Mr. O came to Aitken Robertson after being charged with Obtaining Sexual Services for Consideration from a Person Under the Age of Eighteen contrary to s. 286.1(2) of the Criminal Code of Canada. Mr. O was a new immigrant to Canada, having spent only a few years in the country as a permanent resident prior to being charged. A conviction in this case would result in his automatic expulsion from Canada under the Immigration Refugee Protection Act (IRPA) as the offence carried a maximum penalty of 10 years or more. With a wife in the country, a good job and a baby on the way, Mr. O wanted us to do everything we could to keep him in Canada.
Thankfully, Mr. O had a compelling defence. While Mr. O had done very well to become proficient in English in a short period of time, comprehension of written English text remained a challenge for him. Little did he know it, his struggles with written English would later become the lynchpin of his defence.
It was alleged that he had responded to an online classified ad for escort services. The ad featured escorts that were said to be “over the age of 18”. When Mr. O responded, he began communicating via text message with a police officer posing as escort. At one point in the conversation Mr. O explicitly asked whether the fictional escort was “over 18”. The reply was ‘almst babe’. Mr. O understood this to mean “just” or “barely”. The undercover officer then directed Mr. O to a local hotel where he was met by the undercover officer and arrested after confirming the purpose for which he was there.
Mr. O was charged with one count of Obtaining Sexual Services for Consideration from a person under the age of 18.
Crown Position: The Crown was seeking the mandatory minimum penalty of six months custody followed by two years of probation. The offence was also accompanied by a mandatory SOIRA order, meaning that Mr. O would have to comply with the Sex Offender Registry Act.
As per Mr. O’s instructions, our goal was to everything we could to keep him in Canada. Mr. O wanted us to take the safest route to this outcome as possible.
The first step was to canvass possible resolution with the Crown. We obtained a detailed bio for Mr. O and compiled reference letters from friends, colleagues and family. We reviewed his version of events and determined how much information we were prepared to share with the Crown. We also reviewed potential offers that we were prepared to make in an effort to resolve the file. We then scheduled a Crown Pretrial Meeting. When meeting with the Crown we highlighted the facts in the police disclosure that supported Mr. O’s version of events. Of particular interest to the Crown was his text message to the undercover officer specifically asking whether she was over the age of eighteen. In order to prove the offence beyond a reasonable doubt, the Crown had to show the court that Mr. O was of the belief he was meeting with someone under the age of eighteen for the purpose of obtaining sexual services. Given that the Crown’s case contained evidence to the contrary, it was suggested that the matter could resolve on a plea to a different charge. Our research confirmed that the maximum sentence for the lesser offence of Obtaining Sexual Services for Consideration (i.e. not of someone under 18) carried a maximum penalty of five years in jail. This meant that it did not constitute “serious criminality” under IRPA. A plea to this offence would allow Mr. O to stay in Canada. So we made the pitch. Mr. O could accept that he attended the hotel for sex but had a compelling defence that he did not know he would be meeting someone under the age of eighteen-years-old. Given the seriousness of the original allegation, the Crown required some time to consider the offer. After a few weeks of deliberation, the Crown agreed that the matter could resolve on a plea to Obtaining Sexual Services for Consideration contrary to s. 286.1(1) of the Criminal Code. Mr. O was, of course, elated. He could remain in Canada and would not have to be separated from his wife and child.
Mr. O entered a plea to Obtaining Sexual Services for Consideration (not under 18). After submitting our agreed statement of facts to the Court, Mr. O received an intermittent sentence (meaning jail on weekends) of 60 days and one year of probation. He did not have to join the sex offender registry. He was able to avoid a lengthy jail sentence and certain expulsion from Canada.