R. v. D.A., 2024 MBKB 7

Date: 20240119 Docket: CR 23-01-39445 (Winnipeg Centre) Indexed as: R. v. D.A. Cited as: 2024 MBKB 7 COURT OF KING’S BENCH OF MANITOBA B E T W E E N: HIS MAJESTY THE KING, ) Joel Refvik for the Crown ) ) - and - ) ) D.A., ) Shimon Segal ) for the Accused Accused. ) ) ) JUDGMENT DELIVERED: ) January 19, 2024 Restriction on Publication : Pursuant to s. 486.4 of the Criminal Code, any information that could identify the complainant, accused or any witness shall not be published in any document or broadcast or transmitted in any way in proceedings in respect of this offence. SENTENCING McKELVEY J. I.

INTRODUCTION [ 1 ] The offender has pled guilty that he did on or about September 6, 2020, in the City of Winnipeg communicate with the complainant, a person who he believed to be under the age of 16 years, by means of a telecommunication for the purpose of facilitating the commission of the offence of invitation to sexual touching with respect to that person contrary to ss. 172.1(1) (

b) and 172.2 (

a) and (

b) of the Criminal Code (child sexual luring). The sections read: 172.1

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

(

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

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

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

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

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

b) is guilty of an offence punishable on

summary conviction and is liable to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months. [ 2 ] The breadth of this

section of the Criminal Code has been well set out in the recent Supreme Court of Canada’s decision of R. v. Bertrand Marchand , 2023 SCC 26 . In that decision, the Supreme Court struck down the mandatory minimum sentence for child sexual luring: [169] …when it imposes a mandatory minimum sentence for a given offence, which applies to all cases without discretion or discernment, it runs the risk of creating a grossly disproportionate and unconstitutional penalty.

Exceptionally broad offences, even inherently serious ones, can be committed in a variety of ways and with different levels of harm and moral culpability. A predatory adult who communicates by means of telecommunication over a long period of time to manipulate a child for the purpose of facilitating one of the secondary offences in s. 172.1(1) may well merit a custodial sentence considerably in excess of the mandatory minimum.

On the other hand, there will be cases in which the gravity of the offence and the degree of moral blameworthiness of the offender may not merit a custodial sentence at all — and in which the public would be shocked to hear that a legislated period of imprisonment automatically applies. II. CIRCUMSTANCES OF OFFENCE [ 3 ] The offender and complainant were acquaintances through a mutual peer group. The complainant, age 15 years, and the offender, 21 years of age, interacted during the summer and in to the fall of 2020.

On September 6, 2020, the offender communicated through Instagram with the complainant by sending a number of messages which included, “I was gonna ask if you could suck it last night when I grabbed my sweater but didn’t know if you would of got mad” and, “If I asked to take your virginity what would you do?”. The offender also asked the complainant to “move” their conversations to Snapchat. The Snapchat application allows senders to text or direct photos/videos which can only be viewed once and will then disappear from the recipient’s device in a short period of time.

The Instagram messages were provided by the complainant to the Winnipeg Police Service. III. THE OFFENDER [ 4 ] The offender has no prior adult convictions. That said, he was convicted as a youth of sexual assault and sentenced to a two-year probationary term on April 19, 2018. The circumstances were that sexual contact occurred when he was 15.5 years, while the complainant was 13 years of age and, hence, too young to consent to sexual intercourse. He had completed the two-year probationary term a short time prior to his September 6, 2020 communications with this complainant.

The offender has been bound by a number of court-mandated conditions with respect to his judicial interim release. There is no indication of non-compliance with those conditions. [ 5 ] The Pre-Sentence Report (“PSR”) dated December 5, 2023, compiled by Probation Officer Jenn Ross, included the offender’s comments that he had communicated with the complainant over Instagram for approximately one year and had engaged in “friendly and casual conversation”, which sometimes became “flirtatious”. They had met through acquaintances in their mutual peer group.

The affiliation with the peer group resulted in the offender’s assumption that the complainant was older than was actually the case. He contends that the age issue was never discussed and only learned by him subsequent to his arrest. The offender clearly failed to exercise due diligence to learn or ask the complainant’s age. This is particularly concerning given he had just completed a two-year probationary term for a conviction founded on age/consent issues. [ 6 ] The PSR outlines the offender’s childhood, which reflects stability, good health and an absence of violence or addictions issues.

