In R. v. Alcorn, 2021 MBCA 101, December 9, 2021, the accused was convicted of the offence of purchasing the sexual services of a child (child prostitution). The accused had sexual intercourse with a sixteen-year-old Indigenous child in exchange for a bottle of rum. The accused had no prior convictions. He was sentenced to a period of fifteen months of imprisonment. The Crown appealed from sentence.
The Manitoba Court of Appeal increased the sentence imposed to one of five years of imprisonment. In doing so, the Court indicated that “[i]n order to better legally protect children, it is necessary to turn a new page from the past and embark on a fresh sentencing approach which focusses on greater offender accountability through increased sentences” (at paragraph 1).
The Court of Appeal suggested that the Supreme Court’s comments in R. v. Friesen “about equality are of particular importance to section 286.1(2) given, as mentioned previously, that the offence is typically both a ‘racialized’ crime (at para 70) and a crime that ‘undermines gender equality’ (at para 68) because such behaviour disproportionally sexually victimizes vulnerable Indigenous girls and the offenders are typically non-Indigenous adult men like the accused. Accordingly, sentencing judges should be mindful of their obligations under sections 718.01 and 718.04 of the Code” (at paragraph 37).
The Court of Appeal held that “[c]hild prostitution is a paradigm of serious wrongdoing. Like other sexual offences, child prostitution is a universally accepted wrong. There is no reasonable debate against the law taking a hard paternalistic approach to prohibit child prostitution. Such behaviour offends core societal values as to harm, autonomy, culpability and, because the victims are primarily of one race and one gender, equality. The harmful consequences—physical, psychological and societal—that flow from child prostitution are justification to treat it as severely as other sexual offences of violence or exploitation” (at paragraph 42).
In concluding that a period of five years of imprisonment was appropriate, the Manitoba Court of Appeal described the accused’s moral blameworthiness as being “significant” (at paragraphs 72 to 75):
I am also satisfied that the accused’s moral blameworthiness for the offence is significant (see M (CA) at para 80). His risk-taking was intentional (ibid). His actions were not impulsive and he had time to change his mind, particularly given that it was manifestly obvious that D.R. was in distress before sexual relations commenced. As was said in Friesen, “the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable” (at para 90).
The consequential harm caused by the accused is disturbing. Any reasonable adult would know that perpetuating D.R.’s cycle of destruction was harmful to her best interests. It is trite, but “a wrongdoer must take his victim as he finds him” (R v Nette, 2001 SCC 78 at para 79). While the accused played no role in bringing D.R. into the child sex industry, his deliberate, selfish actions helped keep her there.
Finally, the normative conduct of the accused is serious. Making the reasoned choice to take advantage of a vulnerable child in obvious distress, for personal sexual gratification, constitutes egregious sexual exploitation (see Parranto at para 70).
A sentence must speak out against the offence, but punish no more than is necessary (see R v Nasogaluak, 2010 SCC 6 at para 42). Here, the accused’s high moral culpability provides little reason to temper punishment, given the gravity of the offence and the circumstances of its commission.