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Criminal Law - CONSTITUTIONAL ISSUES - Canadian Charter of Rights and Freedoms - Protection against cruel and unusual punishment - Protection against cruel and unusual punishment

Thursday, December 15, 2016 @ 7:00 PM  

Sentencing of the offender, Adams, for sexual offences against children. The offender used the internet to lure or attempt to lure 12 teenage girls into sexual contact and/or providing pornographic images, some of whom complied with his requests. He was convicted of multiple offences, including internet luring, criminal harassment, sexual interference, uttering threats, and distribution of child pornography. The accused, age 22, did not have a prior record at the time of the offences. The Crown sought a 14-year sentence, less credit for 20 months served in remand. The offender sought a stay of proceedings on constitutional grounds with declaratory relief. He submitted that the conditions of his detention in remand breached his ss. 7 and 12 Charter rights. The offender submitted that he was singled out for retributive treatment by guards and inmates. He claimed he was assaulted by a guard, inmates and cleaners, and subjected to an abusive inhumane strip search in addition to ongoing unwarranted abuse and disciplinary measures.

HELD: Adams was sentenced to 12 years and three months’ imprisonment, less six years’ credit based on a breach of his s. 12 Charter rights. The general conditions of the offender’s time in remand were no different than those experienced by other inmates and did not give rise to a Charter breach. The complaints made by the offender of assaults by other inmates, the nonchalance of guards respecting his safety, and the petty and vindictive disciplinary tactics, were established in some instances. Although none of the instances individually rose to a level justifying analysis under s. 12 of the Charter, they collectively provided sufficient context for such analysis. The offender’s contention that he was beaten by a guard was corroborated by evidence of his injuries. The circumstances demonstrated a violation of the offender’s s. 12 Charter rights. The offender was beaten by a guard in his cell. He suffered assaults by other inmates, he was threatened by other inmates and cleaners, all of which occurred in circumstances where the guards had to be taken to know that such activities had or were likely to occur and did little to protect against such events. The treatment of the offender during his time in remand was unusual and cruel. The appropriate remedy was enhanced credit of six years for time served rather than a stay of proceedings. The use of social media to prey on the vulnerabilities and insecurities of multiple victims, some of whom were induced to engage in sexual misconduct, justified a sentence of 12 years and three months, less six years’ credit. Sentence: two years’ imprisonment for internet luring; four concurrent 18-month terms for four counts of internet luring; 3.5 years’ consecutive for sexual interference; three concurrent 30-month terms for three counts of sexual interference; six months’ consecutive for criminal harassment; three months’ concurrent for criminal harassment; three months’ consecutive for uttering threats; 12 months’ concurrent for distribution of child pornography; ten-year s. 161 order — Criminal Code, ss. 163.1(3), 172.1(1)(a), 172.1(1)(b), 264(2)(b), 264.1(1)(a).