His family is supportive, and a positive employment history is noted. That said, he has, at times, displayed depression and anger management issues which might be related to ADHD and cognitive deficits. As a consequence of the charges before the court, the offender has re-connected with the psychologist who had assisted him as a youth to deal with those issues (Dr. Garry W. Fisher). [ 7 ] The offender provides financial assistance for his three children who are in the custody of his ex-partner.

The ex-partner regards him as a good father to their children and not an individual who is physically or sexually abusive. The offender resides at home with his mother and had been engaged in full-time employment until this conviction. [ 8 ] The offender describes his alcohol consumption as casual and social. Further, he uses marihuana sparingly when he has difficulty sleeping. His social contacts provided positive insight into the offender’s character. He underwent Static-99R testing to assess his sexual offending risk.

The offender has been adjudged to be an average risk for being charged or convicted of another sexual offence and a very low risk to reoffend generally. [ 9 ] The probation officer noted that the offender takes full responsibility for his offending behavior, albeit believing the complainant was over the age of consent. That said, he accepts the consequences for his violation of the law. He was found to have little insight into the precursors of his behavior and no awareness of the impact his behaviours have had or may have had on the complainant.

As a consequence, specific rehabilitation programming was recommended by the probation officer, being a sexual offence intervention program.

[ 10 ] A psychology report was prepared through the St. Amant Centre on May 23, 2017. The offender, then 18 years of age, had been referred for an assessment of his intellectual abilities and adaptive behaviour in order to determine his level of functioning related to eligibility for Community Living DisABILITY Services. The assessment results were varied, with many of the tests falling within the average range, low average range, borderline range, and one falling within the extremely low range.

The report also notes that the offender is easily upset and will verbalize his distress which ultimately may lead to a physical altercation. [ 11 ] A December 6, 2023 report was prepared by Dr. Garry W. Fisher, psychologist, for assessment purposes. Dr. Fisher is familiar with the offender because of their prior contact. Dr. Fisher indicated that there are no outstanding issues, developmental concerns or with regards to the offender’s community functioning. The offender reported to Dr. Fisher that he had previous ADHD and learning disability diagnoses while in school.

Again, with respect to the luring conviction, Dr. Fisher notes that the offender accepts responsibility, but contends he was unaware of the complainant’s age and, hence, felt that their interaction was consensual. The offender is described as remorseful in not ensuring confirmation of the complainant’s age. [ 12 ] Dr. Fisher engaged in a number of testing modalities which indicated that the offender’s overall functioning falls within the borderline range, albeit, with a high degree of variability across different processing areas with relative strengths and weaknesses. Dr.

Fisher stated (at pp. 3 and 4): In general, [the offendor] affords an overall clinical impression of a relatively well-meaning but somewhat naïve young adult. He seems well aware of the wrongfulness of the decision making as it pertains to his recent offending, and also presents as a genuinely remorseful individual who regrets his involvement with his victim. It is likely that a sense of naivety arises from tending to be somewhat overly trustful in the context of relationships with friends, and is also impacted by cognitive processing and executive functioning limitations.

From a risk management perspective, he presents as a suitable individual for community-based supervision. It is suggested that sexual offender programming, potentially available through Community Probation Services should provide some assistance in enhancing his level of insight and understanding of issues such as “consent”. Our office can continue to be available to him for counselling support and sexual offender-based programming upon request.

There is no information to suggest that he had deliberately targeted a young individual with regard to his current offense, and he appears to have established a better understanding of his need to be “more careful” in his pattern of social interactions. IV. VICTIM IMPACT STATEMENT [ 13 ] The complainant did not prepare a victim impact statement and, consequently, the specific harm and impact of the offender’s conduct upon her at this time is unknown. V.

CROWN SUBMISSIONS [ 14 ] The Crown is seeking a three-year incarceratory sentence founded on the nature of the offending conduct and the Supreme Court’s dictates in cases such as R. v. Friesen , 2020 SCC 9 and Bertrand Marchand with respect to the need to increase sentences regarding sexual offending against children. The Crown also submits that the offender should have been well aware of the requirement to ascertain the complainant’s age given the proximity in time to the serving of a probationary term for his youth conviction.

Further, the offender requested that the complainant move their conversation to Snapchat in order to hide the content because of the self-destructing function of that website. Other areas highlighted by the Crown included: • the offender does not know if he caused harm to the complainant; • the offender does not recognize that he could cause harm to the complainant or contemplate its seriousness; • the offender was not completely forthcoming with the probation officer who prepared the PSR, as he indicated all his past sexual experiences had been consensual (p. 10).

