R. v. Janho, 2016 ONSC 7099

COURT FILE NO.: 13-0100

DATE: 2016/11/16

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Michael Janho

Defendant

Allisson Dellandrea, for the Crown

W. Mark Wallace, for the Defendant

HEARD: September 13, 2016

REASONS FOR Sentence

C.T. Hackland J.

The Facts

1Mr. Janho has pled guilty to one count of internet luring contrary to section 172.1(1) of the Criminal Code, R.S.C., 1985, c. C-46. This section provides that it is an offence to communicate by means of a telecommunication with a person under the age of 18 years for the purpose of facilitating the commission of an offence under s. 153(1) of the Criminal Code – the underlying offence in this case being sexual exploitation.

2The evidence reveals that for a period of about two and a half months, beginning in the summer of 2012, Mr. Janho, then in his early 30s and employed as a police officer with the Ontario Provincial Police, began a personal and internet relationship with a 15 year old girl. He first encountered her and her friend at a shopping centre while off duty and agreed to their request to give them a ride. He obtained the girl’s contact information and during the period of this relationship, exchanged some 1300 text messages with her. There were messages nearly every day. Only a handful of these messages were sexually explicit. He would meet the girl, provide her with rides, sometimes give her money, buy alcohol for her and bought her an I-Pad. There was no evidence of sexual touching. The girl turned 16 shortly after the relationship began. The accused told the girl he was a police officer at some point early in the relationship.

3This relationship came to light when on December 2, 2012, the girls aunt and legal guardian reported her missing to the Ottawa Police Missing Persons Unit (the “OPS”). The aunt provided the OPS with the cellphone number of a man named “Mike” whose contact information she obtained from the girl’s cellphone. When the OPS telephoned Mike, it turned out to be Mr. Janho. He admitted knowing the girl and said he had ceased having contact with her two weeks earlier when he learned from a third party that she was under 18. He said they were “friends” and acknowledged that they texted each other regularly up to the point of his terminating contact because of her age. Mr. Janho told the OPS that he was an OPP officer and knew that he could be in trouble for this relationship.

4The girl returned to her aunt the following day. The police retrieved the text messages from her electronic devices. She confirmed the relationship described above. The Agreed Statement of Facts discloses that the girl disclosed to Mr. Janho that she was in grade 11 and while initially stating that she was 18, later revealed to him that she was 15, turning 16 in early November.

5I agree with the Crown’s submissions that the text messages had an “exploitative dynamic” and the accused’s regular meetings with the girl can fairly be viewed as advanced predatory behaviour. His ongoing contacts with the girl would have alerted him to the fact that she was a troubled young woman undergoing personal issues with her guardian – in short, he knew she was vulnerable and at risk for exploitation. It is obvious that his text messages, his gifts of alcohol and money, and rides was grooming behaviour aimed at achieving a sexual relationship.

The Offence

6At the time of this offence, the Criminal Code provided for a minimum sentence of 90 days imprisonment and a maximum of 18 months.

7Parliament subsequently increased the penalty for this offence to a minimum of 6 months imprisonment to a maximum of 2 years less a day, signalling the increased concern with internet offences against vulnerable young people.

Positions on Sentence

8The Crown asks that Mr. Janho be sentenced to imprisonment for one year followed by three years’ probation. The defence submits that the proper sentence in the circumstances is 90 days to be served intermittently, so as to allow Mr. Janho to continue a new business he has established and to permit him to be able to continue to support his parents with whom he currently resides.

Pre-Sentence Report

9The Pre-Sentence Report (the “PSR”) is not entirely re-assuring. On a positive note, Mr. Janho “took full responsibility” for the charges in his interview. He said he “exercised poor judgment…I was an idiot for doing something like that, I cannot justify it”. On the other hand, he described the relationship as “innocent flirting”. The author of the PSR reviewed recent psychiatric records where the accused had sought therapy for depression. The psychiatrist’s notes reveal that Mr. Janho sees himself as a victim of police misconduct rather than the perpetrator of an offence. Similarly, the position he took in the OPP internal investigation was that his motivations were “to help a troubled teen.”

10The PSR goes on to express concern that the accused has sought psychiatric intervention only to manage his mental health issues but has not addressed his offending behaviours to date.

11The author of the PSR says she administered two actuarial risk assessment tests (the Stable 2007 and the Static 99R) from which she concluded Mr. Janho is a “moderately high risk to reoffend sexually and/or violently”. I decline to give weight to this observation as I have no information as to the writer’s qualifications and experience to carry out this testing. This type of risk assessment is normally carried out by a psychologist or other mental health professional.

Victim Impact Statement

12The child’s aunt and guardian provided a very insightful victim impact statement. It described how Mr. Janho’s surreptitious involvement with this troubled teenage girl interfered with the aunt’s discipline and parenting efforts and seriously undermined the child’s wellbeing and family relationships. It also caused great anguish to the aunt. She was deeply shocked to ultimately find out the person undermining her niece was a police officer.

Mitigating Factors

13Mr. Janho is a first offender and has lived a pro-social life until this incident. Letters filed with the Court indicate he can be a loyal and helpful friend and has demonstrated bravery in his work as a police officer. Further, his guilty plea spared this girl and her guardian the stress of testifying at a criminal trial. I will note as well that the initial meeting between Mr. Janho and the child was a chance personal encounter at a shopping centre rather than the result of an internet solicitation and this relationship did not advance as far as sexual contact even though they met in person on many occasions.

Aggravating Factors

14That a police officer would embark on an exploitative relationship such as this with a child is shocking. Protecting children is an essential trust obligation of police officers and this offence is an egregious violation of that trust. I am troubled that the accused has minimized his conduct as “innocent flirting” and, as noted, has sought no professional intervention to help him understand and remediate his conduct.

Sentencing Principles

15The case laws makes it clear that deterrence and denunciation are the governing sentencing principles with regard to offences involving the exploitation of children and young people.

16The parties have assisted the Court with a number of sentencing decisions. They confirm my impression that the Crown’s position of one year’s imprisonment is entirely appropriate. I found of particular assistance the sentence decision in R. v. Jepsom, [2004] O.J. No 5521 (Ratushny J). In that case, the Court sentenced an accused to 12 months’ imprisonment. He had sexually explicit conversations over the internet with a person he believed to be a 13 year old girl and arranged to meet her at a restaurant where he was arrested. He had no prior criminal record and he was assessed to present a low risk to reoffend. A number of the cases presented to the Court would suggest an appropriate sentence longer than the Crown is suggesting.

17In the Court’s opinion, Mr. Janho’s status as a police officer at the time this offence was committed and the two and a half month duration of this exploitative relationship with this vulnerable child would make any sentence less than the one year imprisonment sought by the Crown, to be inadequate and would fail to give effect to the sentencing objectives of deterrence and denunciation.

18PLEASE STAND MR. JANHO

19Mr. Janho, I sentence you to imprisonment for a period of one year. This will be followed by a period of probation of three years with the usual statutory requirements. In addition, the probation order will require you to attend and actively participate in assessment and counselling as recommended to address your sexual behaviour and mental health issues. Further, you will have no contact with the victim or her family. Lastly, there will be a SOIRA (Sex Offender Registry) Order (s. 490.013(2)(a)), a DNA Order and an Order under s. 161 of the Criminal Code.