) ) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 940

CITATION : R. v. Harris, 2017 ONSC 940 CHATHAM COURT FILE NO.: 2897/16 DELIVERED ORALLY DATE: 20170214 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – Michael Wayne Harris ) ) ) ) ) ) James Boonstra, for the Crown Paul Watson, for Michael Wayne Harris ) HEARD: January 27, 2017 POMERANCE J. INTRODUCTION [ 1 ] The internet is ubiquitous in today’s society. It fosters convenience, sociability, commerce, and the flow of information. But it also has a dark side.

The internet can serve as a hunting ground for sexual predators who seek to befriend young persons and groom them for sexual activity. Children are vulnerable targets and can be manipulated by persons who conceal their true intentions and/or identity online. Communications with predators are harmful in and of themselves; they can also serve as a gateway to the commission of sexual offences. In recognition of this pernicious danger, Parliament created the offence commonly known as “luring”, in s. 172.1 of the Criminal Code , R.S.C. 1985, c.

C-46. [ 2 ] Michael Wayne Harris was convicted of luring following a trial. He was also convicted of making sexually explicit material available to a child, contrary to s. 171.1 of the Code . I do not propose to repeat the facts at any length. They are set out in detail in my reasons for judgment. In

summary, Mr. Harris posted two ads on Craigslist in which he said that he was looking for a “young girl” and a “young slut” to engage in sexual activity. An undercover officer answered the ads, claiming to be a 15-year-old girl named Katie. There followed a series of communications between “Katie” and the offender, with the offender initiating many sexually explicit discussions. The offender suggested to Katie that they meet behind the public library in Chatham. The offender attended at the designated time and place and was arrested. [ 3 ] At trial, Mr.

Harris testified that he never believed that Katie was under the age of 16 years. He claimed that he believed, from the very outset, that he was communicating with a middle aged adult male. I rejected the accused’s testimony and found that it did not raise a reasonable doubt. The explanations in his testimony did not withstand logical scrutiny, they defied common sense, and they were contradicted by his conduct and the content of his communications.

I found that the Crown had proven the essential elements of luring beyond a reasonable doubt: the accused intentionally communicated with a person he believed to be under the age of 16 years for the specific purpose of facilitating the commission of a sexual offence with a young person. I found that the accused attended at the library for the express purpose of meeting with Katie, whom he believed to be a girl under the age of 16, for the purpose of facilitating a sexual offence against a child. THE SENTENCING HEARING [ 4 ] Mr.

Harris filed a notice of constitutional question, challenging the validity of the mandatory minimum sentence of one year for luring. The Crown filed material in response. At the sentencing hearing, counsel for Mr. Harris advised that Mr. Harris only wished to challenge the mandatory minimum if it would affect the sentence imposed in his case. He advised that, if Mr. Harris was going to receive a sentence of 12 months or more, the constitutional challenge was academic and he would not pursue it. [ 5 ] I heard submissions from the Crown and defence as to whether the sentence imposed on Mr.

Harris could, in the absence of the minimum, realistically fall below 12 months. Defence submitted that a sentence of four months would be appropriate. The Crown submitted that a sentence in the range of 18 months should be imposed. [ 6 ] After hearing submissions, I ruled that, in this case, a sentence of four months would not adequately address the gravity of the offence and the moral blameworthiness of the offender. I ruled that a sentence of at least 12 months was required, independent of the mandatory minimum penalty. [ 7 ] On this basis, Mr. Harris withdrew his constitutional challenge.

I reserved my decision in order to consider what sentence should be imposed. Should it be the mandatory minimum, 12 months? Or, should it be something more than that? These are the reasons for that decision. THE OFFENDER

[8] Mr. Harris is a 57-year-old man before the court as a first offender. He faced some difficult challenges in his childhood andwas, according to his sister, victimized by abusive family members. He struggled with alcohol abuse when he was younger but reportsthat this is no longer an issue. The charges in this case have created a rift within his birth family, with many family members terminatedcontact with him. [9] Mr. Harris has had three unsuccessful marriages. He has been involved with his current romantic partner for about one year.

