivered in institutions.” [ 13 ] Dr.

Nicholaichuk goes on to say that for individuals like him, the data shows that effective risk management can be accomplished with low levels of community supervision and treatment. The counsellor, Ms. Tammy Nelson, concludes with her belief that the Accused “does not pose a threat to any individual.” Position of the Crown [ 14 ] The Crown concluded her sentencing submissions by providing the Court with an outline of what she thought would be an appropriate sentence for each of the offences charged, she then totalled those individual sentences and arrived at a sentence of 11.5 years.

The Crown then suggested that this Court apply the principles of proportionality and totality suggesting that an appropriate sentence for this offender on all of the offences would be six years incarceration. In addition she asked for a number of ancillary orders. [ 15 ] The Crown emphasizes the seriousness of the offences and reminds the Court that the purpose of criminalizing child pornography and luring are to protect the most vulnerable of people in our society, our children. As a result, the Court must give primary consideration to deterrence and denunciation.

In calculating the appropriate sentence the Court must be aware of the aggravating factors which, among others, the Crown states are: 1) The offender stopped his activity only when he was caught; 2) He used manipulation and coercion; 3) He had no regard for the children’s well-being; 4) The luring was to produce the child pornography and led to other crimes; 5) In a marathon session of texting lasting 10 or 11 hours he used humour, declarations of love, anger and cajoling and then threatened one victim to induce her to produce further pictures; 6) His goal was solely self-satisfaction; 7) He was fully aware of the children’s ages and youthfulness; 8) There were four victims; and 9)

Section 718.2(ii.1) of the Code proscribes abuse of children under 18 as an aggravating factor. Position of the Defence [ 16 ] The position of the Defence is dramatically different. He describes the position of the Crown as excessively harsh and myopic. He emphasizes that protecting the public should be the Court’s main concern in this sentencing and that as Dr.

Nicholaichuk clearly expressed, putting a low risk individual like the Accused in the penitentiary would likely increase his risk to re-offend. [ 17 ] The Defence suggests that an appropriate sentence must be one that keeps the offender out of the penitentiary and that any sentence over one year in jail would satisfy all of the requirements for deterrence and denunciation and should be followed by three years probation as both Dr. Nicholaichuk and the author of the pre-sentence report recommended a community based sentence.

[ 18 ] The Defence emphasized the youthfulness of the Accused, his lack of any criminal record and his good behaviour while on conditions for the last two years. He refers to the guilty plea and the twofold result that such a plea saved the victims from re-telling their stories and demonstrated remorse.

He also pointed out that at the time he committed these offences the offender was naïve and immature and that since then he has successfully benefitted from counselling and is now profoundly remorseful for his thoughtless behaviour. [ 19 ] The Defence says that there is little risk that he will offend again and the evidence supports that view. He suggests that the important principles involved in sentencing a youthful first-time offender are specific deterrence and rehabilitation (neither of which is required in this case).

He suggests the circumstances of the case are not the most serious, the age difference between the offender and the victims was not great and certainly their maturity level was not far off. The offences began when the Accused was a youth but that since he was charged, he has done everything he could on his own to make his behaviour change.

He has a supportive family and friends who knowing of the charges still back him up with letters of support and continued friendship. [ 20 ] Having seen the Accused and heard his statement in Court and having read his letters of apology to the victims, I believe his remorse is sincere and he truly hopes that the young girls will have a bright future. Analysis [ 21 ] The fundamental principle of sentencing is that a sentence must be proportionate to both the gravity of the offence and the degree of responsibility of the offender.

Proportionality is intimately tied to the fundamental purpose of sentencing – the maintenance of a just, peaceful and safe society through the imposition of just sanctions.

In some cases the Court has to emphasize the gravity of the offence, that is denunciation, in order to promote justice for victims and ensure public confidence in the justice system, but at the same time, the judge must ensure that the sentence does not exceed what is appropriate given the moral blameworthiness of the offender. [ 22 ] The Supreme Court has said about proportionality, “In a sense, the principle serves as a limiting or restraining function and ensures justice for the offender.

