A former Hope resident convicted of child luring and possession of child pornography may not be going to jail despite there being a mandatory minimum of six months behind bars for the offences in question.
In January, Judge Andrea Ormiston sent Crown and defence for Jason Graff back to the drawing board after the lawyers tried to enter a joint submission for a conditional sentence order (CSO) of 18 months, which means no jail time but court-ordered conditions.
“Has the minimum six months been deemed unconstitutional?” Ormiston asked the lawyers in January.
It had not, so the judge adjourned the case so the lawyers could come up with a joint submission that followed current law or prepare a constitutional challenge.
Graff pleaded guilty to one count of telecommunicating to lure a child under 18, a crime that happened in Hope in August 2018. He had also been charged with two counts of possession of child pornography from dates four months later when he was on Vancouver Island.
The 34-year-old Graff connected with a 15-year-old girl on Facebook, engaging in sexualized chats that led to him paying for nude photographs of the girl.
Back in front of Judge Ormiston on May 20, Crown counsel Aaron Burns and Graff’s lawyer Alexis Falk found a way, they argued, to legally get around the mandatory minimum. In a BC Supreme Court decision from just a few weeks ago, R. v Chen from April 2021, the judge ruled that when Parliament created mandatory minimum sentences for indictable offences with high maximum sentences, it was a breached section 7 of the Charter of Rights.
Provincial court judges have to follow case law decisions from higher courts.
But since that only applied to indictable offences, and Graff was convicted summarily, Burns and Falk agreed to withdraw his plea to the initial charges, and Graff then entered guilty pleas to the more serious indictable version of the charges.
“The Chen decision finds a way to be able to provide for a conditional sentence order in many of these mandatory minimum cases,” Falk said.
Judge Ormiston had several questions for the two lawyers, including asking if Graff understood the increase in jeopardy in pleading to an offence with a higher maximum sentence. Falk said he did.
Ormiston also reminded the lawyers that a judge has no obligation to follow a joint submission.
Falk said her client understood, and she argued that the offence in question was at the low end of seriousness, which is why both her and Crown feel a conditional sentence order is appropriate.
“This is not as significant offence as say, a prolific offender or someone in a position of authority, for example,” Falk said. “There are a lot of aggravating features of luring that are not present here. Mr. Graff has been found to be of an extremely low risk to reoffend.”
As she argued in January, Graff faces a mandatory minimum jail sentence for having been sent an image of a 15-year-old girl, yet if she was 16, he could legally have had a sexual relationship with her.
“That doesn’t make sense to me. You can have a mandatory minimum for sending an image at 15, but you can engage in sexual activity at 16.”
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