The offender lives in a rooming house for persons experiencing mental health issues, or homelessness. The offender helped the ownerrenovate the house in exchange for the ability to live there. [10] Mr. Harris currently receives a disability pension. He suffered a stroke ten years ago which affects his ability to work. THE OFFENCE: GENERAL PRINCIPLES [11] Luring is a serious offence. The offence of luring is itself inchoate – it is made out whether or not a further sexual offence iscommitted. The grooming of young persons for sexual activity is itself harmful.

Beyond that, it can result in the commission of physicalcrimes. The offence of luring “carries very real dangers - innocent children being seduced and sexually assaulted or even worse”: see R.v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 59. In short, the internet can be a dangerous place. Predators can disguisetheir identities; they can pretend to be trusted friends, and they can manipulate the emotions of young persons who are seeking toconnect with others in the online world.

By criminalizing conduct that precedes sexual offences, the luring offence provision tries to“close the cyberspace door before the predator gets in to prey”: see R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 25. Asobserved by Paperny J.A. in R. v. Paradee, 2013 ABCA 41, 85 Alta. L.R.(5th) 177, at para. 12, Parliament has recognized that the internet has infinitely expanded the opportunity for predators to attract or ensnare children.

Theanonymity of the internet allows the predator to hide his or her true identity, to mask predatory behaviours through seemingly innocuousbut persistent communication, and to count on the victims letting their guard down because the communication occurs in the privacy andsupposed safety of their own homes. A proportionate sentence for intent luring must recognize the serious nature of this offence. [12] Deterrence and denunciation are paramount considerations in cases of this nature, as noted by Ratushny J. in R. v. Jepson,[2004] O.J.

No. 5521 (S.C.), at para. 19, Denunciation, deterrence, both general and specific, and rehabilitation are the objectives to be served in sentencing Mr. Jepson, in thatorder. Child luring over the internet requires strong denunciation because of the ease with which offenders can prey on innocentchildren, out of the reach of the public eye. The consequences can be catastrophic, especially where, as here, the sexually explicit talkprogresses past the fantasy talk to a face-to-face meeting where the risk of physical sexual offences being committed becomes a morereal risk. [13] In R. v.

Jarvis, (ONCA), the Ontario Court of Appeal suggested that the offence of luring calls for asentence in the range of 12 months to two years; though, in that case, the court upheld a sentence of six months imposed on the offender. In the subsequent case of Woodward, Moldaver J.A., writing for the court, reiterated the seriousness of the offence.

He expressed doubtabout whether the court had actually set a range of sentence in Jarvis but went on to say that, in any event, the range should be increased: [58] Even if Jarvis did purport to set a range of 12 to 24 months for the offence of luring, that range needs to be revised given the 2007amendment in which Parliament doubled the maximum punishment from 5 years to 10 years.

Moreover, if it is shown through theintroduction of properly-tendered evidence that the offence of luring has become a pervasive social problem, I believe that much stiffersentences, in the range of three to five years, might well be warranted to deter, denounce and separate from society adult predators whowould commit this insidious crime. [14] As a result of legislative amendments, the bottom end of the range is now set by the mandatory minimum penalty of 12 monthsimprisonment.

THE OFFENCE IN THIS CASE [15] I have already determined that the appropriate sentence in this case consists of at least 12 months incarceration. The question iswhether the sentence imposed should exceed the statutory minimum. [16] This case presents with several aggravating features, including the following: 1. The offender specifically targeted young girls when he posted the ads. This is not a case in which a young person responded to an adthat was targeting adults. 2. The communications continued over a lengthy period of time, often at the instigation of the offender.

He was persistent in his effortsto maintain communication with Katie. When the communications lapsed on Katie’s end, the offender implored her to come back online. I found at trial that this persistence was based on the offender’s expectation or, at least, hope that Katie would meet him for sexualactivity. 3. The offender engaged in clear grooming behaviour, routinely turning the communications toward sexually explicit topics, includingthe sexual acts that he wished to perform with Katie. 4.

