Jamie Sarkonak: Non-citizen johns shouldn't get sentence discounts for their crimes
Logically, Khant would be getting a higher sentence if he were Canadian — which is why this sentencing practice is so deeply unfair.
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O'Marra also found a lot of good in the accused, noting his above-average IQ, his first-time offender status, his lack of mental illness or criminal record, his 'modest and reserved' nature, and his low likelihood of reoffending (he did show 'some response to younger females' in phallometric testing, but he agreed to take therapy in light of the finding).
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In the judge's eyes, these overcame Khant's flaws, such as his apparent intention to see the fictitious 15-year-old on a regular basis: 'we could do this a lot depending on how this goes,' he told the officer-in-disguise. After he was caught, he told the risk-assessment psychologist that he never intended to go for underage girls.
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The judge was troubled, on the other hand, by what he characterized as 'evidentiary weaknesses' in the Crown's case: namely, 'a partial phone download, no direct link between the phone and Mr. Khant, and surveillance footage that failed to show him at the hotel room door.' Though, these concerns are questionable, as police should be able to testify to Khant's presence at the door, and because his phone was seized upon arrest (and was thus in his possession).
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Taking all into account, O'Marra concluded, 'A conviction would lead to severe collateral consequences, such as jeopardizing his immigration status, delaying his citizenship, and preventing him from sponsoring his wife, which would likely result in their separation. These consequences would be disproportionate to the offence and would undermine his rehabilitative progress.'
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This is an uphill battle. At the top end, Canadian law requires that judges take immigration consequences into account in sentencing 'provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.' At no point did we explicitly legislate this: rather, in 2013, it was decided by the Supreme Court, in a judgment authored by now-Chief Justice Richard Wagner.
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Lower down, we have to contend with courts that set soft precedents that later justify even softer decisions. Aside from Ontario's mandatory minimum strikedown for underage solicitation, Khant was assisted by a 2018 case in which a man was conditionally discharged for breaking his wife's arm on one occasion and, years later, threatening to kill her while pushing her head into a pillow.
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This is happening all around Canada. In Calgary last year, a man on a study visa was found guilty of groping a woman's genitals at a club; he was given a conditional discharge to lessen his chances of deportation.
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