ONTARIO COURT OF JUSTICE
Toronto Region – Old City Hall
BETWEEN:
HIS MAJESTY THE KING
— AND —
JARED BATTIESTE
Before Justice H. Pringle
Heard on July 14, 2022; September 19, 2022
Reasons for Judgment released on December 9, 2022
Maggie Brown..................................................................................... counsel for the Crown
Phil Klumak................................................................................... counsel for the defendant
PRINGLE J.:
OVERVIEW OF PLEA
1Mr. Battieste communicated, through a Kik chat group for teens, with someone he thought was a 14-year old girl. He was 30 years old at the time. He was lonely, depressed, and intoxicated. Over several days, he sent multiple adult pornography images to her, asked for pictures in return, and pressed how and when they could meet for sex.
2There was no girl. “Madison” was an undercover officer and Mr. Battieste was arrested. He had no criminal record at the time. He complied with a risk assessment and a pre-sentence report. His offending appears rooted in significant alcohol abuse coupled with sexual risk-taking behaviour.
3On July 14, 2022, the defendant pled guilty to luring a child for the purpose of committing a sexual offence, contrary to s. 172.1(1)(b) of the Criminal Code. The Crown elected summarily, triggering a mandatory minimum sentence of six months jail. The Crown sought eighteen months jail.
4The defence sought a declaration, applicable within the four corners of this case, that the six-month mandatory minimum sentence (MMS) was violative of s. 12 of the Charter. If the MMS was found to infringe s. 12, the defendant argued a conditional sentence should be imposed.
THE NUR APPROACH
5The one-year indictable mandatory minimum for telecommunication child luring has twice been struck down by the Ontario Superior Court: see R. v. Faroughi, 2020 ONSC 780; R. v. C.D.R., 2020 ONSC 645; see also R. v. Sinnappillai, 2022 ONSC 832. These declarations are binding on me, as they pertain to the one-year mandatory minimum sentence.
6These decisions are not binding on me, as they pertain to the six-month summary conviction mandatory sentence. Mr. Klumak referenced these cases to underscore the inequity of sentences lower than six months being available, had the Crown elected to proceed by indictment1.
7However, my analysis must begin with the process from R. v. Nur, 2015 SCC 15. In order to assess the constitutionality of a mandatory minimum sentence, Nur directs two steps:
Without regard for the mandatory minimum, I must assess what is the appropriate sentence for the crime Mr. Battieste committed;
I must ask if imposing the mandatory minimum sentence would result in a grossly disproportionate sentence for either Mr. Battieste or for a reasonably foreseeable hypothetical offender.
8To assess a proportionate sentence for Mr. Battieste as an offender, and for the crime he committed, I begin with consideration of the fundamental purpose and objectives of sentencing.
FUNDAMENTAL PURPOSE AND OBJECTIVES OF SENTENCING
9The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
denunciation;
general and specific deterrence;
separation of offenders from society where necessary;
rehabilitation;
promotion of a sense of responsibility in the offender;
an acknowledgment of harm to victims;
and reparation, where appropriate, to victims and community.
10In assessing what sentence accomplishes that purpose and those objectives, I must be mindful of:
parity of sentence;
the totality principle, and;
the principle of restraint.
11Mr. Battieste’s sentence should be similar to those imposed on similar offenders for similar offences. Every sentence imposed in every case must achieve as best as a sentencing judge can, the goal of being proportionate to the gravity of the offence and to the offender's degree of responsibility sometimes characterized as moral blameworthiness.
12In other words, the sentence imposed must reflect the seriousness of Mr. Battieste’s offence, his degree of culpability in committing it, and the harm his offending caused to victims and society.