The offender’s interest in sexual activity with young persons was illustrated, in a rather chilling fashion, by his response to themessage sent by the undercover officer under the name of Jim Smith. “Jim” offered his 14-year-old stepdaughter up for sexual activityin exchange for money saying, “She does what I tell her, no questions asked.” The offender responded by expressing interest in thesexual activity, though he was not willing to pay a fee. 5. The offence of luring is made out even where there is no meeting or attempt to meet with a child. In this case, however, the offender

did take steps to meet with Katie at the Chatham library. At trial, I found that he went to the library for the express purpose of meeting with Katie and for the express purpose of engaging her in sexual activity. This case went beyond the realm of fantasy and beyond acts of communication. Had Katie been a real child, she would have been exposed to the risk of sexual victimization. 6. In some cases, offenders expose their genitalia or masturbate during on-line communications.

I agree with the defence that this aggravating factor is not present in this case. [ 17 ] No child was actually put at risk by the offender’s conduct. Katie was not really a young girl. She was a persona created by the undercover officer in an effort to “lure” the “lurer”. However, I do not see this as a mitigating factor. It was fortuitous that the person responding to the ad was a police officer rather than a child. At trial, I found that the accused believed Katie to be a young girl.

In these circumstances, the moral blameworthiness of the offender is not much different than if Katie really had been a young girl. Certainly, Mr. Harris cannot take credit for the fact that no child was placed in harm’s way. [ 18 ] Moreover, I am conscious of the offender’s continuing denial of the offences. The offender insisted at trial that he did not believe that Katie was a 15-year-old girl. He repeated this assertion to the probation officer who prepared the pre-sentence report, and he repeated it to me when asked if he had anything to say before imposition of sentence.

I stressed that it is the offender’s right to dispute the findings of fact that I made at trial. He is entitled to dispute the findings of guilt and must not be punished for that. The acceptance of responsibility is a mitigating factor on sentence. A failure to expressly acknowledge responsibility represents the absence of a mitigating factor. It is not an aggravating factor and must not result in a longer sentence than would otherwise be imposed. [ 19 ] I have considered several authorities filed by both the Crown and defence in this case, including R. v. Walther , 2013 ONCJ 107 ; R. v.

Dobson , 2013 ONCJ 150 ; R. v. Holland , 2011 ONSC 1504 ; R. v. Bergeron , 2009 ONCJ 104 ; and R. v. McCall , 2011 BCPC 143 . Every case turns on its own facts, and none of the authorities are “on all fours”. That said, they do offer helpful guidance. [ 20 ] I am satisfied that a term of imprisonment of 18 months, followed by three years of probation, should be imposed in this case. The circumstances of the crime are sufficiently serious to warrant a sentence above the mandatory minimum. I have highlighted some of the aggravating factors above. I note that, in contrast to some of the authorities, Mr.

Harris is not entitled to the mitigating effect of a guilty plea. His election to go to trial is not an aggravating factor but, rather, reflects the absence of a mitigating fact. Mr. Harris is a first offender, and that operates in mitigation. Were it otherwise, a higher sentence would be imposed. [ 21 ] Based on the authorities, the legal principles and the circumstances of the offence and the offender, I sentence Mr. Harris to a term of 18 months in jail on the offence of luring. [ 22 ] Following his release, he is to serve a term of three (3) years probation.

In addition to the statutory terms, the following apply: 1) Do not use any hardware device or software program for the purpose of connecting to, or accessing the internet except pursuant to the following restrictions:

i) To be used only for the following purposes: communicating via Facebook with family members and adult friends; for employment purposes, including finding employment; and to obtain housing; ii) Any device or software used must maintain and preserve a complete and detailed log or history of all internet sites and pages accessed, which you must not delete or alter, and any device or software used must not be used in any “private browsing”, “incognito”, “inprivate”, or similar mode to avoid or bypass the creation of such a log. 2) Upon reasonable demand, which may be without notice, between the hours of 8:00 a.m. and 11:00 p.m., you must permit Det.

Gary Oriet and any assisting officer of the Chatham-Kent Police Service to access any hardware device in your possession or control, which may include allowing access into your residence or any place you happen to be for the purpose of examining any such device to ensure compliance with these conditions. 3) Do not associate or communicate with any person under the age of 16 unless directly supervised by an adult person who is legally responsible for the wellbeing of that child; except, you may exercise unsupervised access with Michael Aaron Harris with his consent and with the consent of his mother, Jennifer Harris. 4) Report in person to a probation officer, within two (2) working days of your release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision. 5) Cooperate with your probation officer.

