A Strict Approach to the Procurement of Child Sexual Exploitation in Manitoba - Noah Lesiuk

Slamming the Gavel on Child Sexual Exploitation

In a recent Manitoba Court of Appeal (MBCA) case, R v Alcorn, the MBCA set out a fresh approach to sentencing in cases involving the purchase of sexual services from a child (hereinafter referred to as child sexual exploitation) under s. 286.1(2) of the Criminal Code (Code).[1] The MBCA crafted a stricter method of sentencing in child sexual exploitation cases that is meant to yield harsher sentences that reflect the principle of proportional sentencing. This blog seeks to conduct an analysis of this new sentencing framework and its implications in Manitoba. To begin, the facts of the case and the sentencing guidelines advanced by the MBCA will be outlined. Next, it will be contended that this sentencing methodology provides much needed clarity and that its strict approach is cogent and respectable. Lastly, a brief conclusion concerning the future of sentencing in Manitoba for those convicted under s. 286.1(2) of the Code will be provided.

Facts

In the case at hand, the accused met D.R., the victim, through social media.[2] D.R. was a 16-year-old Indigenous girl who agreed to engage in sexual intercourse with the accused in exchange for a bottle of alcohol.[3] Sadly, D.R. was engaging in survival sex and sold her body for either alcohol or money. The accused, fully aware that D.R. was under the age of 18, met her at the residence of a known pimp and child pornographer, Kevin Rose.[4] The accused gave D.R. a 60-ounce bottle of rum, and then the two engaged in intercourse. Rose would pay D.R. to have sex with men and Rose would secretly record it.[5] Eventually, the police found a recording of the accused and D.R. engaged in sexual intercourse.

Sentencing Framework Advanced

At trial, the judge sentenced the accused to 15 months imprisonment. The Crown appealed the sentence on the grounds that the judge made two material errors, only one of which remains important for the case; this being that the trial judge erred in the assessment of proportionality in the sentencing.[6] The MBCA began an analysis of the jurisprudence pertaining to proportionality assessments within the context of sexual offences committed against children. Looking at the case of R v Friesen, which the MBCA called a “watershed decision,” the MBCA outlined the necessity of sending a stern and strong message through stringent sentencing in cases involving sexual offences against children. [7] In assessing the trial judge’s sentencing, the MBCA found that the trial judge was faced with determining the correct legal framework in considering whether the gravity of the offence of purchasing child sexual exploitation held the same level of seriousness as the child-related offences of sexual assault, sexual interference, and sexual exploitation.[8] While the trial judge did not adopt the stance that the gravity of the offence of child sexual exploitation was as serious as the offences outlined above, the MBCA steered on a different trajectory and cleared up any notion of confusion. The MBCA sternly expressed its intention to adopt a harsher approach to child sexual exploitation as clearly evidenced by the remark that “there is no reasonable debate against the law taking a hard paternalistic approach to prohibit" child sexual exploitation.[9] Following this rationale, the MBCA stated that it is apt to treat “section 286.1(2) of the Code in the same manner as other sexual offences against children, such as sexual assault, sexual interference and sexual exploitation.”[10] In effect, this is meant to ensure that the gravity of the offence of child sexual exploitation is equivalent to the gravity of the offence arising from sexual offences committed against children.[11]

This development provides a definitive guideline for the Manitoba courts in employing a proportionality analysis so that no judge applies a lower gravity of offence standard to child sexual exploitation cases in comparison to those involving sexual assault, interference, or exploitation of a child. The court emphasizes that this change “will be to meaningfully increase sentences.”[12] This strongly suggests that the MBCA fundamentally disagrees with the 15-month sentence imposed by the trial judge and instead provided a precedential guideline where sentences for child sexual exploitation in Manitoba should be longer than 15 months. Turning to moral culpability, which is another factor involved in the sentencing process, the MBCA found that the trial judge erred in finding that the accused, by acting opportunistically rather than predatorily, had a lesser degree of moral culpability.[13] The MBCA took a strong stance, explaining that this did not matter, as the absence of an aggravating factor does not make the exploitation less serious.[14] By applying the stricter gravity of harm framework and re-assessing moral culpability, the MBCA imposed a 5-year sentence on the accused.