In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.” [1] The Effect of Mandatory Minimum Sentences, and Emphasis on Deterrence and Punishment Have on Proportionality [ 23 ] The charges of possession of child pornography, making child pornography and luring all attract minimum sentences. By their very nature, mandatory minimum sentences have the potential to depart from the principle of proportionality in sentencing.

They emphasize denunciation, general deterrence and retribution at the expense of what may be a fit sentence. “They function as a blunt instrument that may deprive the courts of the ability to tailor proportionate sentences at the lower end of the sentencing range.” [2] [ 24 ] Thus deterrence, denunciation and retribution, in these cases, are built into the range of available sentences; that range in this case begins at one year and nothing less. [ 25 ]

Section 718.01 of the Criminal Code says that the primary consideration of the Court, when sentencing, should be denunciation and deterrence, where the offence involves abuse of a child. The Court may, of course, still give consideration to the other sentencing principles outlined in the Code , but must give them secondary importance. [ 26 ] General deterrence is thought to discourage others from committing offences. “General deterrence is intended to work in this way: potential criminals will not engage in criminal activity because of the example provided by the punishment imposed on the offender.

When general deterrence is factored in the determination of the sentence, the offender is punished more severely, not because he or she deserves it, but because the Court decides to send a message to others who may be inclined to engage in similar criminal activity.” [3] [ 27 ] However, as McLachlin C.J. pointed out in Nur , [4] “Doubts concerning the effectiveness of incarceration as a deterrent have been longstanding.” In the end result, while the Court can give primary consideration to deterrence, and general deterrence can support a

sentence that is more severe than a strictly proportional sentence might be, it cannot direct a sentence that results in a term of incarceration outside the bounds of being a just sanction. The fact that mandatory minimum sentences are required for the bulk of these offences, guides this Court to craft a sentence that must be no less than one year but is still a just sanction. [ 28 ] Denunciation and retribution are also primary considerations in this case.

But again they are built in to sentences that are required to meet the mandatory minimum, because mandatory minimum sentences by their nature may violate the principles of proportionality. “They modify the general process of sentencing which relies on the review of all relevant factors in order to reach a proportionate result”. [5] However, because child pornography, by its very nature, is harmful; it is degrading and dehumanizing.

It eroticizes children and emphasizes their inferior social, economic, and sexual status. “It preys on existing inequalities.” [6] Special consideration must be given to society’s revulsion of this type of behaviour. The Court denounces child pornography and luring to prevent degrading and exploitive conduct which not only harms children but defiles the goals of a “just, peaceful and safe society.” [7] Other Sentencing Principles to be Applied [ 29 ] This sentence must also, though in a secondary way, take into account applicable sentencing principles as outlined in 718.2 of the Code .

For instance it must be similar to sentences imposed upon similar individuals in similar circumstances. I appreciate the cases filed by the Crown and Defence and while acknowledging that none of them were exactly similar to the matter before me, they provide guidance. [ 30 ] In addition, this sentence must take into account totality, that is, where consecutive sentences are imposed the combined sentences should not be unduly harsh. The basic position is that where there is no relationship between the separate commissions of criminal offences the Court should impose a consecutive sentence.

In Saskatchewan the guiding principles are outlined in R v Agecoutay and R v Droain [8] , where among other considerations the Court suggested concurrent sentences are typically imposed where such an approach is necessary to avoid an overall sentence which is unduly long or harsh.

In Jewell [9] , the Ontario Court of Appeal said that the appropriate approach was to identify the gravamen of the conduct that gives rise to all of the offences and determine the appropriate total sentence to be given, then impose sentences which result in that total and “Which appropriately reflect the gravamen of the overall criminal conduct .” [10] For instance in this case; the luring charge was subsidiary to the production of child pornography and the extortion was for the same purpose. Each offence led to the other with the primary object the production of pictures which were child pornography.

