Article originally published on July 17, 2018 by Advocate Daily.
Toronto criminal lawyer Aaron Harnett says the mandatory minimum six-month sentence his client faces for child luring is unconstitutional and amounts to cruel and unusual punishment.
Harnett, principal of Aaron B. Harnett Criminal Defence Lawyer, says in a factum to the Ontario Court of Justice that the circumstances of his client’s case, which involves a single text message sent by a man with a previously unblemished record, show that the mandatory minimum sentence for the offence breaches s. 12 of the Charter. This section provides that “everyone has the right not to be subject to any cruel and unusual treatment or punishment.”
The sentencing hearing is scheduled for today in Peterborough.
The accused in the case was 70 years old at the time of the offence in the fall of 2016, when he gave alcohol to his 14-year-old foster child. A day later, after initiating a text message conversation to ask whether she had drunk it, the man eventually asked the girl to expose her breasts to him. The girl refused, and he immediately apologized but was later charged with child luring, outlines the factum.
The events that followed, which included an expression of remorse and an early guilty plea from the man, should combine to rule out the possibility of a custodial sentence, Harnett argues to the court.
Describing the six-month sentence as “grossly disproportionate,” Harnett calls instead for a suspended sentence and a period of probation.
“The text which is the subject of this case was a one-time aberration in a life of hard work, dedication to family and community,” Harnett says, noting that the man and his wife had been married 49 years and received a commendation for their work together as foster parents in the decade before the offence.
In addition, one of the man’s three sons died immediately before the launch of criminal proceedings, and the man’s doctor said jail time could worsen his already deteriorating health after he suffered four strokes in the last 12 years, says the court file.
“The facts of his case represent an example of the least serious version of this offence, and [Harnett’s client] is a very sympathetic offender who falls at or near the lowest end of the culpability range,” the factum reads.
Harnett also notes that the Court of Appeal for Ontario (OCA) has already struck down the mandatory minimum 12-month sentence applicable when the charge for child luring is pursued as an indictable offence. The Supreme Court of Canada (SCC) recently heard arguments on that case after agreeing to hear the Crown appeal of the judgment.
He further says that 2017 case involved repeated communication over many months, as well as prolonged sexualized discussion with a police officer posing as a 14-year-old girl, and the accused eventually received a custodial sentence of just four months, two months less than his client faces on much less damning facts.
While acknowledging that the danger of child luring “is a pressing and substantial concern,” Harnett says enforcing the mandatory minimum sentence in this case “would have a particularly harsh impact” on his client.
It may even discourage future offenders from pleading guilty, wasting court time and forcing victims to testify, says the factum.