The offender did not disclose his youth conviction; • a grooming factor could be considered; • this offence is serious, even without physical contact; • there is no mental illness aspect of this case as was present in the R. v. J.M.O. , 2017 MBCA 59 decision and considered in Bertrand Marchand at para. 159 . [ 15 ] The Crown submission is based on the facts of the case, the accused’s youth criminal record, the involvement of a child, denunciation and deterrence, and the Manitoba Court of Appeal’s sentencing range for child luring as outlined R. v. Sinclair , 2022 MBCA 65 .

The range in Sinclair stipulated three to five years’ incarceration for internet child sexual luring (para. 62). The Crown submitted that a conditional sentence order would not be an appropriate determination and is not available in these circumstances. V. DEFENCE SUBMISSIONS [ 16 ] Defence counsel is seeking a conditional sentence order (CSO) of three to 12 months in duration to be followed by a period of probation. This submission is founded on the fact that the offender has been assessed as a very low risk to reoffend, along with an average sexual offending reinvolvement score (PSR). Additionally, Dr.

Fisher and the St. Amant Centre reports have recognized that the offender lacks insight into his behaviour and exhibits “borderline” cognitive functioning. As a consequence, the dictates of J.M.O. must be evaluated with respect to an offender’s reduced moral blameworthiness where a mental illness or some other form of cognitive limitation is established. It is argued that, unquestionably, these considerations have been triggered because of the identification of

cognitive limitations through the two psychological reports. This includes the fact that the offender has exhibited a low level ability torationalize his behavior with impulse control issues. [17] The defence relies upon the decision of Provincial Judge Devine in R. v. Dew, 2023 MBPC 42. The Dew decision involved a 44-year-old offender who was found guilty, after trial, of a luring offence. The complainant in that case was 15 years of age with the factscenario illustrative of a trust relationship and grooming behaviour. The sentence in Dew was a 12-month CSO to be followed by twoyears of supervised probation.

The defence submits that the fact situation in Dew is significantly more egregious than what hastranspired in this case, and, accordingly, a CSO is an appropriate sentencing option. At this juncture, the Dew decision is under appealwith respect to the sentence imposed (AR 23-30-09984). [18] The Sinclair decision was distinguished by defence counsel as reflecting enhanced offending/luring conduct which is not presentin this case.

The facts in Sinclair involved a number of children, 86 images on the accused’s cell phone, child pornography andgrooming behavior resulting in a five-year term of incarceration. [19] The defence further contends that, while a guilty plea to the offence of child luring was appropriate, the two involved individualswere just outside of the near in-age provision of the Criminal Code in terms of their age difference. The exception under s. 150.1(2.1) isthat consent can be valid in circumstances where the accused is less than five years older than the complainant.

While still a crime, theseparation in age is very different than the scenarios that existed in Dew and other relevant cases. [20] The defence also submits that the offender: • has a learning disability and borderline cognitive functioning; • is able to mask his true level of functioning; • has cognitive issues and was with a peer group of friends, including the complainant who were younger than his chronologicalage; • did not groom the complainant; • has a reduced moral culpability with an overall low risk assessment for reoffending; • these were not anonymous contacts. VI.

THE PURPOSE, OBJECTIVES AND PRINCIPLES OF SENTENCING [21] The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and themaintenance of a just, peaceful, and safe society by imposing just sanctions. [22] A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A child-relatedsexual offence is grave as has been well set out in many decisions, including Friesen and R. v. D.(D.), (ON CA),(2002) 58 O.R. (3d) 788 (CA).

These decisions recognize that significant sentences need to be imposed for child-related sexualoffending as consequential harm may be caused. The Bertrand Marchand decision further accentuates the wrongfulness of child luringand the trauma created (paras. 34-45, 48). The need to increase sentences over what was previously the case is also documented incurrent Supreme Court of Canada cases with respect to offending behaviour against children (paras. 46-47). [23]

Section 718 of the Criminal Code sets out a number of objectives a sentencing judge should bear in mind when sentencing. Theobjectives of the sentence in this case include: • denouncing unlawful conduct; • deterring the offender and other persons from committing offences; • assisting in rehabilitating the offender; • promoting a sense of responsibility in the offender, and acknowledging the harm done to the complainant and to thecommunity. The principles of denunciation and deterrence are paramount in these types of cases (see R. v. Schofield, 2023 MBKB 127 at para. 31).

