WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION

In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: March 16, 2017

Between:

Her Majesty the Queen

— and —

Nicodemus Gerard Crant

Before: Justice S.R. Shamai

Heard on: February 23, 2016

Reasons for Sentence released on: March 16, 2017

Counsel:

• Mareike Newhouse — counsel for the Crown
• Greg Roberts — counsel for the Offender, Nicodemus Crant

Reasons for Sentence

S.R. SHAMAI, J.:

A. Introduction

[1] I found Nicodemus Crant guilty on two counts of criminal conduct, on February 23, 2016. After a protracted trial, I determined that the evidence proved that he was in possession of child pornography and that he had committed the offence of "luring", under Section 172.1 of the Criminal Code. These offences took place between August 1 and September 9, 2011. The information was sworn in November 2011. To the extent that the elapsed time raises a question, why did it take so long from charge to sentencing date, I answered that to the best of my ability when Mr. Crant through counsel filed an application for relief under Section 11b last summer, on the eve of sentencing. That issue was argued on December 9, 2016, and my ruling released on January 26, 2017. Counsel asked for an adjournment to prepare submissions on sentence, though I had been awaiting the sentencing hearing for many months at that point. I heard submissions on sentence on March 2, 2017, and adjourned to March 16 to consider the result and prepare these reasons.

[2] The details of the events underlying the convictions are contained in the February 23, 2016 decision. I will highlight a few of the salient points. Mr. Crant, born and raised on the reserve in Newfoundland, had returned from Toronto to visit his family in July 2011. While there, he had occasion to greet the complainant, whose identity is the subject of a publication ban. Mr. Crant, 46 years old at the time, saw his 13 year old great nephew with some other young people near the latter's home, and had a brief conversation with them. Subsequently, Mr. Crant entered into a series of telecommunication based exchanges with the complainant. Believing that the complainant was "gay", as he is himself, and that he was being bullied in school for that reason, as Crant had experienced in that community while he was growing up, the communications quickly took on a sexual theme. With a photo and a brief video of himself sent to the child via MSN Messenger and Hotmail, Mr. Crant showed himself masturbating by video and naked in a still photo. He urged the child send a picture of his penis, which he did. I emphasize that the only item fitting the definition of child pornography was one poor quality photo of the child exposing himself – a selfie, if you will – which was sent via his cell phone to Crant. No other images in the nature of child pornography were found on any of the electronic devices owned by Crant. The exposure of Mr. Crant's genitals and of Mr. Crant masturbating was effected by images sent as a MSN attachment, and via Hotmail.

[3] Sending the photo and the video amount to "luring a child" under Section 172.1(b): (count 5 on info). The subsection in question reads as follows:

172.1 (1) Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1(2), communicates with

(b) a person who is, or who the accused believes is, under the age of sixteen years, for the purpose of facilitating the commission of an offence under …Section 173(2) with respect to that person;

[4] The conduct on which Mr. Crant is guilty is incorporated by reference to Section 173(2):

173 (2) Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years

(a) is guilty of an indictable offence and is liable to imprisonment for a term of not more than two years and to a minimum punishment of imprisonment for a term of 90 days; or

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days.

[5] Mr. Crant has denied his responsibility for criminal conduct throughout trial and sentencing proceedings. However, the lengthy statement which he provided to Detective Marshall of the Toronto Police Service on November 17, 2011, shows a clear acknowledgment of his conduct and an understanding that it was wrong. In particular, I note of that statement that Mr. Crant at no stage made any assertion as he did at trial, that he believed the individual he was communicating with to be of "legal age": capable of consenting to sex acts. He did emphasize that he never intended to follow through on any sex acts with a child, that he had never been interested in men under thirty (interestingly, the age when he "came out" and acknowledged his sexual identity). Although Mr. Crant attempted to assert a belief that the complainant was in his late teens, when he testified at trial, I rejected the veracity of that claim, given all of the evidence. I convicted him on two of the six counts alleged, dismissing or quashing the other counts for reasons explained in my judgment of February 23, 2016.

[6] I will review further aspects of Mr. Crant's personal history in due course, on issues of sentencing. I wish only to set the context of the offence at this stage.

B. Crown Position on Sentencing

[7] In 2011, the minimum penalty for the offence of possession of child pornography was 14 days jail, where the Crown has proceeded by summary conviction as here: Section 163.1(4)(b) of the Criminal Code. On the luring offence, under Section 172.1, there was no minimum penalty at the time. Section 172.1(2)(b) provided a maximum term of eighteen months imprisonment where the offence is punishable on summary conviction, as here. Crown seeks a penalty of 18 months to two years on these offences.

[8] Crown has relied on judicial precedent establishing the appropriate range, from the same time period as this incident. Plainly, Parliament has seen fit since 2011 to increase the minimum penalty on the child pornography possession charge, and to impose a minimum for luring offences. I am of course limited to the law setting out sentence as it stood at the time the acts were committed.

[9] The fundamental purposes of sentencing are set out in Section 718 of the Criminal Code:

718 The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, 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:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[10] The objectives of denunciation and deterrence are to be given primary consideration where an offence involved the abuse of a person under the age of eighteen years: Section 718.01. Section 718.2(a)(ii.1) provides that "evidence that the offender, in committing the offence, abused a person under the age of eighteen years" must be taken into consideration as an aggravating circumstance.

[11] The principle of restraint is expressed in two subsections of Section 718.2. Subsection (d) requires that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances. In Subsection 718.2(e) the Court is directed that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders".

[12] Finally, in assessing the key statutory sections guiding this decision, I note that Section 742.1, the conditional sentencing option, applies to the luring offence as it then stood, as it was punishable by a maximum term of imprisonment of eighteen months. It was not otherwise removed from consideration for conditional sentence.