13The primary objectives to be achieved, when sentencing offenders for sexual offences involving children, are those of deterrence and denunciation. This was not a disputed point. Paras. 101, 104, and 105 of R. v. Friesen, 2020 SCC 9 apply here:
Parliament’s decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code confirms the need for courts to impose more severe sanctions for sexual offences against children. In 2005, Parliament added s. 718.01 to the Criminal Code by enacting Bill C-2. In cases that involve the abuse of a person under the age of 18, s. 718.01 requires the court to give “primary consideration to the objectives of denunciation and deterrence of such conduct” when imposing sentence.
Section 718.01 thus qualifies this Court’s previous direction that it is for the sentencing judge to determine which sentencing objective or objectives are to be prioritized. Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge’s discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority (Rayo, at paras. 103 and 107-8).
Parliament’s choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause. The sentencing objective of denunciation embodies the communicative and educative role of law…It reflects the fact that Canadian criminal law is a ‘system of values’. A sentence that expresses denunciation thus condemns the offender ‘for encroaching on our society’s basic code of values’; it ‘instills the basic set of communal values shared by all Canadians’. … The protection of children is one of the most basic values of Canadian society…As L’Heureux-Dube J. reasoned in L.F.W., ‘sexual assault of a child is a crime that is abhorrent to Canadian society and society’s condemnation of those who commit such offences must be communicated in the clearest of terms’…
14I am statutorily mandated to give primacy to the sentencing objectives of denunciation and deterrence.
APPELLATE SENTENCING DIRECTIVES
15In April 2020, the Supreme Court of Canada released R. v. Friesen. The Court upheld a six-year sentence for sexual interference. In doing so, the Court loudly and firmly communicated that past sentencing precedent, for sexual crimes against children, must change. At para. 5:
…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….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.
16The Court linked this message, specifically, to the crime of luring a child via telecommunications. At para. 45:
…the principles that we outline also have relevance to sentencing for other sexual offences against children, such as child luring (Criminal Code, s. 172.1). Courts should thus draw upon the principles that we set out in this case when imposing sentences for such other sexual offences against children.
17Child luring, the Court continued at paras. 47 and 50, can be:
…both a prelude to sexual assault and a way to induce or threaten children to perform sexual acts on camera….[t]o effectively respond to sexual violence against children, sentencing judges need to properly understand the wrongfulness of sexual offences against children and the profound harm that they cause.
18There is little difference between the offender who attempts to lure an actual child and one who wrongly believes he is attempting to lure an actual child. In either case, the offender’s moral blameworthiness is high and profound harm is caused. At paras. 93 and 94 of Friesen:
Courts must give effect to the moral culpability of the offender in sentencing even where the facts giving rise to the conviction involve a police sting operation rather than a child victim….Although the absence of a specific victim is relevant, it should not be overemphasized in arriving at a fit sentence. The accused can take no credit for this factor. As such, it does not detract from the degree of responsibility of the offender for that offence. After all, to be convicted of child luring in the context of a police sting operation where the person the offender was communicating with was not in fact under age, the offender both must have intentionally communicated with a person who the offender believed to be under age and must have had the specific intent to facilitate the commission of a sexual or other specified offence against that person(Morrison, at para. 153).
Moreover, it must be recognized that with the advent of social media, ‘sexual offenders have been given unprecedented access to potential victims and avenues to facilitate sexual offending,’ especially though child luring (K.R.J., at paras. 102 and 104). Parliament designed the child luring offence to enable the police to use sting operations to ‘close the cyberspace door’ by apprehending offenders before they can successfully target and harm children…As Abella J. stated, “These sting operations are crucial in the enforcement of child luring laws since, as Doherty J.A. cogently put it, ‘Children cannot be expected to police the Internet’”….And courts should bear this in mind when sentencing offenders who have been outed by police undercover operations. To be clear, child luring should never be viewed as a victimless crime.
19Sentencing decisions that pre-date Friesen’s clear directive bear little persuasive weight. Similarly, sentencing decisions that pre-date Morrison’s refinement of the requisite mens rea bear little persuasive weight. Those cases considered a wider ambit of moral blameworthy behaviour.
