His Majesty The King v. Jeff McIntosh, 2024 ONCJ 559
DATE: June 13, 2024 Information No.: 998-22-28103289-00 ONTARIO COURT OF JUSTICE
HIS MAJESTY THE KING
v.
JEFF MCINTOSH
Reasons for Sentence
BEFORE THE HONOURABLE JUSTICE P.C. WEST on June 13, 2024, at OSHAWA, Ontario
Appearances
Counsel for the Crown: N. Trbojevic Appearing on his own behalf: Jeff McIntosh
THURSDAY, JUNE 13, 2024
Reasons for Sentence
THE COURT: Offences by means of telecommunication; text, emails, social media, telecommunications of luring under section 172.1(1) or this 286.1, hiring someone under the age of 16 or 18 for sexual services, those are serious criminal offences. These offences, you've heard me use this phrase, are inchoate offences or a preparatory. They are made whether or not a further sexual offence is committed because these offences were devised and developed by parliament to protect children and that is the whole purpose behind them.
The offence under section 172 seeks to prevent the Commission of the designated crimes by criminalizing conduct that occurs on the way towards the Commission of the designated offences.
As indicated by Justice Doherty in a decision called R. v. Alicandro, 2009 ONCA 133, [2009] O.J. No. 571, Ontario Court of Appeal. The focus is on the individual’s intention at the time, not afterwards. So, it is when the telecommunications are being made. And by criminalizing conduct that precedes sexual offences like sexual assault.
The luring offence provision tries to “close the cyberspace door before the predator gets to the prey.” That is from a case called R. v. Legare, 2009 SCC 56, [2009] 3 SCR 551, at paragraph 25, in the Supreme Court of Canada. For offences involving children in their exploitations through the internet, the objectives of general deterrence and denunciation save in the rarest cases, are the paramount sentencing principles to be applied (see R. v. Folino, [2005] O.J. No. 4737 Ontario Court of Appeal at paragraph 25, and R. v. Wheeler, [2017] O.J, No. 6797, decision of Justice Hockin in the Superior Court of Justice).
Just to explain to you, general deterrence, that is a principle of sentencing where the sentence that is imposed, is designed to deter others who are like minded. Specific deterrence is to deter the person who is charged or is found guilty of the offence. Those are the two different kinds of deterrence. And denunciation, that is a word that means it is the community’s abhorrence or the community’s dislike, a high dislike of that crime. Denunciation is saying this is really wrong and a sentence has to reflect the community’s denunciation of an offence. Those are principles of sentencing.
There is a case called R. v. Jarvis, [2006] O.J. No. 3241, a decision of the Ontario Court of Appeal, that indicated the offence of luring calls for a sentence in the range of 12 months to 2 years, 12 months to 24 months. Although in that case, because of the particular circumstances of that accused and what took place in terms of – I think that case was a guilty plea – a sentence of 6 months was ultimately upheld. The case of Jarvis predated the enactment of mandatory minimum sentences. When you were charged, some of the mandatory minimum sentences still existed; they don't exist anymore. There are no minimums anymore. Jarvis also described the sentence of 6 months as being a lenient sentence at the bottom range.
In 2011, Justice Moldaver, as he then was, he ultimately left the Court of Appeal for Ontario and was elevated to the Supreme Court of Canada. In a case called R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216, Ontario Court of Appeal, writing for the court he reiterated the seriousness of sexual offences involving children. He expressed doubt as to whether or not Justice Rosenberg in the Jarvis decision, I just referred to, had actually set a range of sentence but he held that if one had been set, it should be increased. He says,
Even if Jarvis did proport to set a range of 12 to 24 months for this offence of luring, that range needs to be revised given the 2007 amendment in which parliament doubled the maximum punishment from 5 years to 10 years.
Moreover, it is shown through the introduction of properly tendered evidence as the offence of luring has become A pervasive social problem.
