Making sexually explicit material available to a child, Luring a child, Possessing child sexual abuse material
R. v. B.K.
A publication ban applies. The offender is not named.
Sentence and the Crown's position
What the law allows
The offender was found guilty after trial of child luring, making sexually explicit material available to a child, and possession of child pornography, for online offences against a child in 2018. The Crown sought 18 months in custody and the defence an 18-month conditional sentence; Judge Tax declined to apply the mandatory minimum sentences on Charter grounds and imposed a combined 18 months in custody, adjusted for totality from 25 months, followed by 18 months of probation. The judge found a conditional sentence would not provide sufficient denunciation and deterrence.
In the judge's words
1As a result, in my opinion, taking into account all of the aggravating and mitigating circumstances of this case, I find that a CSO of imprisonment in the community would not carry sufficient denunciation or specific or general deterrence to satisfy the objectives of sentencing which are paramount in the circumstances of the three offences before the Court.
The record
- Convicted of
- Making sexually explicit material available to a child (CC 171.1)
- Luring a child (CC 172.1)
- Possessing child sexual abuse material (CC 163.1(4))
- Prior convictions
- 0 prior convictions1
- At the time of the offence
- Not stated1
- Defence asked for
- 18 months conditional sentence1
- Mandatory minimum
- Found unconstitutional or not applied under a binding ruling1
- Appeal
- Not yet checked
- Counsel
- Crown: Melanie Perry
Defence: Michelle James
Sources
- R. v. B.K., 2024 NSPC 4 Court decision, CanLII, January 5, 2024
[17] In the final analysis, it is the position of the Crown that the just and appropriate disposition is to impose a sentence of 18 months imprisonment for the child luring offence contrary to section 172.1(1)(a) of the Criminal Code and to impose an 18-month concurrent sentence for the possession of child pornography contrary to section 163.1(4) of the Code and 12 months concurrent for the making of sexually explicit material available to a child contrary to section 171.1(1)(a) of the Code.
[23] Defence Counsel recommends that an 18-month CSO of imprisonment in the community is a just and appropriate sanction
[16] After having considered the joint recommendation made by counsel, and having considered the recent SCC decision in Marchand and other cases provided by counsel, where reasonable hypotheticals in similar situations have been utilized to declare a mandatory minimum sentence unconstitutional, for the purposes of this case, I find that it is appropriate to decline to apply the mandatory minimum sentences for the remaining offences before the court as they likely violate section 12 of the Charter on the basis of a reasonable hypothetical.
[64] However, given the fact that Mr. … has no prior record of any convictions
[175] As a result, in my opinion, taking into account all of the aggravating and mitigating circumstances of this case, I find that a CSO of imprisonment in the community would not carry sufficient denunciation or specific or general deterrence to satisfy the objectives of sentencing which are paramount in the circumstances of the three offences before the Court.
[182] Having considered the totality principle, I am prepared to adjust the combined sentence and reduce it by seven (7) months, which would result in a combined sentence of 18 months imprisonment in a provincial correctional centre. [183] Furthermore, upon the expiration of his sentence of imprisonment, I hereby order Mr. … to be subject to the terms and conditions of a probation order for 18 months.
- R. v. B.K., 2024 NSPC 4 Court decision, Courts of Nova Scotia