Court Information

Date: June 4, 2018

Information No.: 2811 998 16 33512

Ontario Court of Justice

Her Majesty the Queen

v.

Gordon W. Randall

Reasons for Ruling

Before the Honourable Justice G. Wakefield

on June 4, 2018

at Oshawa, Ontario

Publication Ban

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO s. 486.4 OF THE CRIMINAL CODE, ISSUED BY J.P. M. HEWITT ON SEPTEMBER 26, 2016. ANY PUBLICATION CONTRARY TO s. 486.4 IS A CRIMINAL OFFENCE.

Appearances

• T. Boodoosingh – Counsel for the Crown
• J. Shulman – Counsel for Gordon Randall

Reasons for Ruling

On Constitutional Challenge to Minimum Sentence and Sentencing

WAKEFIELD, J. (Orally):

Gordon Randall pled guilty on March 20th, 2017, to luring, contrary to s. 172.1(1) of the Criminal Code of Canada for an offence which occurred between February 1st and February 2nd, 2016. This plea arose out of prior judicial pre-trials in which the plea had been forecast a substantial amount of time earlier.

In short, this was a matter in which the defendant was prepared to take responsibility from the start.

The Crown elected to proceed summarily invoking a six-month incarceration minimum sentence, though their position was one of 9 to 12 months incarceration. Essentially, the Crown position was that the minimum was for the least egregious offenders.

Subsequently, the mandatory one-year minimum sentence for this offence when proceeded with by way of indictment was struck down, but only for indictable elections. The result is that an indictable election lacks any minimum sentence, while the summary election does have a minimum. In other words, the least egregious offender against whom the Crown elects by way of indictment can receive a lower sentence than the same offender on the same facts would receive if proceeded summarily.

As such, Mr. Randall has made application pursuant to s. 7 and 12 of the Charter of Rights for an order that s. 172.1(2)(b) of the Criminal Code is inconsistent with s. 12 of the Charter and cannot be saved by s. 1 of the Charter with the result that it should be declared of no force and effect in this proceeding in order to permit a just and fit sentence to be imposed.

Facts of the Plea

The facts of the plea can be summarized as follows: the defendant is a divorced 50-year-old male with no prior record. He places an internet advertisement desiring to meet girls of any age. The "any age" criteria prompted the interest of the Durham Regional Police who then in turn reply pretending to be a 15-year-old girl by the name of Cara. During their chats, the defendant sends videos of a male exposing his genitalia and masturbating. In his chats with the girl, the defendant expresses an interest in sexual activity, including bondage and domination.

The Defendant then texts Cara about his currently training another girl young like Cara. While no other such girl existed, that comment still resulted in the police setting up a quick meeting at which he attends and is arrested. The defendant claims to the police that he is meeting the girl only with the intent to warn her of the dangers involved with internet chatting and meeting with strangers.

In searching the defendant's car incident to arrest, the police find a knapsack containing a variety of domination and submission devices including a slave collar, ball gag, whips, nipple clamps, a butt plug and a jelly tube. I find as a fact that had the internet girl been real rather than a police construct, that the defendant would have used any or all of the devices found in the knapsack, as why else bring them along for a rendezvous in which submissiveness and bondage were part of the communication and expressed purpose of the meeting.

Additionally, I note that in order to facilitate the offence, the provision of genital and masturbatory material would have the effect of desensitizing a real person as well as to lower such a child's inhibitions which, in my view, amounts to a type of grooming further evidenced in the chats about whether Cara had watched the videos that were sent to her.

Had Cara been a real person, this rendezvous had all the potential of causing life long trauma to Cara, if not a level of violence that could turn tragic. However, Cara was not a real person and there was not any physical harm.

The offence occurred over a 48-hour time span as opposed to multiple continuing conversations over weeks or months. The short time span though was as much in the control of the police who interceded in order to prevent the defendant from being in contact with what they believed to be an apparent real victim.

Sentencing Principles

In determining an appropriate sentence, I must apply the principles set out in s. 718 of the Criminal Code and following. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

While Cara was not a real person, her persona was that of a 15 year old child and engages the need to give primary consideration to the objectives of denunciation and deterrence as set out in s. 718.01, although in the context that it is the offence which engages this sentencing principle, not the fact of a real child under eighteen being abused as set out in s. 718.2(a)(ii.1) nor was there any impact on the victim, as in s. 718.2(a)(iii.1). I also note the very nature of the luring offence already takes into account the sentencing principles regarding the protection of children.

