What might have been a simple joint submission in Chilliwack provincial court Thursday by Crown and defence in sentencing for a child luring case, instead raised a constitutional question about mandatory minimums.
Former Hope resident Jason Graff pleaded guilty to one count of telecommunicating to lure a child under 18, which 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. He had tried to convince her to have sex with him, but settled on the photographs.
The images uploaded to Facebook triggered a response by the Internet Child Exploitation Unit leading to the investigation, warrants, and his eventual arrest.
Part of the evidence included chat logs, naked photos that met the test of child pornography, and e-transfer receipts of $40 and $50.
Graff is well-known in Hope having operated B.C. Protection Services, a now closed security company that also took care of bylaw enforcement for the municipality of Hope.
READ MORE: Man faces child luring, child porn charges linked to Hope, Vancouver Island
READ MORE: Hope man pleads guilty to child luring
While the mandatory minimum sentence for child luring is six months in jail, at the last minute before the sentencing hearing on Thursday (Jan. 28), Crown counsel Aaron Burns and defence counsel Alexis Falk agreed to a joint submission of an 18-month conditional sentence order followed by a three-years of probation.
The order would see Graff, who now lives on Vancouver Island, live under a curfew where he is required to be in his residence from 9 p.m. each night to 5 a.m. The first four months of the order would see him house-bound for 24 hours on weekends. There are also several other conditions, such as no contact orders and no use of social media.
But after fulsome submissions by Burns, Judge Andrea Ormiston pointed to the mandatory minimum in the criminal code for the crime of child luring. That minimum is six months jail.
“Has the minimum six months been deemed unconstitutional?” Ormiston asked the lawyers.
Under section 12 of the Charter of Rights and Freedoms, it states that “everyone has the right not to be subjected to any cruel and unusual treatment or punishment.” This is often used as a legal challenge to mandatory minimum sentences in the criminal code in some cases, in certain circumstances.
Neither Crown nor defence brought this up, however, until Judge Ormiston did. So after a break, Graff’s lawyer Falk put forward the formal application under the charter.
“Parliament has the right to impose mandatory minimums so long as they do not violate section 12,” Crown counsel Burns added.
Falk also said that up until a day before the hearing, Graff had agreed to the mandatory minimum of six months. But Falk is concerned about the pandemic’s impact in jails.
“I am the one who is responsible for talking him out of it,” Falk told the court. “I don’t want him in custody in an institution right now. It’s not just a matter of doing a sentence. It is about COVID. My clients tell me they have COVID, their whole unit has COVID. If that is what I’m hearing from my clients, then most certainly it is worse than that.”
Falk also addressed what she sees as a flaw in the criminal code regarding these sorts of offences with the age of consent being just one year older than the victim in Graff’s case.
“If she was 16, he could 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.”
Because of the constitutional issue at play, the sentencing hearing became more complicated and both Crown and defence will have to present case law to Judge Ormiston to argue that she can ignore the mandatory minimum in this case.
No next date has yet been set for those arguments.
– with files from Emelie Peacock
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