Iam also guided by the sentencing principle set out in s. 718.2(a)(ii.1) of the Criminal Code which recognizes as an aggravating factor theevidence that the offender, in committing the offence, abused a child. [24] A sentence should be increased or reduced to account for any relevant, aggravating or mitigating circumstances relating to theoffence or the offender. [25] The mitigating factors in this case include that the offender: • pled guilty and made it unnecessary for the complainant to undergo the trauma of testifying; • is remorseful; • is taking counselling to prevent a reoccurrence of the offence; • has no prior adult criminal record;

• has abided by all conditions of his judicial interim release; • has a supportive family; • had regular employment; [ 26 ] The aggravating factors in this case include that the offender: • took advantage of a young complainant; • showed disregard for the harm he has caused or potentially has caused; • has a youth conviction for sexual assault involving an age of consent issue. [ 27 ] A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.

Friesen provided guidance to sentencing judges involving sexual offending against children: [5] … we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase.

Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.

The Friesen decision sets out that sexual offences against children engenders significant harm with adverse impacts that may hinder normal social growth and cause lasting psychosocial problems. Emotional trauma can be presumed in sexual abuse/exploitation cases. As stated in Friesen : [81] Sexual violence against children also causes several forms of long-term harm that manifest themselves during the victim’s adult years. First, children who are victims of sexual violence may have difficulty forming a loving, caring relationship with another adult as a result of the sexual violence.

Second, children may be more prone to engage in sexual violence against children themselves when they reach adulthood ( Woodward , at para. 72; D. (D.) , at paras. 37-38 ). Third, children are more likely to struggle with substance abuse, mental illness, post-traumatic stress disorder, eating disorders, suicidal ideation, self-harming behaviour, anxiety, depression, sleep disturbances, anger, hostility, and poor self-esteem as adults (Bauman, at p. 355; Goldfinch , at para. 37; R. v. L.V. , 2016 SKCA 74 , 480 Sask.R. 181 , at para. 104 , citing D.

Todd, “Sentencing of Adult Offenders in Cases Involving Sexual Abuse of Children: Too Little, Too Late? A View From the Pennsylvania Bench” (2004), 109 Penn. St. L. Rev. 487, at pp. 509-10). [82 ] … Even in child luring cases where all interactions occur online, the offender’s conduct can constitute a form of psychological sexual violence that has the potential to cause serious harm... ….. [84] As a result, courts must consider the reasonably foreseeable potential harm that flows from sexual violence against children when determining the gravity of the offence.

Even if an offender commits a crime that fortunately results in no actual harm, courts must consider the potential for reasonably foreseeable harm when imposing sentence… When they analyze the gravity of the offence, sentencing judges thus must always take into account forms of potential harm that have yet to materialize at the time of sentencing but that are a reasonably foreseeable consequence of the offence and may in fact materialize later in childhood or in adulthood. To do otherwise would falsely imply that a child simply outgrows the harm of sexual violence… VII. ANALYSIS [ 28 ]

Section 172.1 of the Criminal Code deals with communicating by telecommunication with an underage person which the accused believes to be underage for the purpose of facilitating the commission of the designated secondary offences. The fact that multiple communications may happen over a time period signals that grooming may be occurring through the internet where individuals can engage in anonymous and repeated contact with children, albeit, in this case, the parties were known to one another.

The sexual exploitation of children through online communications is serious, as is the harm or potential harm that may be caused. There is no question that crimes of this nature have exponentially increased through the utilization of the internet and social media platforms. [ 29 ] Internet communications between an offender and a complainant often include deceitful tactics. These may involve choosing a platform that erases records of communication in order to avoid detection, such as Snapchat.

In this case, the offender requested that the complainant move their conversations to Snapchat, presumably in an effort to avoid detection of the sexual nature of the

communications. [ 30 ] The Bertrand Marchand case involved an individual who was charged with one count of child luring, along with other sexual based offences. The ages of the two parties were 22 and 13, which is not dissimilar to the facts before this court. Madam Justice Martin, writing for the Supreme Court, well set out the dictates and adopted the essence of Friesen , including comments on the wrongfulness and harm inflicted by a luring offence (paras. 28-39). The communications in Bertrand Marchand were over a lengthy period with often explicit sexual messaging.

The Court determined that the appropriate sentence in that case was 12 months’ incarceration which was to be served consecutively to a 10-month sexual interference sentence. (The Superior Court sentencing decision had been five months’ imprisonment to be served concurrently to a 10-month term of imprisonment for sexual interference. The lower court decision was rendered prior to Friesen .) [ 31 ] Importantly, the one-year mandatory minimum sentence for an indictable offence under s. 172.1 was struck down in Bertrand Marchand .

