COURT OF APPEAL FOR ONTARIO

DATE: 20060811

DOCKET: C43856 and C44008

ROSENBERG, ARMSTRONG and ROULEAU JJ.A.

B E T W E E N :

HER MAJESTY THE QUEEN

Respondent (C43856) / appellant Crown Applicant/Appellant (C44008)

• and -

KEVIN JARVIS

Appellant (C43856) / Respondent (C44008)

Counsel: Shelley Hallett for the respondent/appellant Crown Lorne M. Honickman for the appellant/respondent Kevin Jarvis

Heard: April 21, 2006

On appeal from sentence imposed by Justice Robert G. Bigelow of the Ontario Court of Justice dated July 18, 2005.

ROSENBERG J.A.:

[1] Kevin Jarvis and the Crown appeal the sentence imposed by Bigelow J. on July 18, 2005 for the offence contrary to s. 172.1(1)(c) of the Criminal Code of communicating with a person believed to be under the age of fourteen years for the purpose of facilitating the offence of invitation to sexual touching. The Crown also seeks to adduce as fresh evidence various statistical studies and other information concerning the use of the Internet by young people. In these reasons, I will refer to Mr. Jarvis as the appellant and to the s. 172.1 offence as Internet luring.

[2] At the conclusion of oral argument, the court announced that the application to adduce fresh evidence was dismissed as were both appeals with reasons to follow. These are those reasons.

THE FACTS

The offence

[3] The offence in this case took place over 14 days in July 2003. At the time, the appellant was 22 years of age. He had just moved out of his parents’ home and was living with his then girlfriend in her apartment. He had no prior criminal record and was of previous good character. He was under some stress due, among other things, to his mother’s serious illness, an illness that unfortunately recurred at the time of sentencing.

[4] Just after noon on July 3, 2003, the appellant began the first of seven communications with an undercover police officer by entering an Internet chat room. The appellant believed he was chatting with a thirteen-year old girl who identified herself initially as “funangel”. Within minutes of the communication having begun, the appellant had sent digital photographs of his head and penis. During this communication the appellant engaged in sexually suggestive talk, asked where the child lived and asked whether he could meet her so she could see his penis “for real”. He told her that if they met, she could hold his penis and masturbate him and he could touch and rub her genital area. About two hours into this chat, the appellant sent a photograph that shows him rubbing his penis. By this time, he had learned that funangel’s “real” name was Jessie and he had given her his first name.

[5] In the ensuing six communications the appellant’s talk became more explicit. For example, he offered to teach Jessie how to masturbate him and perform fellatio and he explained how he would perform cunnilingus on her. There was also discussion about the wearing of a condom. The appellant continually pressed to meet Jessie in person. He also sent Jessie photographs of adult women performing fellatio on adult men.

[6] The final communication took place on July 16 when Jessie agreed to meet the appellant at a park in downtown Toronto. There was explicit conversation during this chat with the appellant indicating that he wanted to rub Jessie’s genital area. The appellant provided his telephone number to Jessie and a female undercover officer called him.

[7] At noon on July 16, the appellant walked into the park after travelling almost 20 kilometres from his girlfriend’s residence. He was arrested as he approached an undercover female officer. The appellant had a condom in his pocket and was not wearing underwear. The computer and the digital camera used to take the photographs were found when the police searched the appellant’s girlfriend’s apartment. The police did not find any child pornography on the computer nor any indication that the appellant had engaged in similar communications with other children.

The appellant’s background

[8] As I have said, at the time of the offence, the appellant was 22 years of age and of previous good character. He had abided by all his bail conditions for the two years he was on bail pending trial. Those conditions included that the appellant only use a computer and the Internet for work purposes and not be around any children under the age of sixteen years. The appellant’s mother testified at the sentence hearing that the appellant had matured in the two years since his arrest and was now more engaged with others and not so isolated.

[9] The year following his arrest, the appellant saw Dr. Wright, a highly qualified psychologist who is an expert in assessment and treatment of sex offenders. His report was filed at the sentence hearing and he testified at the sentence hearing. Dr. Wright described the appellant as intelligent. He had a relatively stable and prosocial lifestyle but was then overly reliant on the Internet to meet his social and sexual needs. Testing with actuarial psychological instruments showed the appellant as being at low risk to re-offend and an excellent candidate for supervision within the community. However, Dr. Wright was also of the view that the appellant is a hebephile, in that he is attracted to female adolescents. Although the appellant was unlikely to re-offend, he would benefit from counselling to “increase his quality of life and adjustment”. Dr. Wright expressed some concern about how the appellant would react if again put under stress and so he thought it prudent that the appellant take relapse prevention therapy to deal with his apparent attraction to older children. He also thought it prudent to monitor the appellant when he was around children. Dr. Wright testified that the treatment the appellant could obtain out of custody while on a conditional sentence would be superior to the treatment in a provincial institution.

The intention issue

[10] Dr. Wright testified that the appellant told him he did not intend to have any sexual contact with “Jessie” when he went to the park. Dr. Wright felt that the appellant had been remarkably candid with him and for that and other reasons he accepted the appellant’s statement. The trial judge rejected this evidence and drew the inference that the appellant did intend to have sexual contact with the child. The trial judge relied upon the facts that the appellant had a condom with him and was not wearing any underwear. He considered alternative explanations for this behaviour as “pure speculation”.