[13] The victim of this offence was well under 18 years of age at the time of the offence. However, the abuse was virtual and limited in time to one series of exchanges on Facebook and a Hotmail photo transmission. This distinguishes the facts here from cases applying Section 718.2(a)(ii.1) where the luring offence led to actual sexual assault took place, or where exchanges over protracted time amount to the "grooming" activity described in the jurisprudence. This process is described in detail by the decisions referred to by Justice Moldaver as he then was, for the Court of Appeal of Ontario, in the case of R. v. Woodward, 2011 ONCA 610. At paragraphs 42, 43, the comments of Fish J. for the Supreme Court of Canada are cited, in the Legare case, 2009 SCC 56:

"But those who use their computers to lure children for sexual purposes often groom them online by first gaining their trust through conversations about their home life, their personal interests or other innocuous topics"

The Court in Woodward concludes that, as set out in the 2002 decision of that same Court in R. v. D.D., "the sentencing objectives of denunciation, general and specific deterrence and the need to separate offenders from society" take precedence over the other recognized objectives of sentencing". (para 39, Woodward)

Thus, the same principles applying to repeated actual sexual violations extend also to the luring offence, independent of physical contact. The exploitation of children is the evil intended to be denounced and deterred by sentencing of these offenders.

[14] Similarly it is noteworthy that the child pornography possession relates to one photo of the child exposing his penis. Sexualizing of the child and inducing him to portray himself in that context to a stranger, albeit one who claimed a link to the child's community, is criminal conduct. It is less aggravated than many of the unfortunate instances of child pornography crimes, where multiple images are found in possession, and where those images often contain violent depravity.

[15] In Woodward, the Court expressed this view of the range of sentence for luring: (para 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 2007 amendment in which Parliament doubled the maximum punishment from 5 years to 10 years. Moreover, if it's shown through the introduction of properly-tendered evidence that the offence of luring has become a pervasive social problem, I believe 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."

[16] I note that in both Jarvis and Woodward, the extended online conduct amounting to luring resulted in face to face meeting for sexual purpose, and actual sexual assault. That is far from the nature of this case. Indeed, the nature of the luring offence here is predicated as it is on the indecent act subsection, 173(2): exposure of genitals for a sexual purpose to a person under the age of 16 years.

[17] However, the clear direction of the Court of Appeal on sentencing adult sexual predators who have exploited innocent children is the following:

"The focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence." (para 76, Woodward).

[18] Crown also urges the observations of our current Chief Justice in Ontario, in the case of Rafiq, 2015 ONCA 768. As to the suitability of a conditional sentence, the Court observes the aggravating features of the case of Mr. Rafiq:

"This case involved a real victim, someone the respondent knew to be a naïve 12 year old girl. He induced her to make and transmit pornographic pictures, insert items in her vagina, masturbate and participate in sexually explicit chats – all for his sexual gratification. He did this repeatedly, over a span of six months. In my view, his conduct was far more harmful than arranging a sexual encounter with an adult police officer believing she was a child."

Defence Position on Sentence

[19] Defence refers me to the decision of our Court of Appeal in 2009, in the case of Alicandro, 2009 ONCA 133. In that case, the sentence of 90 days on a luring offence was upheld, rejecting the position that a conditional sentence should have been imposed. In that case, a police officer posing as a 13 year old girl interacted online with the offender, who masturbated to ejaculation online, and sent messages to the supposed young girl, inviting her to engage in various sex acts. The Court concluded that there was no basis to interfere with the short custodial sentence, which was appropriate in the circumstances.

[20] That decision is of interest as well, as, in examining issues raised on the appeal against conviction, the Court describes the luring offence under Section 172.1 as a "prophylactic" offence, similar to other inchoate crimes of conspiracy, attempt and counseling:

"It is the intention to facilitate the commission of one or more of the designated offences that makes the accused otherwise lawful conduct sufficiently harmful and potentially dangerous to warrant the criminal sanction." (para 21)

[21] Defence asks me to consider that Mr. Crant is in significant jeopardy in jail, as he is, in the defence submission, facing the "quadruple threat" of being gay, aboriginal, a former corrections officer (in fact he was a probation officer many years ago), and convicted of sex offences relating to children. No evidence was called to support this position.

[22] Defence asked that Mr. Crant be permitted to serve a maximum intermittent sentence, in order to minimize the jeopardy of physical harm which he might face in jail.

C. Evidence Relating to the Offender

[23] In February 2016, on entering the convictions in this matter, I ordered a presentence report. On April 8, following the suggestion made by Crown at the February hearing, Defence ordered a Gladue Report. In due course, both were prepared and filed. I noted that the presentence report contained information suggesting that the Offender was protesting his innocence to the presentence report writer. While such material is clearly outside the ambit of a presentence report (section 721, Criminal Code) and in fact inadmissible (see R. v. Essaghaier and Jaser, 2015 ONSC 5855, per Code J; para 51), I recognize that "the offender's age, maturity, character, behavior, attitude and willingness to make amends" is the first designated information to be contained in the report. To a certain extent, the offender's comments about his "innocence" have been significant to me in assessing a fit sentence.

[24] The Gladue Report has been most instructive, prepared with considerable sensitivity to the particular circumstances of this Aboriginal offender by Ashley Quinn of Aboriginal Legal Services. The report assists me in understanding the community where Mr. Crant grew up, and where the complainant resides. Numerous interviews with Mr. Crant were conducted by Ms. Quinn. As well, she conducted telephone interviews with Mr. Crant's good friend and room