This was accomplished on the basis that the Court reviewed reasonably foreseeable hypothetical scenarios for that offence. This aided in the determination as to whether the mandatory minimum penalty constituted cruel and unusual punishment and, accordingly, infringed s. 12 of the Charter of Rights and Freedoms . Mandatory periods of incarceration can apply to an exceptionally wide scope of conduct that may result in grossly disproportionate punishments in reasonably foreseeable scenarios.

These areas are well outlined in the Supreme Court’s decision (paras. 134-146): [153] Luring is a serious offence that must be punished accordingly. The offence dovetails with s. 718.01 of the Criminal Code , which, as mentioned above, directs that in imposing sentences for offences involving abuse of children, primary consideration must be given to the objectives of denunciation and deterrence. Parliament’s decision to increase the maximum penalties for the luring offence in 2015 as part of the Tougher Penalties for Child Predators Act further indicates Parliament’s view of the gravity of the offence.

These legislative amendments should have an upward pull on sentences for this offence, regardless of whether the mandatory minimum remains intact. [154] Parliament enacted s. 172.1 in response to the growth of the internet as a burgeoning domain for predators to target children... The access that sexual offenders have to children through social media is “unprecedented”...

Young people are perpetually available online through their smartphones, tablets, computers and other electronic devices — all sites where they are vulnerable to being targeted. [155] Child luring not only lays the foundation for dangerous in-person criminal offences, it also causes its own distinct harm to child victims. [156] That being said, the attached mandatory minimum sentences go beyond what is necessary to achieve Parliament’s sentencing objectives.

The offence’s wide net of potential liability, while an asset for the preventative nature of the offence, also serves as the constitutional undoing of its penalties. The broad nature of the offence captures a range of conduct with varying culpability. As a result, it thrusts a mandatory punishment on conduct far removed and disconnected from that which Parliament sought to prevent. The Court went on to say: [167 ] Let me be clear. Sexual offences against children are serious crimes and often warrant strict sanctions.

For this reason, applying Friesen ’s principles to child luring will generally result in an increase in the sentences previously ascribed for these crimes. However, there is no incongruity between affirming the severe wrongfulness and harms that often accompany child luring offences and finding the mandatory minimums ascribed to these sentences unconstitutional. Mandatory minimum sentences establish the lowest possible punishment courts may render for the least culpable offender. They do not prevent judges from assigning lengthier sentences for more blameworthy conduct.

As such, striking the mandatory minimum sentence should not disturb the effect that the maximum sentence has on sentencing outcomes. The guidance of Friesen on the primacy of denunciation and deterrence when sentencing offenders for sexual offences against children remains.

Removal of the mandatory minimum should not drain the deterrent effect of s. 172.1(2) any more than other offences where Parliament has directed denunciation and deterrence as primary sentencing objectives without assigning a mandatory minimum sentence. [ 32 ] I am mindful that the two psychological assessments of the offender are indicative of an individual suffering from cognitive deficits who may “mask” his compromised functionality.

While the testing results were variable, his overall functioning utilizing the Wechsler Adult Intelligence Scale, Fourth Edition, fell within the borderline range representing numerical values falling between 70-79, whereas 90-109 is considered “average” (Dr. Fisher’s December 6, 2023 report, p. 2). A possible ADHD diagnosis must also be considered, along with the testing results undertaken by the St. Amant Centre. [ 33 ] The Manitoba Court of Appeal in J.M.O. considered the legal effect of a young person’s cognitive limitations in terms of a reduction of moral blameworthiness for sentencing purposes.

As stated by Justice Mainella in J.M.O. : [73] Ascertaining the moral blameworthiness of an offender with a mental illness or some other form of cognitive limitation is a tactful and considerate exercise. Sentencing judges must avoid committing one of two obvious errors in principle. The first is being indifferent to the question of whether an offender’s mental circumstances affected his or her degree of responsibility.

The other error in principle is the reverse situation, namely, assuming an offender’s moral blameworthiness for an offence is reduced automatically because he or she has a mental illness or other cognitive limitation…

Crown counsel submits that no such limitations exist in this case, albeit the psychological documentation lends itself to a varied

interpretation. However, and importantly, a link must be drawn between the nature and severity of the offender’s cognitive circumstances and the criminal conduct. [ 34 ] In this case, the psychological background of the offender is indicative of an individual with cognitive issues. Dr. Fisher’s December 6, 2023 report concluded that: • a verbally based subtest revealed severe deficits in systematic verbal abstract reasoning as opposed to tests which weighed more visual spatial organization measures.