I will believe (this is Justice Moldaver saying) that much stiffer sentences in the range of three to five years might well be warranted to deter, denounce and separate from society adult predators who would commit this insidious crime.
In 2012, the maximum sentence for offences pursuant to section 172.1 was increased from 10 years. I have just told you that in 2007 it was increased from 5 years to 10 years but in 2012, it was increased from that 10-year sentence to what it is currently, which is 14 years. In my view, Justice Moldaver’s comments and viewpoint in Woodward become even stronger.
The Ontario Court of Appeal in R. v. Morrison, 2017 ONCA 582, [2017] O.J. No. 3600, dealt once again with the issue of the appropriate sentence in a case involving child luring. Here, the offender communicated with an undercover police officer who was posing as 14-year old Katie. Morrison testified he believed he was participating in a sexual fantasy with an adult female.
Unlike the case that I was referring to before where he also talked about engaging in these sexual fantasies, that is not this case, Morrison did not even arrange a meeting with Katie, and he ended his communication with her unilaterally. In that case, there was a 12-month mandatory minimum given the Crown's decision to proceed by indictment, but he found it was grossly disproportionate and contravened section 2 [of the Charter]. Here is one of the first decisions under the Charter of finding the minimum sentence was unconstitutional. He imposed a sentence of 75 days intermittent followed by probation and that was upheld by the Court of Appeal.
Everyone appealed the Morrison case to the Supreme Court, which recently released their decision 2019 SCC 15, [2019] S.C.J. No. 15 and they ordered a new trial because of some of the comments made by the trial judge as to whether or not the Crown had proven beyond a reasonable doubt that Mr. Morrison believed Katie was under the age of 16.
The court in Morrison, now it is Justice Moldaver writing for this court again. He is now on the Supreme Court of Canada. He left open whether or not 172.1 was unconstitutional in terms of the mandatory minimum sentence because he was ordering a new trial. So, it wasn’t decided. Ultimately, it was decided in another Supreme Court of Canada case that Mr. Trbojevic refers to. It is R. v. Bertrand Marchand, 2023 SCC 26.
Background
Now, I am just going to go briefly through your background Sir, that I get from the Pre-sentence Report. I understand you were born in Grenada, that you lived there with your mother, three sisters and a brother, you are the third born child, you speak highly of your family and your being raised in Grenada. You have no criminal elements in your family and so this was not an issue for you. No abuse towards you, you grew up in a good family. You have a close relationship with your siblings and with your parents. Your father still resides in Grenada. I believe all of your family still resides in Grenada. Is that right?
JEFF MCINTOSH: No, my father is in America.
THE COURT: Sorry, your which?
JEFF MCINTOSH: My dad is in America.
THE COURT: In the United States.
JEFF MCINTOSH: Yeah.
THE COURT: Yes, your father is in the United States. But your mother and your siblings, your brother, sister, they all reside still in Grenada?
JEFF MCINTOSH: No, I have sisters in America too.
THE COURT: In?
JEFF MCINTOSH: In United States.
THE COURT: United States as well, okay.
JEFF MCINTOSH: Yeah.
THE COURT: You immigrated to Canada in 2020, you applied for and was accepted into a farm program. Originally it was in Leamington, and you worked in the program for 4 months. Your father has 13 children all together; three of them are full siblings to yourself. Now, I understand that Canada Border Services is currently in possession of your passport, and you have issues with them over your work visa I guess in this country.
JEFF MCINTOSH: No.
THE COURT: No? What is your issue with them? You still have a work visa?
JEFF MCINTOSH: No, because some guy report me to immigration.
THE COURT: I saw that in here...
JEFF MCINTOSH: Yeah.
THE COURT: ...But I don’t understand it. How long was your work visa for?
JEFF MCINTOSH: Well, me work visa finish after I get married.
THE COURT: Right.
JEFF MCINTOSH: Yeah. And then it finished like the December, it finished.
THE COURT: December of?
JEFF MCINTOSH: I think 2020, I think.
THE COURT: In 2020.