Clarity in the Law

With the background information concerning the case set, it is now apt to analyze this new sentencing framework and to comment on its dimensions. To begin, I strongly believe that the MBCA aimed to diffuse ambiguity surrounding sentencing pursuant to s. 286.1(2) of the Code. In my opinion, this was a pragmatic move premised on the element of clarity, and the rhetoric espoused by the MBCA strongly supports this point. Following up on their decision to treat the gravity of the offence for child sexual exploitation as identical to sexual assault, sexual interference, and sexual exploitation, the court states that this was “to provide guidance for sentencing courts in their assessment of proportionality for offenders.”[15] Evidently, this was meant to ensure that errors concerning the gravity of the offence for cases involving child sexual exploitation would not occur as they did by the trial judge in this case. Considering the language advanced by the MBCA, my contention that the MBCA wished to dispel ambiguity and establish clarity concerning sentencing pursuant to s. 286.1(2) can be deemed as well-founded.

Abhorrent Conduct: Denouncing Child Sexual Exploitation Through Stricter Sentencing

While clarity is generally less of a contentious topic when it comes to positive aspects of judicial decisions, taking a harsher approach to sentencing certain offences is certainly more of a controversial topic. In terms of the case at hand, the MBCA is stern in their desire to condemn child sexual exploitation and to ensure that those who commit the offence will face harsher sentencing. This is explicit in the court's rhetoric that its new sentencing guidelines are meant to “increase sentences” for those who purchase the sexual services of children.[16] While some criminal justice academics often oppose the paradigm of increased punishment and prefer rehabilitation, I strongly believe the MBCA’s decision to pursue the former in the context of child sexual exploitation is appropriate. As proponents of the rehabilitative school of justice would suggest, pursuing increased punishment in lieu of rehabilitative programming is less effective in ascertaining long-term offender re-integration and reducing re-offending.[17] Although I concede this point and support rehabilitative notions of justice, one must not forget that the courts have an obligation to act in a matter consistent with public interest and societal perceptions of justice. While I cannot claim that my subjective perception represents a “meta-view” of society, it is reasonable to say that society would view sexual offences committed against children as abhorrent, disgusting, and a perversion of the innocence that children possess. Children are the building blocks of our society, meant to forge and improve humanity by chasing their dreams and improving upon the prior generation's faults. Exploiting children for sexual services deprives them of this opportunity, creating layers of perpetual trauma that will haunt child victims for life and push them further into a cycle of marginalization and violence. Sadly, this is exemplified in the fate of D.R., the victim in this case, who later took her own life.[18] It is fair to assert that the MBCA’s choice to adopt a more stringent approach to sentencing in child sexual exploitation cases is in accordance with public interest. Indeed, as the court suggests, child sexual exploitation offends the core of society and the imperative concept of protecting our innocent youth.[19] In light of all these considerations advanced, I tend to agree with the MBCA’s hardline approach to child sexual exploitation; do you?

Moving Forward: The Future of s. 286.1(2) in Manitoba

So, what does the future of punishment look like for those that purchase the sexual services of a child in Manitoba and are convicted pursuant to s. 286.1(2) of the Code? Although the court emphasized that sentencing is a contextually sensitive matter, this case will likely stand as precedent for future cases concerned with child sexual exploitation; specifically, that a sentence of around five years seems to be an appropriate starting point for cases involving a single sexual interaction with a single victim.[20] This assertion is directly evidenced by the MBCA stating that they “see no reason why a ‘mid-single digit penitentiary [term]’ should not be imposed despite this being one incident with one victim.”[21] Considering the binding nature of the MBCA on lower courts in Manitoba, I believe that, going forward, these courts will adopt five years as a reference point for sentencing in child sexual exploitation cases. Ultimately, the decision in Alcorn provides clarity in the law, a stricter approach to child sexual exploitation, and an effective precedent for lower Manitoba courts to follow. Upon this premise, R v Alcorn can be deemed an impactful decision in the annals of Manitoba jurisprudence. Do you agree? Let me know below.

[1] R v Alcorn, 2021 MBCA 101 at para 1 [Alcorn]; Criminal Code, RSC 1985, c C-46, s 286.1(2). [2] Ibid at para 3. [3] Ibid. [4] Ibid at para 4. [5] R v Rose, 2019 MBCA 40 at para 9. [6] Alcorn, supra note 1 at para 23. [7] Alcorn, supra note 1 at para 32; see R v Friesen, 2020 SCC 9. [8] Alcorn, supra note 1 at para 35. [9] Ibid at para 42. [10] Ibid at para 45. [11] Ibid. [12] Ibid at para 49. [13] Ibid at para 57. [14] Ibid at para 58. [15] Ibid at para 48. [16] Ibid at para 49. [17] See Elizabeth M Elliott, Security with Care: Restorative Justice and Healthy Societies (Winnipeg, MB: Fernwood Publishing, 2011). [18] Alcorn, supra note 1 at para 6. [19] Ibid at para 42. [20] Ibid at para 77. [21] Ibid at para 71.