An Oshawa judge’s decision to sentence a man to house arrest for Internet child luring rather than jail because police publicly revealed his HIV status is the latest example of judges finding creative ways to manoeuvre around mandatory minimum sentences.

Former youth pastor Kris Gowdy was given two years less one day house arrest and three years probation last week by Ontario Court Justice Michael Block rather than the mandatory minimum sentence of one year in jail. Block found Durham Regional Police violated Gowdy’s constitutional rights when they indicated in a news release shortly after his arrest in August 2012 that he was HIV-positive.

The story of the “HIV-positive ex-youth pastor” made headlines around the world, causing significant emotional trauma to Gowdy, Block wrote in his decision.

“Mr. Gowdy had a right to make his own choices concerning the disclosure of his HIV status,” he wrote. “No doubt he would have chosen his own method and different timing if he ever determined to inform those near to him. Absent evidence of serious risk of transmission and rigorous compliance with statute, no one had the authority to make that decision for him.”

Avoiding mandatory jail time due to Charter of Rights and Freedoms violations first received widespread attention last month, when the approach was used by Toronto Superior Court Justice Ian Nordheimer.

In that ruling, which Block references in his own decision, Nordheimer sentenced 30-year-old Brandon Donnelly to house arrest for making child pornography rather than to jail because he found Donnelly had been in custody too long following his arrest and had been denied his anxiety medication.

The Crown is appealing Nordheimer’s decision.

Lawyers say these two cases represent the growing unease amongst judges with regards to the “one-size-fits-all” approach of mandatory minimum sentences, and say the rulings by Nordheimer and Block present one avenue to get around mandatory jail time in certain cases without striking mandatory minimum laws down as unconstitutional.

“Here we are only a few months later (after the Donnelly case) and the door is opened yet again,” said lawyer Edward Prutschi, who was not involved with either case. “It’s clear to me that judges are hungry for alternatives to mandatory minimum sentences in some cases. If police open the door by their own egregious conduct, you can expect judges to use these violations as constitutional justifications to depart from the sentencing norms.”

Gowdy, who is now unemployed and whose name will be on the sex offender registry for the next 20 years, told the Star he was “relieved” not to be in jail, but said he felt the police officers involved in his case should also face justice.

“I regret incredibly my actions, they were foolish and inappropriate,” he said. “It feels to me like there should be some kind of reprimand to these officers at the minimum. I thought the police were supposed to uphold charter rights. It’s pretty disconcerting.”

Durham police did not return a request for comment.

A former pastor with the Free Methodist Church of Canada, Gowdy posted an ad on Craigslist in 2012 looking for men interested in receiving oral sex, specifying he was looking for “under 35, jocks, college guys, skaters, young married guy.”

The court heard that Gowdy mostly engaged in random sexual encounters with men, having kept his sexual orientation secret from his family and church. Evidence showed that Gowdy had no prior criminal record and that no complaints about inappropriate behaviour were received at the ministries where he has worked as a pastor.

A detective with the OPP’s Child Sexual Exploitation Section honed in on the use of the words “young,” “skater,” and “under 35” in Gowdy’s ad, and began an online conversation with him, posing as a 15-year-old boy. Shortly after agreeing to meet the “boy” for oral sex, Gowdy was arrested. He maintained in court that he never actually believed the person he was conversing with was 15 years old.

Gowdy’s car was searched upon his arrest, and police found medication and documentation proving he was HIV-positive. Detective Randy Norton of Durham Regional Police made the decision to include that fact in a news release announcing Gowdy’s arrest.

“I made a decision to put out a press release to advance the investigation. That was all it was,” Norton testified, according to a July ruling from Block when he convicted Gowdy. “And to make — ensure the community was safe and if there was people that had been — had contact with Mr. Gowdy that they could at least go seek treatment or go seek testing, and that was all that was on my mind.”

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In the sentencing decision last week, Block highlighted that legislation puts strict limitations on the release of health information and wrote that there was no evidence to suggest Norton considered speaking to a Crown attorney or public health official before requesting that the HIV detail be included in the release.

“In his testimony, Detective Norton explicitly stated his indifference to any constitutional rights that Mr. Gowdy might have had in the matter,” Block wrote.

He also wrote that there is no evidence to suggest that Durham police have made any effort since Gowdy’s conviction to review protocols on the release of personal health information and to educate members regarding the charter implications for the accused.

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