JEFF MCINTOSH: Yeah, I think December....
THE COURT: Well, that’s like 4 years ago, 3 and a half years ago. And so, you’ve continued to remain in the country because of your marriage? And that is to the woman that you are no longer living with.
JEFF MCINTOSH: Yes.
THE COURT: But your marriage is over.
JEFF MCINTOSH: No, we are still married.
THE COURT: I know you’re still married but you’re not living together anymore.
JEFF MCINTOSH: Yeah but we still does--
THE COURT: I understand.
JEFF MCINTOSH: Yeah.
THE COURT: You have issues though you are going to have to deal with Canada Border Services, yes?
JEFF MCINTOSH: I think.
THE COURT: Okay. You’ve told me that today, I didn’t realize this because it is not in the Pre-sentence Report, that you’re actually living in a shelter, right?
JEFF MCINTOSH: Yeah.
THE COURT: How long have you been in a shelter?
JEFF MCINTOSH: A month now.
THE COURT: A month now?
JEFF MCINTOSH: Mmhmm.
THE COURT: The Pre-sentence Report indicates that in November of 2023, your wife told you that the relationship was completely over, and you believe this was due to her desire to be with other men. But you at that point continued to reside together but recently it became too difficult and you told me you moved out to the shelter, right?
JEFF MCINTOSH: Yes.
THE COURT: You have been working many different kinds of jobs, right? Since leaving the farm job?
JEFF MCINTOSH: Yes.
THE COURT: I’ve got here you worked in a Pickering chemical plant, a landscaping company, a moving company, drove forklift in a warehouse, road paving, coaching track, and also working at a bakery, right?
JEFF MCINTOSH: Yes.
THE COURT: None of the places that you were employed with worked out for very long term.
JEFF MCINTOSH: No.
THE COURT: And I understand currently you’re still unemployed?
JEFF MCINTOSH: Yes.
THE COURT: Yes? And have not worked since December of 2023.
JEFF MCINTOSH: No, I’ve been working. I’ve been working.
THE COURT: Okay, I’m just telling you what is indicated in the Pre-sentence Report.
JEFF MCINTOSH: Yeah.
THE COURT: You don’t have a problem with drugs, and you don’t have a problem with alcohol, and you don’t have a problem with gambling.
JEFF MCINTOSH: No.
THE COURT: You advised the presentence preparer that you have no problems with mental health issues.
JEFF MCINTOSH: No.
THE COURT: You very much enjoy sports, that is the thing you enjoy the most.
JEFF MCINTOSH: Yes.
THE COURT: Now, in the Pre-sentence Report it indicates that you basically are maintaining what you said in your evidence when you testified, right?
JEFF MCINTOSH: Yes.
THE COURT: Okay. And as you know, I did not accept that evidence, but you are entitled to maintain that. You have no criminal record. You indicated to the probation officer while you don’t take any responsibility for the offences, you are willing to attend and actively participate in counselling if it is required as part of a probation order.
JEFF MCINTOSH: Yes.
THE COURT: You presented as outgoing and cooperative when interviewed by the probation officer. She spoke highly of you and said you were a good candidate for probation as part of the sentence.
Mitigating and Aggravating Circumstances
These are what I believe are the mitigating and aggravating circumstances to be considered in your case. The mitigating circumstances are firstly that you are a first offender who is currently 36 years old. You have been on bail since your release, and you have no further charges, and you have family support although your family resides in Grenada.
I should indicate though that I find that you are not a youthful offender given you were 34 years of age at the time the offence was committed. I find you are not youthful. You are young but you are not youthful in the way the cases talk about youthful first offenders, but you are a first offender.