All of the offences involving each of the young girls took place at the same time, in the same manner and for the same purpose. The sentence imposed will involve primarily concurrent sentences because of their similarity and because of the principle of totality. I reject the approach of the Alberta decisions filed. It is not the law in Saskatchewan that where consecutive sentences are imposed, the judge should determine the appropriate sentence for each offence, total them then reduce each so as to arrive at a total sentence that meets the objects of totality.

The appropriate sentence should be determined first and the individual sentences are then adjusted to realize the sentence that is just. [ 31 ] An offender must not be deprived of his liberty if less restrictive sanctions are available. As these offences involve mandatory minimums, this principle applies to the extent that I should craft a sentence that involves sanctions other than incarceration to the extent that they are appropriate plus incarceration, if such a sentence is available.

In other words, in a case such as this where a youth has “learned from his mistakes”, but still requires further rehabilitation, then a sentence that allows me to add probation to his carceral sentence may be appropriate. That is what I intend to do in this case. [ 32 ] Other sentencing factors have also been taken into account. The positive pre-sentence report, the report of Dr. Nicholaichuk which outlines the offender’s low risk to re-offend, the letter from the offender’s counsellor and the letters of support from his family and friends are all impressive.

The fact that he was 17 when these offences commenced and that he was, while an 18 year old adult, immature and naïve when they took place is also a factor. His genuine remorse confirms for me his low risk to re-offend. Conclusion [ 33 ] I believe that a sentence to the penitentiary would be crushing. I believe that a sentence of 2 years less 1 day followed by 3 years probation would reflect an appropriate sentence that promotes a just, peaceful and safe society. He does require continued counselling and direction that is available through probation to allow him to continue his growth and maturity.

I am mindful of the harm he caused, as is he, but I do not think any greater deprivation of his liberty is required to deter others and denounce his behaviour, which is my primary goal in this case.

[ 34 ] His actual sentence will be as follows: For each of the counts of making child pornography 2 years less one day followed by 3 years probation, concurrent with each other; for each of the charges of luring, 2 years less one day plus 3 years probation, concurrent with each other and with any other sentence; for the charges of possession of child pornography and the charge of extortion, 1 year in jail concurrent with each other and all other charges; and lastly for the charge of sexual touching, a sentence of 6 months concurrent to all other sentences.

On each charge there will be a surcharge of $200.00 for a total of $1,800.00 to be paid or worked off on fine option by December 2018. The terms of the probation will be the statutory conditions to keep the peace and be of good behaviour, report to Court when required to attend, 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.

Further you are to report to a probation officer within three working days of your release from jail; reside at a residence approved by your probation officer and not change your residence without the permission of your probation officer; have no contact of any kind, in any way, directly or indirectly with any of the named victims; not be at the residence, workplace or place of education of any of the named victims, participate in assessments and complete programming if directed for sexual offending and personal counselling; seek and maintain employment or educational programming as directed; have no contact directly or indirectly with any person under the age of 16 unless you are in the company of an adult who has been approved by your probation officer; not go to a public park, public swimming area, where persons under the age of 16 years are present or can reasonably be expected to be present, or a school ground, daycare centre, community centre except in the company of a sober adult who is aware of your charges; not obtain or continue employment or be a volunteer in any capacity that involves a position of trust or authority towards persons under the age of 16 years; not to use a computer system for the purposes of communicating with a person under 16 years of age; and not to own, possess, access or use a computer, portable wireless device, smart phone, cell phone or any similar device that is capable of accessing the internet, except a standard use cell phone and except as may be required for your employment or education and after you first obtain written permission from your probation officer. [ 35 ] And in addition there will be an order that he supply a sample of his D.N.A. to the Saskatoon City Police at their convenience, and that he register with the authorities of the S.O.I.R.A.

Program upon his release and to be in that program for the mandatory period of life. Dated at the City of Saskatoon this 14 th day of August, 2015. ___________________________ B.M. Singer, J