A former Yellowknife gymnastics instructor who sent a sexually explicit image to an underage girl he once coached should not receive the mandatory minimum sentence for child luring, the man’s lawyer argued Monday.
Ricky Lee Sutherland, 50, pleaded guilty in May to a single count of luring a child under the age of 18 for the purpose of facilitating a child pornography offence. A conviction carries a mandatory minimum sentence of one year in jail, but Sutherland’s lawyer, Stephanie Whitecloud-Brass, is challenging the mandatory sentence, arguing it violates the Canadian Charter of Rights and Freedoms’ protection against cruel and unusual treatment or punishment.
Sutherland began coaching gymnastics at a city club in July 2016 after working as a Municipal Enforcement Division (MED) constable.
Sutherland, along with all other staff at the club, were directed by higher ups not to befriend gymnasts on social media.
However, between Feb. 11 and Feb. 12, 2017 – while in Toronto – Sutherland sent the female victim several messages via Snapchat.
Snapchat is a smartphone app used for sending photos and videos that can be directed privately to contacts. Images expire after a certain period of time.
In May, the court heard Sutherland’s penis was visible in at least one of the messages sent via Snapchat to the underage girl, who, in a victim impact statement, said she felt “betrayed” and “haunted,” by her former coach and friend who turned out not to be the person she thought he was.
Sutherland admitted to sending the explicit image when confronted by the gymnastics club’s board of directors once back in Yellowknife. He was fired as a result.
Whitecloud-Brass argued the one-year mandatory minimum sentence, which came into effect in 2015, is too severe for Sutherland. She said a sentence of three to nine months would be more appropriate.
For a judge to determine whether or not a mandatory minimum sentence is appropriate, several factors, including the offender’s personal characteristics, the circumstances of the offence and the impact of the sentence on the offender, must be weighed.
Whitecloud-Brass said the underage victim went through an “unquestionable traumatic experience.”
However, Sutherland never threatened her with violence or physically assaulted her and does not pose a threat to the public, she said.
“He’s simply a man who made a mistake,” said Whitecloud-Brass.
She told the court her client’s family, of whom he is the sole provider, would be negatively affected by the mandatory one-year sentence.
Ultimately, she argued the mandatory sentence “casts a broad net on a wide range of offences,” lumping her client into the same category as predators – something she said Sutherland is not.
Whitecloud-Brass said sentencing her client to the mandatory minimum would go against what sentencing should be – a highly individualized process led by the sentencing principle of proportionality.
On the other hand, prosecutor Morgan Fane, who said 18 months would be an appropriate sentence for Sutherland’s crime, said the mandatory minimum is in place for a reason: To protect children from online luring in an ever-evolving technological landscape that makes it increasingly easy for the offences to be perpetrated.
Fane said the federal government has been increasing the minimum penalty for child luring over the years as lawmakers have been trying to keep pace with shifting technological realities. Because these changing realities are making the offence easier to be committed, the one-year mandatory sentence is important.
He noted the significant age gap between Sutherland and his victim, reminding the court there was an inherent power dynamic between the two that was exploited.
Fane added Sutherland didn’t just send the victim one message, he was “persistent,” as he sent many of them.
Fane said the answer to online child luring is not to tell young people to “turn off their phones,” just as the answer to sexual assault should not involve urging women and girls to avoid dressing a certain way.
“That is asking someone not to engage in the world,” he said in defence of the mandatory minimum sentence.
Justice Louise Charbonneau is expected to hand down a decision on the Charter challenge Friday. A sentencing hearing has been set for Aug. 18.
At the end of the Monday’s proceedings, Sutherland, who resided in Ontario while out on bail, consented to be detained, meaning he’ll remain in custody in Yellowknife.