While the absence of aggravating factors is not a mitigating factor, I do note the lack of any child pornography, or any other similar predatory conversations with anyone else. This event would appear to be Mr. Randall's first foray into criminality.

As Mr. Randall is a first offender, a primary objective is also deterrence, but rehabilitation as well.

Personal Circumstances of the Offender

Mr. Randall has managed to reach middle age without prior criminality, despite his own emotional traumas, including being the victim himself of a sexual assault and witnessing his father's infidelity with a teacher from the defendant's primary school which resulted in the break-up of his family and the defendant being bounced between his two parents' residences and that of a family friend.

Mr. Randall married, but marriage broke up in 2013, reportedly due to his former spouse's abuse of alcohol. That relationship produced a son and daughter who stayed with the defendant, but whom have minimal contact with their mother.

The defendant's son I am advised is both autistic and described as delayed, resulting in the need for continuing supervision. Now nineteen, he continues to reside with the defendant.

The defendant's daughter is 22, and also has mental health challenges requiring medication and therapy. Currently the defendant's surety, she also resides at home with her brother and father. However, I also note that both siblings are sufficiently competent to have been approved as sureties.

Neither child is currently employed and rely upon the defendant both financially and emotionally, although his daughter accompanies him to his place of work as part of her suretyship duties.

The defendant runs his own business which suffered due to the charges. A new business opportunity would require regular travel to Montreal. While owning his own residence, he is still paying a mortgage. Presumably, any loss of employment would put his mortgage at risk as well as the security of residence for both children dependant upon their father even though they are now adults.

The pre-sentence report also confirms that at the time of this offence, he was taking prescribed Lorazepam for the stressors in his life with which he consumed alcohol resulting in diminished self control. He has since discontinued that medication and engaged in psychotherapy resulting in an observed change in his personality for the better. I understand these reports to demonstrate that one of the causation factors for this offence has since been eliminated.

That psychotherapist confirms both the defendant's "significant trauma history" and the benefit he is apparently deriving from their sessions.

The report from Dr. Gojer describes the defendant as someone whose risk assessment is at the low end of the spectrum. The report also urges that any sentencing take into account the impact on the defendant's depression and the consequences to his family constellation. It also sets out a post separation relationship with a 19-year old, which engaged a further hebephiliac behaviour assessment which concluded the unlikeliness of pedophilia or hebephilia risk. Additionally, the defendant's daughter describes that relationship as one more of the defendant being taken advantage of financially in the context of a bondage relationship in which the other woman's boundaries were respected by the defendant, as set out in Dr. Gojer's report.

I also note that Mr. Randall has been on a surety release since his arrest February 2nd, 2016, without any alleged breaches and complied with a house arrest provision subject to a surety exception in order to go to work, albeit supervised by the surety at all times. The effluxion of time in excess of two years is some comfort to the community as to his ability to comply with court orders and not reoffend. Additionally, that length of house arrest is also a factor in arriving at an appropriate sentence.

The defendant upon arrest was held for bail hearing and released after three days. There was a surety substitution which went awry, resulting in a short period of further pre-trial detention of either one or two days which I am prepared to assess at one day for a total of four days, grossed up to six days of enhanced pre-trial detention.

Sentencing Analysis

Both Crown and Defence have filed case law with a wide range of factual comparisons and sentencing ranges. The aggravating difference here is the presence of bondage paraphernalia together with a personal history of the defendant's desire for bondage and sexual encounters, though I accept that form of sexual preference for this offender is as much a result of his own victimization. This aggravating aspect of the agreed statement of facts certainly takes this offender outside of the least egregious offender deserving of the least intrusive sentence.

Putting aside the minimum sentence for this offence, it is my view that the aggravating factors of the fictional age of the purported victim, together with the presence of bondage paraphernalia though taking into account that there was no actual victim, a sentence of six months incarceration followed by a probation with the mandatory ancillary orders would be an appropriate balancing of all the competing sentencing principles for the facts of this offence, as opposed to the facts of the offender.

When I take into account the personal circumstances of this offender, the consequences to his business, his residence and as importantly his children and each of their special needs, the fact of his being a first offender, that one of the causations for the offence has since been eliminated, the remedial work that he has already taken, the insights of the psychological reports, the lengthy period on house arrest without issue, and while minimal, the pre-sentence custody, I assess a sentence of three months intermittent on top of the grossed up six days pre-sentence custody together with a concurrent three year probationary period, would be the most appropriate balancing of all the personal circumstances promoting rehabilitation while asserting the principles of deterrence both individually and generally, and denunciation.