The aggravating circumstances I find are as follows: You arranged sexual activity both cunnilingus and intercourse for money with a girl you believed to be 15 years of age. I agree with the Crown, 15 is a vulnerable age. As I set out in my reasons for my finding, you believe the person was 15. You asked in the text how old she was. You were first advised she was “A tad bit younger than the ad haha.” After asking her, “Do you want sex now?” She responded, “Yes babe. $150 for an hour. I am 15 though. You good?” You responded, “Yes. I’m coming. Send me your address.” And despite the undercover officer later responding, “K, I just don’t want drama. I am 15 so no heat, k?” You responded, “Why should I heat you?” You had no hesitation in any of the messages about carrying through with your request in your asking for the address and having engaging in sex, both cunnilingus and intercourse with this 15-year old person even after there were issues raised by the undercover officer about her age being only 15. You did not have any problem with that.
I agree with the Crown. This is not an impulsive act. You drove for some distance while texting her for over an hour and a half. The timing on the text is some time around 7:30 in the evening to 9:00 p.m. and that is what you believe to be a 15-year old girl.
She asked you to buy a red slushy. You actually asked her what kind of slushy she wanted; she told you red and you bought the red slushy and I think in my view, I think I said this in my reasons finding you guilty, that is part of what would’ve brought home to you the age of 15.
She also asked you to buy condoms, which you did as well. It shows what your intentions were, and it shows it was not impulsive. You were 34 at the time and the girl you were buying sexual services from was only 15 and that is a 19-year age difference. That is an aggravating circumstance.
It is not an aggravating circumstance that Mr. McIntosh had a trial, which was his right. Further, his maintaining his innocence in the PSR is not an aggravating circumstance. Further, the fact Mr. McIntosh has not expressed remorse or did not plead, all that means is that you do not get the mitigating benefit of either the guilty plea or the expression of remorse.
Similarly, it applies to things indicated by the Crown of you not going for counselling, not gaining insight into what you were involved in with a 15-year old girl, which you were trying to get involved in, I am not taking any of those things into account as aggravating circumstances.
In my view as well, the fact that this is a sting by the police does not lessen in any way the seriousness of the offences that I find you guilty of. Justice Pomerance R. v. Harris, [2017] O.J. No. 788 addressed this issue as follows and I adopt her analysis. This is the quote,
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 fortuitus 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 blame worthiness 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.
In my view, this goes back to the fact this offence is an inchoate or preparatory offence. That is what this is all about. Which, “Seeks to prevent the commission of the designated crimes by criminalizing conduct that occurs on the way towards the commission of the designated crimes.” And that is in respect of things like sexual interference, sexual exploitations, sexual assault, invitation to sexual touching, all those kinds of offences. What this offence tries to do, is to “close the cyberspace door before the predator gets in to prey.” And that is from the cases I have already referred to, Alicandro and Legare.
Sentencing Principles and Objectives
I do take into account Justice Rosenberg’s comments in a case called R. v. Priest, [1996] O.J. No. 3369, decision of the Ontario Court of Appeal at paragraph 17 where he says in part,
The primary objective in sentencing a first offender are individual deterrence and rehabilitation except for very serious offences and offences involving violence. This court has held that these objectives are not only paramount but best achieved by either a suspended sentence and probation or a very short term of imprisonment followed by a term of probation.
At paragraph 18, he also said in part,
It has been an important principle of sentencing in this province that the sentence should constitute the minimum necessary intervention that is adequate in the particular circumstances. This principle implies that a trial judge consider community based dispositions first and impose more serious forms of punishment only when necessary.
These principles have now been codified in the recently proclaimed section 718 and 718.2 of the Criminal Code. 718(c) instructs the separation of offenders from society if an appropriate objective of sentencing where necessary. 718.2(d) directs that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances.
At paragraph 23 also in the Priest decision in part,
It is a well established principle of sentencing laid down by this court that a first sentence of imprisonment should be as short as possible and tailored to the individual circumstances of the accused rather than solely for the purpose of general deterrence.
I have considered the principle of restraint as directed by Justice Gillese in R. v. Batisse, 2009 ONCA 114, decision of the Ontario Court of Appeal at paragraphs 32 to 34. And more recently as discussed again by Justice Gillese in R. v. Disher, 2020 ONCA 710, at paragraphs 59 and 60. And finally, by Justice Zarnett in R. v. Ali, 2002 O.J. No. 4754(C.A.) at paragraphs 39 to 42.