ASSESSING RANGE OF SENTENCE
20Counsel presented me with authorities to assist in assessing the applicable range of sentence for Mr. Battieste’s crime:
R. v. Faroughi, 2020 ONSC 780, one-year indictable MMS struck down, 19 year old first offender communicated with an undercover officer professing to be a 14-year old girl; offender hired her to engage in a variety of sexual acts and went to meet her at a hotel; no guilty plea; low risk to re-offend; phallometric test showed no indications of pedophilia; completed therapy directed at sexual offending and community service; seven months jail imposed; pre-Friesen;
R. v Hems, 2019 ONCJ 779, Crown elected summarily; 21 year old first offender communicated with a real 11 year old girl; explicit sexual conversations; requests to see her genitals; offender sent a picture of his penis; had child pornography on his computer; offender was developmentally delayed and had bipolar disorder; had poor insight and likely high risk to offend; pled guilty; six months jail for child luring offence (consecutive to other sentence); pre-Friesen;
R. v. King, 2019 ONCJ 366, Crown elected summarily, guilty plea, 52 year old first offender, was victim himself of well-known sexual predator; arranged online and went to meet a 14 year old girl (undercover officer) for sex; stable in community, completed extensive counseling; assessed as low risk to re-offend; MMS held of no effect in that case; one-year conditional sentence imposed; pre-Friesen;
R. v. Randall, 2018 ONCJ 470, Crown elected summarily, guilty plea, 50 year old first offender, communicated with undercover officer professing to be 15 year old girl, sent adult pornography videos; attended at a meeting for sex; assessed as low risk to re-offend; six-month mandatory minimum struck down and ninety days jail imposed; pre-Friesen;
R. v. Saffari, 2019 ONCJ 861, Crown proceeded by indictment, one-year MMS struck down, communicated with and went to meet person he believed was 14 year old girl to have sex; youthful first offender aged 23; significant immigration consequences to sentence above six months; no guilty plea; five months jail imposed; post-Friesen;
R. v. Ditoro, 2021 ONCJ 540, pled guilty, summary election, offender was 18 and victim was 14; pressured for explicit photo, tried to trick him into sending one, did not attempt meeting; co-operated with police, first offender; attended 22 counseling sessions to address risk factors; six months jail imposed; post-Friesen.
R. v. MacDonald, 2022 OCJ, pled guilty, indictable election, 36 year old repeat offender, received a CSO for first offence; conversed with undercover officer he believed was 14 year old girl; multiple requests for a photo; sent unsolicited picture of his own penis; offered to teach her sexual acts; made efforts to arrange a meeting; 30 months jail imposed; post-Friesen;
R. v. Patel, [2022] O.J. No. 3800, pled guilty, Crown proceeded summarily, 31-year old first offender chatting with undercover officer posing as 14 year old girl; explicit sexual communications over one day, no pornography sent or sought; arranged to meet the next day and followed through; 14 months jail; post-Friesen.
21From these cases and applying Friesen, I concluded that the conduct Mr. Battieste engaged in easily included a range of six months in jail.
FACTS OF THE OFFENCE
22On February 14, 2019, Mr. Battieste was in a chat group called “Toronto Teens Only”. He initiated contact with a “girl”, and beginning at 1:49 p.m., they began direct messaging one another through Kik. The topic quickly turned to her age, her past sexual experience, and if she had talked “dirty” or said “naughty things” with other men online.
23The girl told him she was in grade nine and was at school on lunch while they were messaging. Mr. Battieste asked her for a picture, but did not press the issue when she declined. He said:
I probably shouldn’t be talking to you anyways lol….gonna get myself in trouble…you mom might find out or i might be drunk one night and message inappropriate things so that’s why…Ahh just stupid horny boy stuff I shouldn’t be saying that might get be in trouble lol
24At 4:50 p.m., he messaged her to ask, “how was school cutie” and sent her a selfie. By 8 p.m., he had messaged to suggest they have sexual contact:
…you like me being naughty web can fool around if you want…your exciting…hmm…lol your gone
25Over Feb. 15 through 18, 2019, the undercover reached out twice with little response from Mr. Battieste. As per the assessment of Dr. Heasman, Mr. Battieste had deleted the prior chat and, according to him, at times did not recall the age of the person he had been drunkenly talking to.
