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CONSTITUTIONAL ISSUES - Legal rights - Specific remedies - Variation of sentence

Monday, December 02, 2019 @ 9:20 AM  

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Sentencing of the 23-year-old offender who pled guilty to luring and child pornography. The offender befriended an 11-year-old girl through an online game. He sent her sexually explicit messages and photographs during their communications, which consisted of 374 text messages. In the ensuing investigation, the police found two images and 17 videos of child pornography, unrelated to the victim of the child luring offence, on the offender’s computer. The offender had a longstanding history of mental health and behavioural issues and had been identified as intellectually delayed. He spent much of his childhood in residential schools and demonstrated aggressive sexualized behaviour from the time he was eight-years-old. He lacked insight into his offending behaviour. He was on a waitlist for sexual offending treatment. He spent five days in custody before being released on strict bail conditions.

HELD: The offender was sentenced to six months’ imprisonment for child luring and 60 days’ consecutive for possession of child pornography, less three months for presentencing credit. Primary consideration was given to denunciation and deterrence. Considering his guilty plea, lack of prior record, cognitive challenges, age, and the number and nature of his collection, the appropriate sentence for the child pornography charge was 60 days’ imprisonment. The mandatory minimum sentence for child luring was overbroad, grossly disproportionate and violated s. 12 of the Canadian Charter of Rights and Freedoms (Charter). It was not justified by s. 1 of the Charter. The offender’s high risk of sexual re-offending made it inappropriate to grant a conditional sentence. His conduct called for a custodial sentence. A six-month sentence for the child luring offence was appropriate in recognition of the offender’s challenges. As there was no connection between the offences the sentences for each were to be served consecutively. Sentence: Six months’ imprisonment for child luring, less three months’ credit for time served; 60 days’ consecutive for possession of child pornography; three years’ probation; DNA order; lifetime SOIRA order; 10-year weapons prohibition; forfeiture order; non-contact order; 10-year prohibition order under s. 161 -- Criminal Code, ss. 163.1(4), 172.1(1)(b).

R. v. Hems, [2019] O.J. No. 5541, Ontario Court of Justice, J. Bliss J., October 28, 2019. Digest No. TLD-December22019002