The primary objective of the sentence in this case in my view, however, are to denounce the unlawful conduct and to deter the offender and other persons from committing offences. The secondary objective of the sentence in this case is to rehabilitate the offender given his lack of a prior record and his rehabilitative potential. The sentence should provide reparations for harm done to the community. The sentence should promote a sense of responsibility in the offender and in the acknowledgment of the harm done to the community.
With regards to the gravity of the offence, the Crown elected to proceed by indictment in this case. Case law has held that the gravity of the offence includes both subjective gravity; namely, the circumstances surrounding the Commission of the offence and objective gravity.
The maximum sentence of the Criminal Code for this offences determines the objective gravity by indicating the relative severity of the crime. Maximum sentence in the present case is 14 years in jail. The subjective gravity of the offence is increased by the aggravating factors that I have set out above.
With regards to the degree of responsibility of the offender, I find that Mr. McIntosh is personally responsible for the Commission of this offence. He agreed to meet this child, age 15. He bought a red slushy at the request of this undercover officer posing as a 15 year old as well as purchasing condoms to engage in the sexual activity that he said he wanted to perform on this 15 year old child. He drove for about an hour and a half to meet the child. He communicated, in my view, extensively with this child prior to meeting the child.
In my view, all of this increases Mr. McIntosh’s moral blameworthiness. Child luring requires a high level of mens rea and involves a higher degree, in my view, of moral blameworthiness. See R. v. Morrison, 2019 SCC 15 at paragraph 15. Mr. McIntosh’s moral blameworthiness is reduced by his lack of a criminal record. However, it is my view his moral blameworthiness is still quite high.
Conditional Sentence Consideration
Given the sentence being sought by the Crown, a conditional sentence is an available disposition. And just so you understand what a conditional sentence is Mr. McIntosh, it is a jail sentence. It usually is longer than the sentence that the Crown is seeking in real jail. That comes from a case called Proulx that I am going to refer to in a moment. Proulx is from the Supreme court of Canada.
A conditional sentence is served in the community. Very often, when I impose a conditional sentence it would be with a GPS bracelet around your ankle and you would be restricted to living in your residence and there would be exceptions for employment if you were going to school, things of that nature. But most of the time you would be in your residence in jail, that is a conditional sentence just so you understand what the sentence is.
As I have said, conditional sentences must be less than 2 years, so 2 years less a day. It can be longer than that. If it is longer than that, that is a penitentiary sentence, and a conditional sentence is not available. There must not be a minimum sentence of any kind. There is not any minimum sentence is anymore. There are only about three or four designated offences that don't qualify anymore for a conditional sentence. The offences that I have found you guilty of is not one of those three or four offences.
The only remaining consideration that I must come to is whether or not the imposition of a conditional sentence is in line with the principles of sentencing as set out in the Criminal Code or whether it is contrary to the principles of sentencing and contrary to what is called the proportionality principle under section 718.1, which is the fundamental principle of sentencing; namely, it depends on a balancing of the seriousness of the offence and the moral blameworthiness or the moral culpability of the offender.
As I have said, because of the sentence being sought by Mr. Trbojevic of 12 months, a conditional sentence is an available sentence subject to me determining whether it is contrary to sentencing principles as set out in the Criminal Code.
You should know that the Court of Appeal for Ontario has stated that it will only be in the rarest of cases that a conditional sentence will be appropriate in a case involving child luring. They actually say that. That is R. v. Folino, [2005] O.J. No. 4737, at paragraph 25, decision of the Court of Appeal.
