Court File Number: 13-11470
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
BRIAN ROBERT WHEELER
E X C E R P T O F P R O C E E D I N G S
BEFORE THE HONOURABLE JUSTICE P. HOCKIN
on November 10, 2017 at LONDON, Ontario
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO s. 517, ONTARIO COURT JUSTICE DATED OCTOBER 3, 2012
APPEARANCES:
J. Perfetto
Counsel for the Crown
R. Sheppard
Counsel for Brian Robert Wheeler
SUPERIOR COURT OF JUSTICE
T A B L E O F C O N T E N T S
INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO s. 517, ONTARIO COURT JUSTICE DATED OCTOBER 3, 2012
ENTERED ON PAGE
REASONS FOR SENTENCE
1
LEGEND
[sic] Indicates preceding word has been reproduced verbatim and is not a transcription error.
(ph) Indicates preceding word has been spelled phonetically.
Transcript Ordered:
November 16, 2017
Transcript Completed:
December 19, 2017
Ordering Party Notified:
December 19, 2017
FRIDAY, NOVEMBER 10, 2017
R E A S O N S F O R S E N T E N C E
HOCKIN, J. (Orally):
This is the sentencing of Brian Wheeler for reasons delivered December 20, 2016.
Mr. Wheeler was convicted of the offence of entering into an arrangement with an undercover police officer by telecommunication to commit the offence of sexual interference with a female person under the age of 16 years, contrary to section 172.2(1)(b) of the Criminal Code.
Section 172.2(2)(a) of the Code imposes a mandatory minimum sentence for the offence of one year.
Mr. Wheeler challenges the constitutionality of the one year minimum sentence on the basis that imposition of such a sentence is “grossly disproportionate” to the sentence that is fit and proper for him having regard to the nature of the offence and his circumstances. Such a sentence in his case would be “cruel and unusual punishment” and so contrary or an infringement to his section 12 Charter right. The mandatory minimum is unconstitutional, he says, in this case, in his circumstances.
From R. v. Lloyd, 2016 SCC 13, I am instructed by Chief Justice McLachlin on the manner in which I should proceed to determine constitutionality of section 172.2 (2)(a) of the Code. At paragraphs 22, 23 and 24 of Lloyd, McLachlin C.J. writes the following:
The analytical framework to determine whether a sentence constitutes a “cruel and unusual” punishment under s. 12 of the Charter was recently clarified by this Court in Nur [2015 SCC 15]. A sentence will infringe s. 12 if it is “grossly disproportionate” to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender: Nur, at para. 39; R. v. Smith, 1987 CanLII 64 (SCC), [1987] 1 S.C.R. 1045, at p. 1073. A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the court, or if the law’s reasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur, at para. 77.
A challenge to a mandatory minimum sentencing provision under s. 12 of the Charter involves two steps: Nur, at para. 46. First, the court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. The court need not fix the sentence or sentencing range at a specific point, particularly for a reasonable hypothetical case framed at a high level of generality. But the court should consider, even implicitly, the rough scale of the appropriate sentence. Second, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the offence and its circumstances: Smith, at p. 1073; R. v. Goltz 1991 CanLII 51 (SCC), [1991] 3 S.C.R. 485, at p. 498; R. v. Morrisey 2000 SCC 39, [2000] 2 S.C.R 90, at paras. 26-29; R. v. Lyons, 1987 CanLII 25 (SCC), [1987] 2 S.C.R. 309, at pp. 337-38. In the past, this Court has referred to proportionality as the relationship between the sentence to be imposed and the sentence that is fit and proportionate: see e.g. Nur, at para. 46; Smith, at pp. 1072-73. The question, put simply, is this: In view of the fit and proportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances? If so, the provision violates s. 12.
Then she goes on at paragraph 24 to say:
- This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment. To be “grossly disproportionate” a sentence must be more than merely excessive. It must be “so excessive as to outrage standards of decency” and “abhorrent or intolerable” to society: Smith, at p. 1072, citing Miller v. The Queen 1976 CanLII 12 (SCC), [1977] 2 S.C.R. 680, at p. 688; Morrisey, at para. 26; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96, at para. 14. The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders for whom the sentence would be grossly disproportionate.
In this case then, what constitutes a proportionate sentence having regard to the objectives and principles of sentencing in the Criminal Code? To begin I am guided as follows:
Account must be taken of the sentencing objectives in section 718 of the Code.
From paragraphs 41, 42, and 43 of Nur, again by the Chief Justice, at those paragraphs she instructs as follows:
The sentencing judge must also have regard to the following: any aggravating and mitigating factors, including those listed in s. 718.2(a)(i)-(iv); the principle that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); the principle that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (s. 718.2(c)); and the principle that courts should exercise restraint in imposing imprisonment (ss. 718.2(d)-(e)).