However, given the minimum six-month sentence, which would be reserved for the least egregious offender, my view would then be a sentence of nine months incarceration, being the least sentence I could impose balancing those aggravating factors with the mitigating factors of an early forecast plea and the personal factors of the offender and his family, in the context of complying with the minimum sentence.

Defence has already conceded the difference between the appropriate sentence and the one necessitated by the minimum sentence does not amount to a difference which is grossly disproportionate. However, the Defence also urges the next step in the analysis.

Constitutional Analysis

I do note that I am not obliged to consider the constitutionality issue (R. v. Lloyd, 2016 SCC 13, paragraph 18). However, given the disparity between indictable and summary election minimum sentences, and the different starting points to determine a sentence for the least egregious offender in order to compare to this accused with those facts, I have decided it is an exercise in which I should engage.

I acknowledge that in Lloyd and Nur the bar to find a section unconstitutional is high, that the minimum sentence must be "grossly disproportionate" compared to the appropriate sentence having regard to the nature of the offence and the circumstances of the offender.

Even if not disproportionate to this offender, should the minimum sentence be disproportionate to other offenders or hypothetical offenders, then the minimum sentence would still be inconsistent with s. 12 of the Charter and will fall if not saved by s. 1 of the Charter.

Section 172.1(1)(b) does carefully delineate the specific limited scenario which would trigger the mandatory minimum in an offence which punishes harmful and blameworthy conduct towards vulnerable children whose parents or guardians are not exercising sufficient monitoring of the child's social media. However, and to myself somewhat oddly, the same minimum sentence applies to victims under eighteen years old or sixteen years old or even fourteen years old, albeit on differently cited offences, despite the increasing vulnerability and presumed increased harm for the younger the child becomes. I also note that the listed offences in s. 172.1(1) of s. 151 or s. 152 have a ninety-day minimum sentence. The only substantive difference between these sections would appear to be the mode of communication with the victim, which is beyond touching distance as opposed to being within touching distance and with it, in my view, a much greater risk to the child when the offender is within arm's reach.

Again, oddly to myself, while communicating for the purpose of committing an offence under s. 271 has a minimum sentence, the actual commission of that offence under s. 271 does not, just as actually committing an offence under s. 281 does not. The actual harm under s. 271(1) is attempting to prevent has a lower sentencing bar than mere communication. However, it must be respected by any court when Parliament clearly sets out its view of the seriousness of the subject offence by setting out a minimum sentence and then doubling that minimum, as is the case at bar.

A mandatory minimum also has the effect of casting a wide net over any number of different scenarios with widely divergent levels of blameworthiness and actual harm.

I have been provided a number of cases by both Crown and Defence in this application, which are part of the record. However, I agree with Mr. Shulman that the most evocative example is the real life sentencing facts found in R. v. S.S., 2014 ONCJ 184.

In S.S., Justice Griffin received a guilty plea on the following facts: Mrs. A.C. on November 8, 2012, reported to the police that her 16 year old son was receiving messages from an older male, S.S., on his Facebook account. These messages included asking the young man to do something of a homosexual nature, such as provide photographs of the young man with his shorts and boxers off, have a shower with S.S., touch S.S., put on a condom. There would be inducements, such as letting the young man drive S.S.'s car, payment of money, provide $200 to buy new hockey skates. S.S. also advised the young man that a person named C.L. would pay money to perform sexual acts with him. The young man in question rebuffed S.S., but S.S. persisted in his messaging. The young man made it clear to S.S. that the sexual invitations were unwanted and S.S. apologized, but then renewed the unwanted invitations. There was never any sexual touching between the young man and S.S. S.S. was 20 years old at the time, with the young man being 16. The time period in question was from early October 2012 through November 12, 2012.

Unlike Mr. Randall, S.S. was a 20-year-old developmentally delayed youthful offender with an IQ of 81. However, like Mr. Randall, S.S. was also a sexual abuse victim himself. Unlike Mr. Randall, S.S. continued his importuning of a real person over about a month which also led to that victim becoming involved with another perpetrator. Mr. Randall at 50 years of age and presumably of average intelligence is more blameworthy then S.S. from intellectual perspective, but less blameworthy in that there was no actual harm done to any individual person, despite Mr. Randall's clear intentions.

Justice Griffin concluded a sentence of 14 to 21 days would be appropriate for S.S., and that the then minimum sentence of 90 days was excessive, but not grossly disproportionate. I note that now the minimum has since been doubled and of course the same conduct within an indictable election would not have any minimum sentence at all.