Those were found to be in the average range; • low average scores existed in immediate verbal recall (short-term memory); • a demonstrable lower performance in capacity for task-focus sustained attention (concentration) with scores consistent with an ADHD diagnosis; • individuals with well-developed visual abilities and diminished capacity on more verbally weighted areas often are unable to “verbally mediate” their actions and tend to act impulsively, fail to give forethought to the consequence of their behaviour, often fail to profit from experience, often have difficulty in articulating their thoughts and feelings to others openly, and thus are vulnerable to feeling misunderstood; • significant difficulties in “higher order” organization and decision making were found to be apparent; • overall memory ability of the offender is compromised.

There is no mention in Dr. Fisher’s report of an awareness of the offender’s youth conviction. [ 35 ] It is against this compromised cognitive functioning that consideration must be afforded to the circumstances of the criminal conduct before the court. The offender failed to appreciate or ignored the dynamic of securing age-based consent despite the fact that he had been convicted of sexual assault as a youth in an age/consent situation. Is this a manifestation of failing to give forethought to the consequences of his behaviour, an impaired decision-making process and/or a failure to learn from past experiences?

Conversely, the offender exhibited a recognition of the inappropriateness and wrongfulness of his actions when he asked the complainant to move their communications to Snapchat to, in all likelihood, avoid detection. I am satisfied that there is a temperance of diminished moral blameworthiness in existence in this case, albeit not of a significant level. There is a possible link between the offender’s conduct and his cognitive functioning, as found by Dr. Fisher, in terms of impulse control issues, and an apparent failure to learn from experience and give forethought to the consequences of his behaviour.

That said, the offender exhibited clear awareness of the inappropriateness of his behaviour by virtue of wanting to move communications to Snapchat, has functioned in the community with no concerns, and had prior court involvement regarding an age/consent issue. [ 36 ] I have considered carefully what counsel have submitted and am conflicted as to the appropriate sentence to be imposed in this case.

The Dew decision recognizes that the possibility exists to order a conditional sentence, as opposed to the dictates of Sinclair , which is supportive of a three-to-five-year sentencing range. [ 37 ] There are sentencing factors as set out in R. v. Nasogaluak , 2010 SCC 6 , that considers which sentencing objectives should have the greatest weight, albeit denunciation and deterrence are paramount in child sexual offence cases. Further, the Supreme Court in R. v. Lacasse , 2015 SCC 64 , conceptualizes when a trial judge may consider parity in the context of sentencing ranges.

In that decision, sentencing ranges were categorized as: [57] … nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered “averages”, let alone straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case. ….. [60] In other words, sentencing ranges are primarily guidelines, and not hard and fast rules: Nasogaluak , at para. 44 .

As a result, a deviation from a sentencing range is not synonymous with an error of law or an error in principle. Sopinka J. stated this clearly in McDonnell , although he was referring in that case to categories of assault: … in my view it can never be an error in principle in itself to fail to place a particular offence within a judicially created category of assault for the purposes of sentencing. . . .

If the categories are defined narrowly, and deviations from the categorization are generally reversed, the discretion that should be left in the hands of the trial and sentencing judges is shifted considerably to the appellate courts. [para. 32] VIII. CONSIDERATION OF A CONDITIONAL SENTENCE

[ 38 ] Defence counsel has asked that I consider a conditional sentence as being reasonable in these circumstances ( R. v. Proulx , 2000 SCC 5 , 2000 S.C.J. No 6 (QL) ).

Section 742.1 of the Criminal Code sets four criteria a judge must consider before imposing a conditional sentence:

(1) The offence must not be punishable by a minimum term of imprisonment. The child luring offence is no longer punishable by a minimum term of imprisonment and, therefore, is not an excluded offence for CSO consideration under s. 742.1 (

f) of the Criminal Code .

(2) The court must impose a term of imprisonment of less than two years. A term of less than two years must be evaluated in the circumstances of this case and of this offender. The Manitoba Court of Appeal in Sinclair has arguably stipulated a sentencing range of three to five years for the offence of child luring (para. 62). However, in Dew , Judge Devine expresses that she “… was not fully convinced that the Manitoba Court of Appeal has… set a range” (para. 70).

This area will be considered further in these reasons as many luring cases are much more egregious in terms of the offending conduct than exists in these circumstances. I find this offender to be at the lower end of the offending range in terms of his conduct. Similar to what is stated in Dew : [29] This is not a case where the offender was a sexual predator on the internet looking for children to lure into some type of sexual activity.