R. v. El-Jamel, 2010 ONCA 575, a decision of the Ontario Court of Appeal at paragraph 9. And more recently in R. v. Rafiq, 2015 ONCA 768, decision of the Ontario Court of Appeal. Chief Justice Strathy of the Court of Appeal referred to R. v. Folino and stated that a conditional sentence will only be appropriate in the rarest of cases. That is in paragraph 27 of the Rafiq case.
The Supreme Court of Canada has recognized that,
The internet revolution and the internet itself has a darker side. Increasingly, sexual predators are using electronic means to prey upon one of the most vulnerable groups within Canadian society, our children. Access to the internet amongst Canadian children is now almost universal and many are continuously connected whether through a computer, a smart phone or another device. This has led to the new and distressing phenomena of predators lurking in the cyberspace “anonymity” using online communications as a tool for meeting and grooming children with a view to sexually exploiting them.
That is referred to and that is a quote from R. v. Morrison, 2019 SCC 15 at paragraph 2. In a case that Mr. Trbojevic provided that I am familiar with as well, R. v. Cowell, 2019 ONCA 972, a decision of the Ontario Court of appeal. Justice Benotto stated at paragraph 120 to 122, in part and I have omitted all the citations and I am quoting,
The social reality is that “access to the internet among Canadian children is now universal” and “predators lurking in cyberspace with anonymity” are able to meet, groom and sexually exploit vulnerable children through telecommunication. Children are defenceless to the sexual exploitation of adult predators, who are only one click away. The harm caused by this offence is often life altering for innocent children.
Parliament enacted Criminal Code provisions to ensure that predators who lure children through telecommunication receive, “a punishment that reflects the gravity and seriousness of the offence”. Luring attracts a high degree of moral blameworthiness, especially since its victims are “one of the most vulnerable groups within Canadian society, our children.”
In R. v. Friesen, 2020 SCC 9, which I have referred to, this is from the Supreme Court of Canada. Chief Justice Wagner and Justice Rowe stated at paragraph 44 in part, and I am quoting,
The guidance we provide is focused on sentencing principles for the offence of sexual interference and closely related offences such as invitation to sexual touching, Criminal Code section 152, sexual exploitation Criminal Code section 153(1), incest, Criminal Code section 155, and sexual assault Criminal Code section 271.
However, the principles that we outlined also have relevance to sentencing for other sexual offences against children so just child luring, Criminal Code section 172.1. Courts should thus draw upon the principles that we set out in this case when imposing sentences for which other sexual offences against children.
And in paragraph 93, I have omitted the citations in this as well. This is also from Friesen,
Courts must give effect to the moral culpability of the offender in sentencing even where the facts give rise to the conviction involve a police sting operation rather than a child victim. Child luring may be committed in two ways. The offender is actually committing with the underage person or the offender believes the person he is communicating with is underage even though this is not in fact the case.
In particularly, the offence of child luring is often prosecuted through sting operations, an undercover officer poses online as a child, waits for an offender to initiate communication with a sexual purpose.
Although the absence of specific victim is relevant it should not be overemphasized in arriving at a fit sentence. The accused can take no credit for the 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 or that was not in fact underage the offender both must have intentionally communicated with a person who the offender believed to be underage and must have had the specific intent to facilitate the Commission of a sexual or other specified offence against that person.
I have given careful consideration to a conditional sentence order. Courts have very few options other than imprisonment for meeting the objectives of general or specific deterrence and denunciation in cases in which these objectives must be emphasized. See R. v. Lacasse, 2015 SCC 64 at paragraph 6. In R. v. Proulx, 2000 SCC 5, [2000] 1 SCR 61 at paragraph 115,
A conditional sentence is available even where there are aggravating circumstances relating to the offence of the offender. Nevertheless, the Supreme Court in Proulx also recognized that in some cases, the amount of deterrence and denunciation provided by a conditional sentence could prove insufficient.
For the court, Chief Justice Lemaire explained,
There may Certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender’s conduct.
That's paragraph 106. I have concluded that this is a case where the need for denunciation and deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of Mr. McIntosh's conduct.