My understanding of R. v. Solowan 2008 SCC 62 is that it negates the more historical view that a Crown's decision to elect summarily is an indication of the prosecutor viewing the charge as less serious. At paragraph 15, the Court held that, "A fit sentence for a hybrid offence is neither a function nor a fraction of the sentence that might have been imposed had the Crown elected to proceed otherwise than it did. More particularly, the sentence for a hybrid offence prosecuted summarily should not be "scaled down" from the maximum on summary conviction simply because the defendant would likely have received less than the maximum, had he or she been prosecuted by indictment".

Unlike the subsequent case of R. v. Mermer, [2015] O.J. No. 2857, it is my view that the discretion of a Crown encompasses many factors and not merely an assessment of the seriousness of the offence. Other factors may include preserving a complainant from testifying twice, local judicial resources, Jordan time limits, or even defence agreement to waive limitation periods to permit summary election (though, as unlikely that would be today with a minimum sentence on the summarily election only). The only sentencing impact of electing summarily should be capping the maximum sentence available to the Court. That is no longer the case since the removal of the minimum sentence upon indictable elections.

The prior holding that the minimum sentence of one year on indictable elections was unconstitutional has had an impact on the validity of the still surviving minimum sentence following a summary election and upon the public perception, in my view, of that impact on sentencing and the role the Crown plays in creating that impact.

Indeed, I cannot think of any Crown counsel whom I have seen in court who would exercise their election discretion with improper motives. Specifically, I am not finding improper conduct by any Crown, but rather the risk of public perception only.

As important as that prosecutorial discretion is reviewable only for abuse with the presumption that the discretion will be exercised in good faith (R. v. Anderson, [2014] S.C.C. 41), which not only confirms the protected status of the discretion, but reinforces the separate distinct roles of Crown prosecutor and the sentencing justice. At paragraph 25, the Court states that, "It is the judge's responsibility to craft a proportionate sentence. If a mandatory minimum regime requires a judge to impose a disproportionate sentence, that regime should be challenged." That sentiment was reflected again by Justice Bacchus in R. v. Okoro, [2018] O.J. No. 2102, referencing Nur, at paragraph 65.

However, that public perception would be observing a Crown's decision to elect summarily to deprive an offender of having the same starting point in assessing an appropriate sentence. The least egregious offender would have a sentence potentially six months shorter as a benefit to an indictable election. The different sentencing starting points has created an automatic "scaling up" upon a summary election, the very opposite effect of the concern expressed in the Solowan case. I am concerned that the public perception of this would undermine the public's confidence in the justice system.

Another consequence of a summary election would be to immediately deprive any permanent resident of the ability to appeal a deportation order made due to the conviction of this offence, as a sentencing judge would be barred from considering a sentence of six months less one day to keep available any deportation appeal options.

I further note that the disincentive to consent to a summary election in historical offences increases the cost in judicial resources and subjects victims to the prospect of testifying twice unnecessarily.

The consequences of a summary election, in my view, is to create barriers to proportionate sentences which would not be present in an indictable election and as such must be challenged. The consequences to the above discussed hypotheticals in my view would shock the conscience of the public.

I conclude that the consequences of a minimum sentence to the hypothetical offenders discussed above and in the filed case law are grossly disproportionate to an appropriate sentence, taking into account not only the seriousness of the offence which is very high, though inconsistent with the lack of minimum sentences in many of the offences this section is trying to prevent, I find that this minimum sentence breaches s. 12 of the Charter.

Section 1 Charter Analysis

Is the minimum sentence saved by s. 1 of the Charter? As R. v. Oakes [1986] 1 S.C.R. sets out, the Crown must firstly demonstrate the rational connection to the section's objective and second, that it is only minimally impairing the infringed upon right and proportionality, the last factor being difficult to justify given my finding of gross disproportionality.

With respect to the rational connection to the objective of the impugned section, a deterrent sentence to prevent the use of telecommunications to prevent harm to children is at first blush rationally connected, especially where telecommunications are not always monitored properly by adults. However, where actual harm takes place without minimum sentences, that rationality is severely undermined. The section certainly does not differentiate between actual children being contacted and make-believe children or the personal circumstances of offenders into account. By way of analogy, every drinking driver is a danger to our community, but escalated sentences occur most when actual harm is caused. The prevention of imposing a rehabilitative sentence, in my view, harms the community more with respect to some personal circumstances of some offenders. The prevention of sentencing options, such as an intermittent sentence preserving employment and the ability to support a family and maintain residence, the loss of immigration appeal rights, or in the case of the least egregious offender, the loss of an equivalent sentence that would be available upon an indictable election, are all examples both individually and cumulatively far more than minimally impairing the infringed upon right to an appropriate sentence.