You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to your probation officer on request. 6) Live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance. 7) Do not attend a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre. 8) Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for: sexual offending behaviour and other issues as directed.

Actively participate in the Ministry of Community Safety and Correctional Services Sex Offender Relapse Prevention (SORP) program and/or other sexual offending program, as directed by the probation and parole officer. 9) Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for: psychiatric/psychological issues

10) Do not possess or access child pornography, and not to possess or access any images of children who are depicted to be or appear tobe under the age of 18 years or who are naked or portrayed in a sexual manner. 11) Do not engage in seeking, obtaining or continuing any employment, whether or not the employment is remunerated or becoming orbeing a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. Inaddition, you are not to be involved with any organization or charity which supports children.

ANCILLARY ORDERS [23] The following orders are made ancillary to the sentence imposed on the luring count: 1) A weapons prohibition for a period of 10 years under s. 109 of the Code; 2) A DNA order under s. 487.051 of the Code, directing the collection of a sample of blood; 3) An order under ss. 161(1) (

a) through (

d) of the Code for a period of 20 years; 4) An order under s. 490.012 of the Code (the Sex Offender Information Registration Act) for a period of 20 years. THE APPLICATION OF THE KIENAPPLE PRINCIPLE: LURING AND MAKING SEXUALLY EXPLICIT MATERIALAVAILABLE TO A CHILD [24] Having determined the sentence to be imposed on the luring offence (s. 172.1 of the Code), I will now turn to the finding ofguilt on the other count, alleging that the offender made sexually explicit material available to a child (s. 171.1 of the Code).

I mustdetermine whether the s. 171.1 count is subject to a conditional stay on the basis of the “Kienapple” principle. Specifically, I mustdetermine whether there is a sufficient factual and legal nexus between the charges to foreclose the possibility of two separateconvictions. [25] The factual nexus is clear. The factual delicts are identical; the charges are based on precisely the same acts. What about thelegal nexus? The question is whether one offence has distinct additional elements that are not present in the other: see R. v. Prince, (SCC), [1986] 2 S.C.R. 480. This is a more nuanced inquiry.

As Doherty J.A. put it in R. v. Kinnear, (ON CA), at paras. 36: When will it be said that there are no “additional and distinguishing elements” between offences? As indicted in Prince at pp.49-50,there can be “no precise answer” to this question. The sufficiency of the legal nexus between offences will depend on an

interpretation ofthe statutory provisions that create the offences and the application of those statutory

definitions to the circumstances of the case. [26] Here, the Crown argued that the offence of making sexually explicit material available has an additional element that is not partof the luring offence. Mr. Boonstra pointed out that luring may involve transmission of sexually explicit material, or it may not. Thetransmission of such material is not an essential element of the offence under s. 172.1, though it is an essential element of the offenceunder s. 171.1. [27] This is, at first blush, an attractive argument. However, the matter is not so simple.

An element of an offence is not additionalor distinct when it can be said that the elements are “substantially the same” or “alternative” the one to the other. This point was madeby the Court of Appeal for Ontario in R. v. Falahatchian (1995), (ON CA), 99 C.C.C. (3d) 420 (Ont. C.A.),summarizing the principles in Prince, at pp. 432-433: An element of an offence is not additional or distinct when it can be said that the elements are "substantially the same" or "alternative"the one to the other.

Abstract logic as to when this might occur must be supplemented by an awareness of practical considerations inascertaining Parliament's intention in creating different offences. Without purporting to be exhaustive, there are at least three ways inwhich sufficient correspondence between elements can be found, each of which is subject to a manifestation of legislative intent toincrease punishment in the event that two or more offences overlap. The first is where an element may be a particularization of anotherelement.

For example, the offence of pointing a firearm at a person is a particularization of the offence of using a firearm: Krug v. TheQueen (1985), (SCC), 21 C.C.C. (3d) 193. The second is where there is more than one method to prove the same delict. For example, where an accused is charged with giving evidence in a judicial proceeding that was contrary to his own previous evidenceand also charged with perjury, proof of giving contradictory evidence merely facilitates proof of the offence of perjury: R. v. Gushue(1976), (ON CA), 32 C.C.C. (2d) 189.