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

(3) The safety of the community would not be endangered by the offender serving his sentence in the community. In this case, the offender has no adult criminal record, a positive PSR, family support, and is engaged in counselling. He also takes full responsibility for his offending behaviour and is remorseful for his failure to make appropriate age inquiries.

While the probation officer noted that the offender has little insight into the precursors of his behaviour and no awareness of its impact on the complainant, it was thought that specific sexual offender intervention programs would be of assistance to him (p. 14). The offender has also been regularly employed and is financially supportive of his three children. I am satisfied that if this offender was to serve his sentence in the community, it would not endanger the safety of the public.

This conclusion is also based upon the fact that the offence was not founded on anonymous, predatory-type contact as was contemplated in R. v. Morrison , 2019 SCC 15 , at para. 2 . Further, he has exhibited an ability to successfully function in the community.

(4) A conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. I acknowledge that institutional incarceration should be regarded as a last resort. It is this area which is most contentious in terms of the consideration and appropriateness of a CSO. As is indicated in Proulx , even where the offence is of a sexual nature against a child, a CSO may be appropriate.

Chief Justice Lamer, speaking for the Court, stated: [81] Offence-specific presumptions introduce unwarranted rigidity in the determination of whether a conditional sentence is a just and appropriate sanction. Such presumptions do not accord with the principle of proportionality set out in s. 718.1 and the value of individualization in sentencing, nor are they necessary to achieve the important objectives of uniformity and consistency in the use of conditional sentences. That said, the circumstances of when a CSO was appropriate in child sexual offending cases was rare before the dictates in Friesen .

The finding of a CSO will likely be less common post- Friesen . [ 39 ] Case law such as Friesen and Bertrand Marchand have appropriately concluded that the primary sentencing objectives in child sexual offences are denunciation and deterrence. However, a sentence must be proportionate and acknowledge the opportunity for rehabilitation. In most cases, a custodial sentence will be appropriate for child-related sexual offending. Further, custodial incarceration will generally provide greater denunciatory impact than a conditional sentence, albeit, recognizing that a CSO still embraces significant denunciation.

That is particularly so when it is accompanied by stringent conditions with the length of the conditional sentencing being extended beyond what the duration of an incarceratory sentence would have been ( see Proulx at para. 102 ). [ 40 ] In this case, as has already been indicated, the offender has no adult criminal record, has family support, a satisfactory PSR, as well as other acknowledged positive aspects in his personal situation. Further, this is not a situation where there was anonymous contact over the internet or a hiding of identity.

That said, the offender asked the complainant to move their communications of a sexually intrusive nature to Snapchat. I am satisfied that the circumstances of the offence are not a trust/authority or grooming-type situation. The age gap between the two parties was just over five years, which becomes close to engaging the five-year near-in-age concept.

Additionally, there were no explicit photographs/videos exchanged, there was no degree of physical interference, the duration and frequency of communications, including the sexual content, appear to be limited, albeit the offence can be committed by the sending of one message. [ 41 ] I conclude that the offender failed to exercise due diligence and made no efforts to learn the complainant’s age. The fact the offender’s peer group is younger, arguably, should have triggered an age/consent concern for him.

I acknowledge the existence of his cognitive deficits and recognize that limitations may exist; however, inquiries should have been undertaken given the proximity of his youth conviction experience. That said, his past record can only be utilized to assess future behaviour, the prospects for rehabilitation, and a possible reoffending analysis. It cannot be forgotten that sexual offences against children can have psychological and emotional damage that is capable of being long lasting in nature. It is reasonably foreseeable that potential harm and consequences are engaged as

regards this complaint. This offence carries with it a high degree of moral blameworthiness, albeit, recognizing that rehabilitation remains an important goal of the sentencing process. This offender’s level of moral blameworthiness is somewhat tempered by his cognitive issues. That said, the conduct displayed is grave and demonstrative of culpability. [ 42 ] I have considered carefully what counsel have submitted. As indicated, with respect to the CSO, I am satisfied that the safety of the community would not be endangered by him serving his sentence in the community.

Further, the child sexual luring offence is no longer punishable by a minimum term of imprisonment. Accordingly, two of the four CSO criteria have been satisfied. It is necessary to evaluate whether a term of imprisonment of less than two years is appropriate in the circumstances of this case. As has been reiterated a number of times, the Friesen and Bertrand Marchand decisions have set out the need to increase sentences regarding sexual offending against children in order to properly satisfy society’s condemnation for such behaviour, along with the fact that long-term trauma may be occasioned by the victim.