The Court of Appeal for Ontario stated on July 6, 2022, in R. v. M.M., 2022 ONCA 441 at paragraph 15 and 16. In part, in the case of possession and making child pornography, I have omitted the citations and I'm quoting now from M.M.,
The Supreme Courts instructions from Friesen could not be clearer. Sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance. Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.
Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate. For example, where it gives rise to a medical hardship but could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here. We make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.
Conclusion and Sentence Imposition
I conclude that a conditional sentence would be inconsistent with the fundamental purpose and principles of sentencing set out in 718 to 718.2. A jail sentence, in real jail, will address the primary objectives of denunciation and deterrence and in my view, a lengthy probation order will address rehabilitation. So, balancing all of the aggravating and mitigating factors and considering the fact that these are offences against a 15 year old child, it is my view a fit proportionate sentence in all of the circumstances of this case is 12 months imprisonment.
I will indicate to you Mr. McIntosh, the Crown could have legitimately asked for a higher sentence than 12 months, he didn't. I think he was being fair taking into account that you're not represented by counsel, you are self-represented, that you wouldn't be able to perhaps make the kind of submissions that a lawyer would have made before me. You weren't getting the advice of a lawyer as well. And I'm not saying you have to do this, but I've had individuals change their position from the trial to sentencing. That didn't happen in your case. I don't treat that as an aggravating circumstance but the mitigating circumstances that might have been present are not there at all.
Mr. Trbojevic in my view, took into account your being self-represented and made submissions to me about the appropriate sentence. I believe probably the lowest appropriate sentence that he could have asked to impose in your case given the circumstances of your case, so I want you to hear that from me. This could have been as some of those cases that Mr. Trbojevic sent, it could have been a 14 month sentence, it could have been a 16 month sentence. The conduct that I found you wanted to engage in with what you believe was a 15 year old child when you are 34 can only be described as despicable and insidious as the cases talk about and deserving of condemnation. I think the lowest sentence that could have been requested by the Crown is the 12 months and that is the sentence that I am imposing.
Probation Conditions
I am going to place you on probation for a period of 2 years. There will be statutory conditions, the most important which is to keep the peace and be of good behavior. It means what it says. Don't commit any other criminal offences. This will be a reporting probation. It will be in person to a probation officer within three 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 the probation officer to assist in your supervision. The length of the probation order will be for 2 years.
You will cooperate with your probation officer, sign any release 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.
You will 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. You are to attend and actively participate in all assessment counseling or rehabilitative programs as directed by the probation officer, complete them to the satisfaction of the probation officer. Counseling and programs to address sexual offending as it relates particularly to children but also generally and any other reason that the probation officer deems appropriate. I have already indicated you are to sign releases so that can be checked off there and provide proof.
You are not to seek any employment or volunteer positions in which you are in a position of trust with children under the age of 16.
Forfeiture and SOIRA Order
There will be DNA order made with respect to both defences of 172.1 and 286.1(2), they are both primary designated offences.
I should indicate that the 12 month jail sentence is in respect of the 172.1(1)(a). With respect to the offense of 286.1(2), that will be a 6 month concurrent sentence. That means it's not more than 12 months, it is the 12 months, it runs at the same time. The obstruct peace officer, that will be-- I don’t want him to be on two probation orders Mr. Trbojevic.
MR. TRBOJOVIC: Oh right, yeah. It makes sense to do a concurrent. I don’t think that particular obstruct requires a custodial sentence.
THE COURT: I agree. So how do you want me to do it then? Do you want me to impose what?
MR. TRBOJOVIC: One day concurrent.
THE COURT: Sure.
MR. TRBOJOVIC: I know it’s a jail sentence but obviously....
THE COURT: One day concurrent is fine.
MR. TRBOJOVIC: Right.
THE COURT: I just don’t want him to be on two probation orders. I am going to make a forfeiture order under section 490.1(1). What was the amount of the cash that was seized?
MR. TRBOJOVIC: It is $146 and then also asked for the cell phone that was seized. I have provided a draft order for Mr. Clerk.