The fresh evidence issue

[11] At trial, Crown counsel sought to file an excerpt from Hansard that included the Minister’s statement at second reading of Bill C-15 that enacted the Internet-luring offence. Crown counsel also sought to file excerpts from the executive summary of Young Canadians in a Wired World: The Students’ View, October 2001. The survey was prepared by Environics Research Group for the Media Awareness Network and Government of Canada. Crown counsel stated that she relied upon the Wired World excerpt for two purposes. First, to show the material that was before the court in R. v. Carratt, [2005] A.J. No. 743 (Prov. Ct.), a case relied upon by Crown counsel. Second, Crown counsel stated that she relied upon the report “to put some numbers to this common sense proposition that our children are using the Internet frequently, and, so … what this survey does is just give some numbers to what I would refer to are common sense propositions”. Crown counsel specifically wanted to refer to statistics showing that:

• 99% of children surveyed reported using the Internet to some extent;

• 79% had access to the Internet at home;

• almost 6 in 10 had used chat rooms;

• more than 3 in 10 said they go to adult chat rooms;

• 25% of youth said they had been sent pornography by someone they met on the Internet;

• almost one half of youth in secondary school reported that someone had made unwanted sexual comments to them on the Internet; and

• one-quarter of youth surveyed said that someone they met only on the Internet had asked to meet them in person.

[12] Crown counsel indicated that “those are, really, only the figures that I would like to refer to and, again, … my argument will be, really, that we’re just quantifying what our common sense would tell us”. Defence counsel objected to admissibility of the survey because he would not be able to cross-examine the author. In addition to the statistics referred to by Crown counsel in her submissions at trial, the executive summary also includes other information such as information about monitoring by parents of Internet usage.

[13] The trial judge refused to admit the Wired World survey. He stated that he would find it difficult to draw meaningful conclusions from the statistics without a witness to explain their import. While he was prepared to take judicial notice “that children use things like chat rooms”, he was not willing, without more evidence, “to get into the issues of what those may be, whether or not they are controlled by individual children, whether they are open to the public, all of that”.

[14] It seems that the trial judge also refused to admit the Hansard excerpt. However, he was prepared to take judicial notice of the issues addressed by the Minister in her statement to the House, namely, the rationale for the legislation, the concern for safety of children, and the challenge in dealing with this new technology.

[15] On appeal, Crown counsel, who was not counsel at trial, sought to introduce a broad range of material concerning Internet use by children. This material included the 2005 version of the Wired World survey and not just the executive summary but the entire report, material from the Canadian Centre for Justice Statistics concerning the number of children who were victims of violent crime in 2003, information published by Media Awareness Network, and sponsored by Bell and Microsoft as part of the Be Web Aware project and testimony from hearings before the U.S. Congress concerning Internet predators.

ANALYSIS

The fresh evidence application

[16] The test for fresh evidence on a sentence appeal is similar to the test for fresh evidence generally as explained by the Supreme Court of Canada in R. v. Levesque (2000), 2000 SCC 47, 148 C.C.C. (3d) 193. Generally, the test tends to be applied somewhat less rigorously on sentence appeals. However, where it is the Crown that seeks to introduce fresh evidence on its sentence appeal, it is appropriate to pay special attention to the due diligence requirement. It is problematic to ask a court to increase a sentence many months after the sentence was initially imposed on the basis of material that could have been produced before the trial judge. In R. v. Levo (1996), 1996 1522 (ON CA), 105 C.C.C. (3d) 21 at 32, this court emphasized the undesirability of the prosecution placing this kind of material before the appeal court for the first time. In that case, Finlayson J.A. also raised a concern about “simply [placing] on the record articles and studies that were intended for a different and wider audience” such as the general public or a parliamentary committee.

[17] Much of the material sought to be admitted in this court could have been placed before the trial judge. Admittedly, the more recent version of the Wired World report was likely not available. But, had trial counsel considered it advisable to do so, she could have adduced the entire 2001 report. I do not criticize trial counsel for not having done so. She likely did not want to clutter the record with a very lengthy report when the executive summary would make her point. But, having made that tactical decision, the Crown should not now be able to revisit the matter on appeal.

[18] The material from the United States Congress falls into a different category as most of it postdates the sentencing in this matter. However, it is inadmissible as fresh evidence because it would not have affected the result. It consists in part of anecdotal material that may be of interest to legislators but is not sufficiently precise to assist a court in sentencing an individual. Finally, there is material consisting of the United States versions of the Wired World report and United States justice statistics. It is not appropriate to permit the Crown, having failed to adduce Canadian material of this nature at trial, to avoid the due diligence requirements by allowing it to adduce material of less relevance to a Canadian court from another country.

[19] For these reasons, we did not admit the Crown’s proposed fresh evidence.