In reconciling these different goals, the fundamental principle of sentencing under s. 718.1 of the Criminal Code is that “[a] sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
And she goes on to say:
- It is no surprise, in view of the constraints on sentencing, that imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime: R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 80. “Only if this is so can the public be satisfied that the offender ‘deserved’ the punishment he received and feel a confidence in the fairness and rationality of the system”: Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 533, per Wilson J. As LeBel J. explained in R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433:
Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system.
Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other. [para 37]
Section 172.2(1)(b) criminalizes conduct. This is my language now; this is not a quote. Section 172.2(1)(b) criminalizes conduct which precedes the commission or attempted commission of a number of designated crimes which involve various sexual offences on persons under the age of 16 years. It is conduct of a particular type; it is conduct which has as its objective the co-opting of a person to facilitate the sexual exploitation of a child. Through the Internet the accused attempts to secure the consent or cooperation of someone who purports to be able to present a child for his or her sexual purpose. The offence is “prophylactic” in that it “seeks to prevent the commission of the designated crimes by criminalizing conduct that occurs on the way toward the commission of the designated crimes” to borrow from Doherty J., at paragraph 21 of R. v. Alicandro, (2009), 2009 ONCA 133, 95 O.R.(3d)173 (C.A.). Unchecked this behaviour could well lead to commission of a designated offence, or it seems to me, to damaging the emotional well-being of the accused’s interlocutor’s child as a result of his or her preparation of the child for performance of the agreement.
In cases involving children and their exploitation through the Internet, the objectives of general deterrence and denunciation, save in the rarest of cases, hold sway. There is an often-quoted statement by Chief Justice McMurtry in R. v. Folino (2005), 2005 CanLII 40543 (ON CA), 202 C.C.C. (3d) 353 (C.A.) at paragraph 25, where he said the following:
Having come to this conclusion, I wish to first make it clear that I fully agree with the sentencing judge that the offence of child luring must be dealt with seriously by the courts. The social policy underlying the enactment of this offence is clear. Many Canadian families have home computers with Internet access. Children are frequent users of the Internet. Children, as vulnerable members of our society, must be safeguarded against predators who abuse the Internet to lure children into situations where they can be sexually exploited and abused. In most circumstances involving the offence of child luring, the sentencing goals of denunciation and deterrence will require a sentence of institutional incarceration. Indeed, it will only be in the rarest of cases that a conditional sentence will be appropriate in a case involving this offence.
Now, that of course dealt with s. 172.1 but of course it applies with equal force to s. 172.2.
On quantum there is this statement by Watt J. in R. v. El-Jamel (2010) 2010 ONCA 575, 261 C.C.C. (3d) 293 (C.A) at paragraph 35:
The predominance of the sentencing objectives of deterrence and denunciation yields a general rule that the sentence imposed on convicted child lurers will be one of institutional or actual incarceration for a term of 12 months to 2 years: Folino at para. 25; Jarvis [(2006), 2006 CanLII 27300 (ON CA), 211 C.C.C. (3d) 20 (C.A.)] at para. 31; Alicandro at para. 49. The general rule is not without exception: the term of imprisonment may be served conditionally rather than institutionally. But the teachings of Folino are that conditional sentences of imprisonment are only appropriate “in the rarest of cases”: Folino at para 25.
Watt J. in El-Jamel was a dissenting voice, but there is no quarrel with this short statement of the range of sentence in such a case as this.
Beyond this sentence I am instructed by the following cases which I have reviewed in preparing these reasons: R. v. K.T., 2016 ONCJ 222, (18 months); R. v. Rodwell, 2016 CarswellOnt 21097 (Ct.J.) (2 years); R. v. Van Es, 2016 ONCJ 827 (2 years); R. v. D.C.M. 2015 ONCJ 672 (15 months). Having said that I’ve looked at those cases, they were all piled into a huge number of other offences with the consecutive and concurrent sentences, so they were not very helpful.
I accept that for my purpose I had to take into account the Court’s mandate under section 718.2(b) that a sentence should be similar to sentences imposed on similar offenders. The prevailing range on similar offences and similar offenders is 12 months to 2 years. I consider the following circumstances of the offence and the offender to be mitigating circumstances:
Mr. Wheeler is 52 years of age, he’s from a stable and supportive family. His mother and brother have stood by him throughout.
The price of his misconduct has been great. His marriage has ended and his relationship with his children has been impaired. He has paid a high price for his behaviour.
He has — there is rather, no record. He has lived a completely pro-social life.
He has always been employed; he has been a useful member of society.
He expresses great remorse for his behaviour. It is genuine. He has demonstrated insight into his short-comings.