26That said, some memory remained because on February 19, starting at 6:38 a.m., he began messaging her again. By 12:00 p.m. he certainly knew who he was talking to. He asked her, after saying he was in a “naughty mood”, why she wasn’t at school. The girl said she was in the library, to which Mr. Battieste replied:
Well damn send me a pic then at least… I’m watching porn
27The conversation quickly turned to how many ‘dick pics’ she had received online, masturbation, his view that “someone will turn you out sometime soon”, what specific sexual acts he liked, and his query “would you do something with me”. He offered to perform oral sex on her, told her that would eventually lead to penetrative sex, and said:
I can make it happen whenever you want.
28He sent her a screenshot of adult pornography involving digital penetration, and then a picture of his own penis with the question:
think could handle that
29Mr. Battieste then began to ask whether she had been abused before, and why if she wasn’t abused, she wanted him to “play with” her. He offered again to have sex with her, said he had his own place, and asked her to meet him at a coffee shop.
30He asked again for a picture, sent a screenshot of adult pornography involving oral sex, told her he would not wait any longer for a picture, and sent a video showing fellatio being performed.
31When she responded to that video by saying “I dunno if I want that rough”, he replied:
I wouldn’t treat you that way promise…unless you let me….which I might see what you’ll let me do … and what you can handle…maybe you’d let me treat you like that…you think you could handle it…maybe choke during sucking me…
32He then sent the girl a video of a naked female with a man’s hand around her neck, where the female appeared to be choking. She expressed hesitation, as did he. But when she suggested it was possible he could do this to her, Mr. Battieste said:
If we end up liking each other…you would end up like that and more…kinky stuff, maybe share you….toys…me and my 38 yr old friend would take turns….binding and tying…yea but and pussy toys
33The girl responded that she did not want to be passed around, and Mr. Battieste said, “ok…just testing the waters lol” and asked for a picture. When she sent a clothed picture of a teenaged girl, he asked her for another, and then said:
lol look girl you should not be talking to me or offering anything else like meeting or camminf with older men live your high school life and stay out of trouble for the most part…I thought I might be able to ‘creep’ you away lol but I guess not
…nothing is wrong your 14! girl mingle in your youth and don’t ever meet anyone you meet online truth be told maybe just maybe when your 12 years older…I could have been anyone and that’s to dangerous in this world I won’t meet up with you lol and I wouldn’t have sex with a 14! year old jesus…your beautiful you don’t need men like me in your life
…I am real…you want to talk and prove your real call me on cam even for a min. and I might change my mind…I’m not sure your real is my concern….
…but I neee something that’ proves you…I feel unsure your read real…honestly I’m so interested you don’t even know
34Mr. Battieste continued to press the girl for proof she was real, so that he knew who he was talking to and could be more comfortable. He pressed for a meeting the next day:
JB: Ok when can I message you again…you still want to meet me?...we should cam first then
Girl: When ever I just might not be able to get back to u…Yes I do but only if you want to meet
JB: I do…want to tomorrow?...i can pick you up…no bs…could be during the day…well let me know I guess…sorry I messed it all up
Girl: I dunno if I can skip out tomm
JB: ok…I hope you can…we can come back to my place for an hour and I’ll drop you back off for 3…your picture got me very into you
Girl: Where would u pick me up
JB: it’s up to you…coffee shop or something….close to your school maybe
35The defendant continued to raise the topic of how and where they could meet the next day. He also gave her his ‘address’, which was fake but close to where he actually lived at the time.