I do find a s. 12 breach and further find that breach is not saved by s. 1 of the Charter.

Sentencing Decision

It follows that having found a s. 12 breach, I am able to note four days pre-sentence custody grossed up to the equivalent of six days and further sentence Mr. Randall to a term of incarceration of 90 days, to be served intermittently, with a concurrent three-year probationary period with the following terms.

You will keep the peace and be of good behaviour, you will appear before the Court when required to do so. You will notify the Court or the probation officer in advance of any change in your name or address and promptly notify the Court or the probation officer of any change in your employment or occupation. You must appear at the jail to serve your intermittent sentence on time and in sober condition, with the blood alcohol concentration of zero and not under the influence of or in the possession of any controlled substance, unless you are taking that controlled substance pursuant to the lawfully obtained prescription. You will report in person to a probation officer within two working days and after that at all times or places as directed by the probation officer or any person authorized by your probation officer to assist in your supervision. You will live at a place approved of by the probation officer, not change that address without obtaining the consent of the probation officer in advance.

For the first 12 months of this order, you will obey a curfew set by your probation officer, the exceptions on it being for any medical emergencies involving you or any member of your immediate family. You must provide a written justification to the probation officer within 72 hours of any absence during curfew hours. For any hospital visit or funeral attendance, again, you must provide a written justification to the probation officer prior to any such absence during your curfew hours.

You are not to possess any weapons as defined by the Criminal Code, including BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition, explosive substance or anything designed to be used or intended to be used to cause death or injury or to threaten or intimidate any person.

Paragraph 11, you will attend and actively participate in all assessment, counselling or rehabilitative programs directed by the probation officer and complete them to the satisfaction of the probation officer.

Under "other", all counselling that will assist in addressing underlying issues and to promote rehabilitation. You will sign any release of information forms as to enable your probation officer to monitor your attendance and completion of any assessment, counselling or rehabilitative programs as directed.

Community service – to help balance out the denunciatory component of any sentencing, you will perform 120 hours of community service work on a written schedule to be directed by the probation officer, but must be completed within 18 months of the start date of this order.

Ancillary Orders and Intermittent Sentence Details

Pursuant to s. 161 of the Criminal Code, you are prohibited attending a public park, a public swimming area where persons under the age of 16 years are present or can reasonably expected to be present or a daycare centre, school ground, playground, a community centre, except while in the direct company of an adult over the age of 21. That seeking, obtaining or continuing any employment, whether or not the employment is remunerated or being in a volunteer capacity, that involves being in a position of trust or authority towards persons under the age of 16 or from having any contact, including communicating by any means with a person under the age of 16 years, except in the company of an adult over the age of 21, or except for the purposes of a retail or service transaction at a commercial establishment. And finally, you are prohibited from using the internet or any similar communication service, except as being required for the purposes of your employment or a recognized educational or vocational program and that will be for a period of 10 years from the release from custody.

Intermittent Sentence Schedule: You will be taken into custody today, processed in Lindsay jail for at least later today. You are ordered to turn yourself in at 8:00 p.m., Friday, June 15, 2018, to be released Sunday, June 17th, 2018 at 6:00 p.m. This is 8:00 p.m. on the Friday to 6:00 p.m. on the Sunday and every Friday to Sunday thereafter until the sentence is served. The sentence is to be served at the Toronto South facility (130 Horner Avenue).

DNA Order: DNA is conceded and there will be an order that you provide a sample of your DNA, to be done either today before you leave or you will be given direction on how to proceed with that.

SOIRA Order: A 10-year Sex Offender Information Registration Act (SOIRA) order is imposed.

Victim Surcharge: $100, payable within 90 days, with one day in jail if not paid.

Property Order: A s. 490 forfeiture order is executed with respect to items seized. A cellular telephone will be returned.

Closing Remarks

It has been a very long road for you, Sir, I know that. This hopefully brings some certainty into your life and those of your children. It is not going to be a pleasant few months in front of you with respect to the weekends, but try to craft something that allows you to salvage the rest of your life in terms of your business and your residence. Please, do not abuse the intermittent sentence, make sure you get there on time or there are additional charges. Other than that, I do not expect I will see you back here again. Good luck, Sir.

The remaining counts can be marked withdrawn.

Released: June 4, 2018

Justice G. Wakefield