THE COURT: I am going to order the forfeiture of both the cell phone and the cash seized because they are offence related property. The S.O.I.R.A order, I am exercising my discretion. There are two offences and I will be imposing it for 20 years.
Immigration Consequences
Now, I will indicate this to you, if for any reason you are deported back to Grenada sooner than the 12 months is completed, whether or not you will be deported, that is between you, the custodial facility and Canada Border Services. In the event that you are released from custody, or you remain in custody for the whole time you likely serve two thirds of that custody not the full amount, so it will be eight months of the 12, you have to report to probation but if you are then arrested by Canada Border Services for deportation, you should get yourself an immigration lawyer, but you can do certain things. If your intent is that you want to go back to Grenada, you can maybe speed that process up but those are decisions you have to make. It is completely separate from my consideration in terms of what the appropriate sentence was.
In terms of immigration consequences, I did neglect to say this, I don't know the full details of what's going on with your immigration status in Canada. It seems to me that you got some sort of difficulties because you were only here for maybe, I don't know, 6 months work visa, 8 months work visa, a year work visa, I just don't know. You told me it was up at some point in 2020. Well, you came here in 2020 to work in Leamington on an apple farm I believe it was.
JEFF MCINTOSH: No, the greenhouse.
THE COURT: Right. I don’t know if you got extensions of your work visa because that wasn’t indicated. But a work visa is very different than coming to Canada as a refugee or coming to Canada as a permanent resident being they accept it as a permanent resident. Many people who come on work visas ultimately make an application to become a permanent resident and if they don't have criminal records then that is something that often will flow if you've been a contributing member of the community, right?
JEFF MCINTOSH: Yeah.
THE COURT: But in terms of the sentence I imposed, I imposed what I believe to be the lowest sentence. The Court of Appeal has indicated without exceptional circumstances present mitigating circumstances the range of sentence for this offence you were found guilty of by me is 12 to 24 months. So in those circumstances, 12 months in my view is the lowest and I took that into account in imposing the 12 month sentence and perhaps Mr. Trbojevic from the Crown also took into account. He did give me the Pham decision and so maybe he took your immigration consequences and what likely will happen or could happen in respect of this conviction being taken into account in the sentence that he indicated....
JEFF MCINTOSH: Yeah, because I have to go back to immigration on the 9th.
THE COURT: On the when?
JEFF MCINTOSH: 9th of July.
THE COURT: You won’t be going. You’re in custody.
JEFF MCINTOSH: So I can’t work nothing.
THE COURT: I’m sorry?
JEFF MCINTOSH: I cannot work nothing?
THE COURT: You’re in custody for the next 8 months, Sir, the minimum. You stay out of trouble in jail, you’ll be in custody for two thirds then it is mandatory release. But if you get into trouble in the institution you can lose some of that time for release.
JEFF MCINTOSH: No, I already stay away from trouble already.
THE COURT: Sorry?
JEFF MCINTOSH: I say I already stay away from trouble. I know.
THE COURT: Okay. Well, stay away from trouble inside as well, right? Very important. You can potentially get parole. Those are things that you can get too. Talk to them in the jail because there are provisions for parole. This is a long enough sentence that parole might be applicable. But you’ve got other issues with the immigration. Issues that might prevent parole from being a consideration for the institution. Okay? So, you have to talk to them about all of these things. They will give you a date that they say you will likely be released by if you don’t get into any difficulty. All I can say to you Mr. McIntosh is stay out of trouble and hopefully you get back to Grenada...
JEFF MCINTOSH: I stay 8 months in custody?
THE COURT: ...That is what you indicated in the Pre-sentence Report, you wanted to see happen for yourself so.
JEFF MCINTOSH: Yeah, because I’ve seen trouble ver here. That is why I want to go back.
THE COURT: Understand.
JEFF MCINTOSH: Yeah.
THE COURT: Goodluck to you, Sir.