In short months after his arrest he was assessed by a psychiatrist, Dr. Pearce, for the purpose of assessing future risk of re-offence with young people. This included the classic actuarily-based VRAG and PCLR and after those assessments, Dr. Pearce’s opinion was that:
Overall, given the aforementioned risk assessment and PCL:SV score, it is my opinion that this gentleman is at a low risk of future of sexual offence given that he does not meet with the criteria for a paraphilia, does not abuse alcohol or drugs, has no criminal record and is not personality disordered.
The pre-sentence report is a very positive report. The author of the report states at page 8 as follows under the title of “Assessment”:
[As Read] Before the Court stands Brian Wheeler, a 51-year-old first-time offender awaiting sentencing having been found guilty of luring a child contrary to section 172.2(2) of the Code. The subject is well-educated and reported a positive upbringing in which he received all necessities and was well supported by family. Sources reported the subject to be kind and dedicated to his responsibilities, however lacking in emotional awareness and attachment. He acknowledges his disconnection between his cognitive understanding of relationships and having empathy for others. Despite his education and success in employment, he lacks emotional intelligence. It would appear the subject has been engaged in meaningful assessments and counselling since his release from custody in 2012. However, his overwhelming anxiety due to his legal circumstances has also taken priority in some of his counselling sessions. Professional sources indicated positive change, specifically in the past year, further noting that the subject has acquired a deeper understanding of his emotions and established more appropriate coping skills for his needs and anxiety.
So, the pre-sentence report is a positive one.
I consider the following circumstances of the offender and the offence, and the offence to be aggravating circumstances:
The agreement reached to obtain the cooperation and consent of the parent of the child was to pave the way to the commission of the offence of sexual interference and it required of his interlocutor her breach of the important trust of the child and mother relationship. He was oblivious to this. His interest was “Internet chicken”: a game, in other words. His evidence with respect to his interlocutor was, “As I don’t care, it makes no difference to me what she wants to do.”
There was about his behaviour a constancy of purpose. There were many Internet conversations and they were directed at the nature and extent of his sexual invitation to the mother and child. The conversations were explicit.
He was serious about his intention or agreement. He travelled to the Tim Horton’s restaurant to continue his design, at least of Internet chicken.
It is the case that the accused did not meet a child, nor would he have proceeded with the stated objective in his agreement with Detective Johnson, but he ignores, but this ignores rather, the probable result or risk his behaviour presented to a child; that is, at the very least, the disconcerting behaviour of a mother to a daughter in preparation for a meeting.
The last and fundamental principal of the court sentencing regime under section 718 of the Code is that the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
The offence is a serious offence. The objective of section 172.2 is to protect the most vulnerable members of society, children and young people, from behaviour which we know empirically and scientifically, will have a long-lasting adverse affect on their enjoyment of life.
I’ve returned to the language of Chief Justice McMurtry in Folino:
I wish to first make it clear [he said] that I fully agree with the sentencing judge that the offence of child luring must be dealt with seriously by the courts. The social policy underlying the enactment of this offence is clear. Many Canadian families have home computers with Internet access. Children are frequent users of the Internet. Children, as vulnerable members of our society, must be safeguarded against predators who abuse the Internet to lure children into situations where they can be sexually exploited and abused.
The seriousness of the offence means that general deterrence and denunciation assume relevance and weight, generally and in this case.
The accused is genuinely remorseful. He has accepted counselling, he has gained insight into his personality. There has been a good-faith effort at rehabilitation. Specific deterrence need not be taken into account, in my view. Although it is the case that the foreseeable result or risk to a child was not on the accused’s mind, this was only a game of Internet chicken and he would not have carried on with the agreement beyond the Tim Horton’s meeting, with the titular mother, this does not, in my view, reduce the great degree of responsibility Mr. Wheeler must accept that he could have put in motion an event which put at risk the emotional well-being of a young person. This evidence that it made no difference to him what his interlocutory, the titular mother, did may only be described as morally blameworthy conduct. A fit and proper range of sentence, an appropriate range of sentence, in my view, is 9 to 12 months imprisonment. It follows from this conclusion that the minimum sentence of 1 year is not grossly disproportionate. In arriving at this conclusion, I have not overlooked the result in R. v. Morrison, 2017 ONCA 582, but that is a different case and in Morrison, the accused did not believe his interlocutory was underage. That is not this case here. The accused understood the child was 12.
E N D O F E X C E R P T O F P R O C E E D I N G S
Form 2
CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))
Evidence Act
I,
Peggie Cooper
(Name of Authorized Person)
certify that this document is a true and accurate transcript of the recording of
R. v. BRIAN ROBERT WHEELER
in the
Superior Court of Justice
(Name of Case)
(Name of Court)
held at
LONDON, ONTARIO
(Court Address)
taken from Recording
2311_CrtRm19_20171110_093623__10_HOCKINP.dcr
, which has been certified in Form 1.
December 19, 2017
P. Cooper
- This certification does not apply to the Reasons for Sentence which was/were judicially edited.