36By the end of that same day, ‘Madison’ had canceled their meeting. Mr. Battieste reached out to her again on Feb. 23, Feb. 26, and Feb. 27. On Feb. 27, she was substantively responsive and Mr. Battieste again pressed for another picture, told her he had masturbated to the first picture multiple times, and said,
i’d still like to meet sometime.
37The undercover officer stopped substantively responding. Still, Mr. Battieste reached out to her again on March 9, March 12, March 18, March 22, March 26, April 15, April 25, and May 12. On May 15, he was arrested.
FACTS OF THE OFFENDER
38It has been over three years since Mr. Battieste tried to persuade someone he thought was a 14-year old girl to meet him for sex. No hint of sexual re-offence has been brought to my attention. He is currently well-rooted in his community, with strong and stable family support. In particular, he continues to reside with his partner and the two have plans to marry. He and his partner have suffered greatly from the stigma of his arrest.
39Their relationship has been strained by his struggle with alcohol abuse. Mr. Battieste’s alcohol abuse was a significant contributing factor to his offending. He had begun consuming alcohol in high school. As a young adult, “alcohol use affected the subject’s work life, attributing to often being late or absent from work due to being hungover, ultimately being fired…for these reasons”: Pre-Sentence Report at p. 7. His father would hear promises to quit drinking, followed by the discovery of alcohol bottles under the furniture.
40To his credit, Mr. Battieste recognizes that he abuses alcohol when he is bored and stressed, two factors that were in play at the time he committed the offence. Back in February 2019, he was unemployed following a workplace injury. He was stressed, he was bored, and he was coping by getting drunk daily.
41February 14^th^ was the day before the defendants’ birthday and he had been home drinking all day. He had started using Kik for sexual conversations, which was obviously another form of risk-taking behaviour. He had joined adult chat groups as well as the Toronto teen group, and was not discriminate about who he talked with online. In this context, he started communicating with “Madison”.
42Since being arrested, Mr. Battieste has seen a therapist, attended some AA meetings, and has an unfilled prescription for an anti-craving medication. He does not feel the need, currently, to use it. He complied with a risk assessment. Results of phallometric testing was not indicative of pedophilia or hebephilia2. He did not have an elevated risk for re-offence or psychopathy, but “average risk” of sexual re-offence.
43The risk assessment concluded that:
Based on all available information there is insufficient evidence to suggest that Mr. Battieste has a pedophilic or hebephilic sexual preference that motivated his offending behaviour. He does however exhibit a clinically significant history of high sex drive/sexual preoccupation. Mr. Battieste has also occasionally used sexual behaviour as a coping strategy, which is most notable during the time leading up to his alleged offence. He would require intervention regarding sexual self-regulation.
Mr. Battieste evidenced long-standing impulsivity in multiple domains of his life, associated with risk taking. As he ages this has reduced to some extent, however this remains an area of clinical need.
A very significant area of need for Mr. Battieste relates to his substance abuse. He is well aware of the impact of substance use on his life and has taken some steps towards modification. His substance abuse also appears significantly related to his alleged offence. Mr. Battieste’s alcohol use meets criteria for a diagnosis of Alcohol Use Disorder, Severe….Mr. Battieste’s risk for reoffence is likely directly related to his involvement in substances. As such, it is strongly recommended that he attend intensive treatment for substance abuse, which is most likely to be found via an inpatient setting.
44The Pre-Sentence Report author found Mr. Battieste to have stabilized himself in the community, with support of his partner and family:
Presently, all parties interviewed explained that the subject seems to have finally found his calling in life. The subject himself describes high job satisfaction in his current position as a carpenter’s apprentice with a small family company that does residential renovation and custom kitchen work. The subject works regular business hours, making $24 an hour, with some overtime work. Parties interviewed all express visible signs of the subject appearing highly engaged, satisfied, and feeling fulfilled for the first time ever in his working life, with the subject himself explaining that he can see himself making this a career path. The subject does have some financial strains due to debts accumulated over the years, but with the couple both gainfully employed, and [partner] being prudent with money, they appear to be on a positive path towards self-reliance while trying to save about $40,000 for their upcoming wedding.
