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Mandatory minimum sentence avoided after police violate Charter rights

Some criminal charges result in mandatory minimum sentences upon conviction. For example, a person accused of Internet luring, which usually involves use of the Internet to solicit sexual acts or favors from a minor, can face a mandatory minimum jail sentence of one year.

However, every case is different and must be scrutinized for mistakes on the part of police and prosecutors. Sometimes police violate the Charter rights of the accused, and sometimes prosecutors leave out additional evidence that might help the defendant's case. With these issues in mind, consider an Oshawa judge's recent sentencing of a man who was charged with Internet luring.

The defendant was arrested in 2012 after posting an ad on Craigslist. According to police, the purpose of the ad was to solicit sexual encounters with other young men.

A police detective responded to the ad and posed as a 15-year-old boy, and the defendant was arrested after saying that he would meet with the supposed "boy" for a sexual encounter. Later, in court, the man said that he did not really believe that the person he planned to meet was 15 years old, though this kind of statement of belief is generally not a defence if a minor's age was stated to the accused.

The man was convicted of Internet luring of a minor, but a mistake on the part of police resulted in a sentence of house arrest and probation, rather than the mandatory minimum sentence of one year. Specifically, a police search of the man's vehicle turned up medical documentation showing that he is HIV-positive, and a detective decided to include that information in a news release.

An Oshawa judge found the disclosure of the defendant's HIV status -- his private medical records -- to be in violation of his Charter rights, and the judge decided not to impose the mandatory minimum sentence. The defendant, who reportedly has no other prior convictions, will still have to register as a sex offender, but he expressed relief that he would not have to spend a year in jail.

The case is a reminder of the importance of conducting a full defence investigation. Police and prosecutors must follow protocol and avoid violating the Charter rights of the accused, and an experienced criminal defence lawyer can investigate to see if any such violations have occurred.

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