Sinclair has indicated that, “ … sentences have not reflected society’s current understanding of the gravity of online child sexual exploitation offences and their impact on victims” (para. 4). [ 43 ] The Manitoba Court of Appeal appears to have adopted a three-to-five-year sentencing range for the offence of luring based upon decisions from Ontario: R. v. Woodward , 2011 ONCA 610 (QL) and R. v. Moollah , 2021 ONSC 3702 (QL) .

However, a review of the case law indicates that not all Ontario courts have embraced the three-to-five-year sentencing range, along with the Manitoba Provincial Court in Dew and other provincial courts. This is based on the fact that sentences for offences involving child internet luring embrace a wide range of factors, conduct and behaviour to be considered with respect to the gravity of the offence and the offender’s moral blameworthiness. As previously indicated, sentencing ranges are meant to be guidelines for judges and not straitjackets ( Lacasse at para. 60 ).

The line of cases which deviates from Woodward and Moollah stipulate that there is an insufficient body of case law to properly evaluate where a possible new range for luring should fall: R. v. Collier , 2021 ONSC 6827 (QL) at para. 36 . However, it is noteworthy that certain of those cases that have not embraced the three-to-five-year range involve sting operations with undercover police officers posing as children rather than an actual child being involved and, in some manner, compromised.

There are several decisions where the Woodward , Moollah , and Sinclair ranges have been adopted, albeit many of those cases exhibit significantly more invasive conduct. It must be remembered that child sexual luring offences engages a wide range of offending conduct. [ 44 ] I n this case, it is difficult to evaluate whether there is a likelihood of sexual reoffending given there is an assessed average risk identified.

I am satisfied that there was no abuse of a position of trust or authority, the duration and frequency of the communications of a sexual nature were limited, and there was no degree of physical interference to be taken into account. In many of the cases involving child luring, there has been sexually assaultive behaviour, an exchange of photographs (which are sexual in nature), along with making available sexually explicit material. As was recognized in Friesen , it is sometimes appropriate to depart from sentencing ranges in order to impose proportionate sentences in cases of sexual offending.

All this must be considered in terms of the two “schools” of thought as to whether the three-to-five-year sentencing range is appropriate or whether it is too early to draw a conclusion concerning the sentencing range for offences of this nature post- Friesen . [ 45 ] I am satisfied, based upon what has been said in Nasogaluak and Lacasse that sentencing ranges are guidelines and not hard and fast rules. The offending conduct in this case does not warrant a three-year custodial sentence, even if a range of three to five years has been set by the Sinclair decision.

The circumstances of this case and of this offender warrant a sentence of less than two years. Given that conclusion, would a conditional sentence be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 ? These areas have been outlined earlier in this decision (paras. 38-41). Unquestionably, denunciation and deterrence are at the forefront of considerations to properly denounce the offender’s reprehensible conduct. The offence committed is significant and it carries a compelling level of moral blameworthiness.

I acknowledge the mitigating factors in this case, including the offender’s rehabilitation prospects. Despite those mitigating factors and the possibility of rehabilitation, I believe a conditional sentence is inconsistent with the purpose and principles of sentencing given the dictates from the Supreme Court of Canada in Friesen and Bertrand Marchand and the circumstances of the offending behaviour. IX. SENTENCE [ 46 ] The offender will serve a custodial sentence of 10 months, followed by two years’ supervised probation. I believe this to be a fit and proportionate sentence.

This sentence exemplifies the objectives of denunciation and deterrence, while giving credence to the objective of rehabilitation and the principle of restraint. [ 47 ] The ancillary orders include: • a DNA order - s. 487.051; • weapons – s. 109.1(a); • SOIRA – 20 years – s. 490.012(1); • a non-communication order – s. 743.21 (unless the complainant consents). [ 48 ] The probation order includes that the offender: • keep the peace and be of good behaviour; • appear before the court when required to do so by the court; • notify the court in advance of any changes of name or address and properly notify the court or the probation officer of any changes of employment or occupation; • additionally, within 72 hours of completion of the jail sentence, the offender is to report, in person, to the probation officer and, thereafter, report as directed;

• remain within the province unless written permission is received from the probation officer; • reside at the address told to the probation officer and shall not change that residence at any time without first obtaining the written consent of the probation officer; • not have in his possession any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition or explosive substance; • have no direct or indirect contact or communication with the complainant (unless the complainant consents); • participate in and cooperate with any assessment, counselling or program directed by the probation officer; • attend, participate in and successfully complete any assessment, counselling or a program as directed by the probation officer.

J.