Why an online child sex offender got a longer sentence than some convicted of manslaughter

·4 min read
The Yellowknife courthourse. The seven-year sentence for Marcus Bourke, who was convicted of child luring and child pornography, stands in contrast to manslaughter sentences, which have been shorter in recent N.W.T. cases (Walter Strong/CBC - image credit)
The Yellowknife courthourse. The seven-year sentence for Marcus Bourke, who was convicted of child luring and child pornography, stands in contrast to manslaughter sentences, which have been shorter in recent N.W.T. cases (Walter Strong/CBC - image credit)

An N.W.T. man was sentenced this week to seven years in prison on charges of child luring and child pornography.

In contrast, Selena Lomen, a woman from Fort Liard, N.W.T., stabbed her partner and was sentenced to five and a half years in prison for manslaughter.

Another case in Fort McPherson led to a three year sentence when he beat his cousin to death.

In 2015, a Ndilǫ woman was sentenced to five years in prison for killing her partner with a knife.

The seven year sentence, 25-year-old Marcus Bourke's case, is a result of mandatory minimum sentences on his crimes.

Child luring and child pornography each have a mandatory minimum of a year and Bourke's stack of charges lead to his seven year sentence.

Mandatory minimum sentences refers to the lowest punishment available for certain crimes. In the Canadian justice system, it exists on 29 crimes, including child abuse, impaired driving and firearm related offences.

Manslaughter is a criminal charge that carries no mandatory minimum sentence.

Some legal experts dislike mandatory minimums.

According to Debra Parkes, a professor at the University of British Columbia's Allard School of Law, a mandatory minimum "means that a judge will sometimes not be able to sentence someone proportionately."

She said that each case that comes before the courts is unique and should be sentenced individually.

Parkes compared mandatory minimum sentences to a kind of legal "straitjacket" that restricts judges abilities to balance distinctive factors of each case.

"That's going to mean that there are some people for whom that's going to be a very disproportionate sentence," Parkes said.

Judge cites need to take child abuse crimes increasingly seriously

In 2019, an N.W.T. lawyer argued that the one-year mandatory minimum sentence on child luring charges is contrary to the Canadian Charter of Rights and Freedoms and constitutes cruel and unusual punishment.

Lawyer Stephanie Whitecloud-Brass was representing Ricky Lee Sutherland at the time. Sutherland is a former Yellowknife gymnastics coach who pleaded guilty to luring one of his under aged athletes.

Justice Louise Charbonneau dismissed Whitecloud-Brass's constitutional challenge, citing the need to take child abuse crimes increasingly seriously.

Charbonneau pointed to several incremental increases in the crime's mandatory minimum since child luring was introduced into the Criminal Code in 2002.

In 2002 child luring did not carry a mandatory minimum penalty. Its maximum penalty was six months imprisonment on a summary offence and five years an indictable offence.

In 2007 those maximums were increased to 18 months and 10 years respectively.

The mandatory minimum was added in 2012 with a 90 day minimum on summary elections and one year on indictable.

In 2015 that rose to six months on summary elections and stayed the same for indictable.

The maximum sentence also rose from two years less a day to 14 years imprisonment,

In her decision on dismissing the Whitecloud-Brass's challenge, Charbonneau said the changes reflect Parliament's decision "that this crime should be treated more and more seriously."

7 year sentence proportionate with harm

In the case of Marcus Bourke, the seven-year sentence was the result of a joint submission by the defence and Crown lawyers, and was agreed to by a judge.

Monique St. Germain is the lead lawyer with the Canadian Centre for Child Protection.

She said she couldn't speak to the specifics of manslaughter cases in the territory but "would never say that the sentences that are imposed for child victimization are on the high side."

St. Germain said that children are the most vulnerable members of our society and the ease of online access is making it easier for predators.

The internet, she said, allows children to interact with adults who are strangers without the intervention of their parents or guardians and making the problem exponentially worse.

"These images and videos that are created of children being sexually assaulted have the capacity to harm that child for the rest of their life," she said.

St. Germain described the fear victims face of being recognized in public from their online materials and the re-victimization that causes.

"You have somebody who was victimized as a child and abuse, and then that recording of the abuse lives on beyond the abuse to continue to harm that individual."

She agreed with Parkes that each sentence must be treated individually, but said that a seven year sentence is proportionate with crimes of child sex abuse.

St. Germain said that manslaughter and child abuse sentences couldn't be compared.

"What are we going to do, say, 'well, because a really, really sympathetic offender got three years on a manslaughter charge, that means that all child sex offences have to be less than three years'? No, that's ridiculous."

Disclosure: Lawyer Stephanie Whitecloud-Brass is married to CBC North's senior managing director, Mervin Brass. 

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