The third situation is where Parliament in effect deems a particular element to besatisfied by proof of a different nature. This situation relates to the applicability of Kienapple to offences of impaired driving contrary tos. 234 (now s. 250) and "over 80" contrary to s. 236 (now s. 252). Since impairment is difficult to prove, Parliament has deemed a certainproportion of alcohol to constitute an impairment of driving ability. Elements which serve only as an evidentiary proxy for anotherelement cannot be regarded as distinct or additional elements.

In applying these criteria, it is important not to frustrate the intent ofParliament. The overarching question is whether the same matter underlies both charges. (pp.49-51) [28] How do these principles apply in this case? It is helpful to begin by setting out the statutory

definitions of the offences. Luringis defined as follows: 172.1

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

a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission ofan offence with respect to that person under subsection 153(1),

section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2),

279.03(2), 286.1(2), 286.2(2) or 286.3(2); (

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; or (

c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under

section 281 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. [ 29 ] The following is the statutory definition of the offence of making sexually explicit material available to a child: 171.1

(1) Every person commits an offence who transmits, makes available, distributes or sells sexually explicit material to (

a) a person who is, or who the accused believes is, under the age of 18 years, for the purpose of facilitating the commission of an offence with respect to that person under subsection 153(1),

section 155, 163.1, 170, 171 or 279.011 or subsection 279.02(2), 279.03(2), 286.1(2), 286.2(2) or 286.3(2); (

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; or (

c) a person who is, or who the accused believes is, under the age of 14 years, for the purpose of facilitating the commission of an offence under

section 281 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 six months; 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 90 days. [ 30 ] The s. 172.1 offence is made out upon proof that the accused communicated, by telecommunication, with a person believed to be under the age of 18 years, for the purpose of facilitating a sexual offence. The s. 171.1 offence is made out upon proof that the accused made sexually explicit material available to a person believed to be under the age of 18 years for the purpose of facilitating a sexual offence.

The definition of sexually explicit material in s. 171.1(5) is broad and includes “written material whose dominant characteristic is the description, for a sexual purpose, of explicit sexual activity with a person.” The sentences are subject to same maximum penalties, though s. 171.1 is subject to a lesser minimum penalty. [ 31 ] In this case, the accused engaged in sexually explicit communications with Katie. For purposes of the luring charge, these communications were evidence of “grooming” and the accused’s intention to facilitate the commission of a sexual offence.

For purposes of the other count, the same communications established that the accused transmitted sexually explicit material. In both instances, the content of the communications helped to establish that the accused intended to facilitate the commission of a sexual offence. [ 32 ] Given the parity between the statutory

definitions, s. 172.1 and s. 171.1 are aimed at the same mischief: the grooming of young persons for sexual activity, as a precursor to a sexual offence. These offences are alternate forms of the same criminal harm. The situation is similar to one involving the offences of using a firearm and pointing a firearm; one is the particularization of the other. Alternatively, the offences may represent different methods of proving the same delict, as demonstrated in the example of perjury and giving inconsistent evidence in a judicial proceeding.

However it is described, both charges are concerned with fundamentally the same subject matter. [ 33 ] In Kinnear , Doherty J.A. captured the essence of the test in para. 39: I think the three factors identified in Prince as severing any possible legal nexus between offences provide further support for the view that the crucial distinction for the purposes of the application of Kienapple rule is between different wrongs and the same wrong committed in different ways.

If the offences target different societal interests, different victims, or prohibit different consequences, it cannot be said that the distinctions between the offences amount to nothing more than a different way of committing the same wrong. [ 34 ] Here, the offences target the same societal interests, the same victims and prohibit the very same consequences. They are different ways of committing the same wrong. Accordingly, this is a case where the principles

of Kienapple prohibit convictions on multiple counts. The count under s. 171.1, while the subject of a finding of guilt, will be conditionally stayed. “original signed and released by Pomerance J.” Renee M. Pomerance Justice Released: February 14, 2017 CITATION : R. v. Harris, 2017 ONSC 940 CHATHAM COURT FILE NO.: 2897/16 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – Nathan Harris REASONS FOR SENTENCE Renee M. Pomerance Justice Released Orally: February 14, 2017