AGGRAVATING FACTORS
45Aggravating and mitigating factors must be weighed in every case. The aggravating factors, which increase the seriousness of the crime and/or Mr. Battieste’s moral blameworthiness in committing it, are:
The age gap between he and “Madison”;
The frequency of communications he had with her, and his attempts to continue those conversations over months;
The nature of those conversations, which included his “testing the waters” to see if she would let him choke her during fellatio, tie her up, and share her sexually with a 38 year old friend;
The multiple images of adult pornography that he sent to 14-year old “Madison”. To be clear, for Mr. Battieste’s understanding, each of these acts was another criminal offence he committed but was not charged for;
The repeated pressure for her to send him a picture or to web cam chat with him, followed by his admission that he masturbated to the clothed picture she sent multiple times;
The repeated pressure for her to meet up and have sex with him;
The harm Mr. Battieste’s offending occasioned on our society.
MITIGATING FACTORS
46The mitigating factors in this case are:
His plea of guilt to the offence. This was a strong mitigating factor, despite the fact that his plea was not early3. It still showed an acceptance of responsibility for the crime and remorse for his actions;
The fact that Mr. Battieste comes before this court with no prior criminal record, as a first offender;
The strong community support that Mr. Battieste is lucky to still enjoy, and in particular the continued support of his partner;
Mr. Battieste’s stability in the community, including his well-established record of employment despite a sometimes turbulent adolescence;
His attendance for phallometric testing and a risk assessment, both of which demonstrated a wish to understand his own behaviour and to change it, going forward.
NEUTRAL FACTORS
47The absence of a human “victim” in this case, and the failure to follow through with meeting “Madison”, are properly understood as the absence of aggravating factors. Neither can serve, properly, to mitigate sentence.
48I must also note that Mr. Battieste continues, in my opinion, to lack some insight into his offending. His comments, particularly at page 3 of the assessment report, strongly communicate that lack of insight and a tendency to minimize what he did.
49To be clear, it was impossible to reconcile the content and order of the chats with comments in the assessment like “it hadn’t really dawned on (him) that she was 14 years young”, that the first day had no conversations with a sexual overtone or about sexual topics, or that the picture she sent looked like an adult woman.
50However, the minimization / lack of insight into his offending are not aggravating factors. It would be, in my view, inappropriate to use them in this manner. That would serve to add punishment for having less than perfect insight into behaviour that must be very difficult to understand and to accept.
MR. BATTIESTE’S SENTENCE
51When I weighed the aggravating and mitigating factors above, considered similar sentences for similar offenders/offences and the principles and objectives I am directed to express, I concluded eight months in jail was a proportionate sentence for Mr. Battieste’s crime. Sixteen months of probation will also be imposed.
52This sentence is appropriate for this offence and this offender. But for the stable community roots, the absence of prior criminal record, and the guilty plea, Mr. Battieste’s sentence could easily have been higher.
53Given this conclusion, the mandatory minimum sentence in this case would not require me to impose a disproportionate sentence. Accordingly, the constitutional question is moot. I decline to consider whether the MMS would result in a grossly disproportionate sentence imposed on a reasonable hypothetical offender.
54Both counsel did commendable work in their written and oral submissions, and I am grateful for the time and professionalism they have both invested.
Released: December 9, 2022
Signed: Justice H. Pringle
Footnotes
- This was an observation about the effect of the current state of the law, and not a suggestion of improper exercise of Crown discretion in this case.
- Dr. Woodside qualified this conclusion in his report, but for the purposes of sentencing I have accepted the test results were negative for those findings.
- I accept the COVID-19 pandemic played a factor in some delay.