Failure to admit the Crown’s proposed evidence at sentencing

[20] The Crown submits that the trial judge erred in failing to admit the Wired World material. As I understand it, the Crown does not complain about the refusal to admit the Hansard excerpt. In any event, the trial judge said that he was taking judicial notice of the contents of the Minister’s Statement as recorded in Hansard. His refusal to admit the actual document was of no moment.

[21] On this record, the trial judge did not err in refusing to admit the Wired World executive summary. Crown counsel sought to introduce this evidence for two reasons. First, to explain the material that was before the trial judge in a trial decision from Alberta. I have read the decision in question, R. v. Carrant. The reasons of the trial judge in that case would have been of limited assistance to the trial judge in this case. The report of the reasons contains few facts about the offence, or the offender, and the only reference to Wired World, is that the judge found the document “helpful and informative” (para. 12). There is no indication what use the judge made of the document. In my view, this first reason provided by Crown counsel at trial was not a sufficient reason to admit Wired World for its truth.

[22] The second reason provided by Crown counsel at trial was to support what she considered to be common sense notions of Internet usage by adolescents. I take this to mean that Crown counsel wished to place before the trial judge legislative facts or what are sometimes referred to as contextual facts. (See the discussion in Hill et al., McWilliams Canadian Criminal Evidence (looseleaf) (4th ed.) (Aurora: Canada Law Book, 2003) at §23.40). Defence counsel objected to admissibility of the document because he would not have an opportunity to cross-examine the author. I agree with the Crown that this was not a sufficient basis to refuse to admit the evidence. I do not, however, read the trial judge’s ruling as refusing to admit the document because Crown counsel did not intend to produce the author of the report. Rather, the trial judge was concerned about the form in which the evidence was presented to him. I have summarized his reasons above; he stated that he would have difficulty drawing any meaningful conclusions from the material without the assistance of a witness to explain it. In my view, it was within the trial judge’s discretion to refuse to admit the evidence in the form in which it was presented. He was given only the executive summary and provided with no information about the methodology used in the survey or the purpose for which it was commissioned. If the trial judge would not have found the information useful in the form in which it was presented, there was no reason for him to admit it. Crown counsel was not required to produce the author of the report but she did have an obligation to produce the material in a manner that the trial judge would find meaningful, for example, by calling an expert witness familiar with the report.

[23] Further, the Crown was not seriously prejudiced by the trial judge’s refusal to admit the document. The trial judge recognized the seriousness of the offence and the mischief to which the legislation is directed. He took judicial notice of the pervasiveness of the Internet and that children can access chat rooms. He also noted the “significant concern about safety of children, about children being harmed” and “the dangers that exist as a result of this new technology”. In his reasons for sentence, the trial judge also relied upon the decision of Ratushny J. in R. v. Jepson, [2004] O.J. No. 5521 (Sup. Ct.) and he quoted from para. 19 of her reasons:

Denunciation, deterrence, both general and specific, and rehabilitation are the objectives to be served in sentencing Mr. Jepson, in that order. Child luring over the internet requires strong denunciation because of the ease with which offenders can prey on innocent children, out of the reach of the public eye. The consequences can be catastrophic, especially where, as here, the sexually explicit talk progresses past the fantasy talk to a face-to-face meeting where the risk of physical sexual offences being committed becomes a more real risk. [Emphasis added.]

[24] The Jepson decision accurately identifies the seriousness of the offence and the appropriate approach to sentencing. The Wired World report would not have materially changed the trial judge’s approach.

Failure to accept Dr. Wright’s opinion

[25] The appellant submits that the trial judge erred in failing to accept Dr. Wright’s “uncontradicted expert opinion” that the appellant would not have acted out in the park. The trial judge was not bound to accept Dr. Wright’s opinion. He had to draw his own conclusions from all the information placed before him and the evidence he accepted. Given the appellant’s attraction to adolescent females, the explicit nature of the numerous communications with “Jessie”, his stated intention to perform sexual acts with her, and that he actually went to the park, not wearing underwear and with a condom, the trial judge could reasonably draw the inference that the appellant intended to perform some form of sexual act with the child, if given the opportunity. From reading Dr. Wright’s report and evidence, I think it reasonable to conclude that the appellant would not have used physical force against the child. But, the trial judge could easily conclude that the appellant was not simply using the Internet to indulge his fantasies but was grooming “Jessie” so that he would not have to use force. I would not give effect to this ground of appeal.

The quantum of the sentence

[26] The trial judge imposed a sentence of six months imprisonment, three years probation and made an order under s. 161 of the Criminal Code for ten years. On appeal, the Crown submits that the six-month sentence is inadequate, while the appellant submits that the trial judge erred in failing to impose a conditional sentence of imprisonment.

[27] I will deal first with the appellant’s appeal. In my view, a conditional sentence will generally be inappropriate for an offence of the nature committed by the appellant in this case. Given the degree of planning implicit in the offence and the seriousness of the conduct contemplated, the objectives of general deterrence and denunciation will rarely be satisfied by a conditional sentence of imprisonment. This offence is not committed simply through communication with a child, even communication of a sexual nature. The Crown must also prove that the offender communicated with the child, or a person he believed to be a child, for the purpose of facilitating commission of a serious sexual offence such as invitation to sexual touching, an offence which if committed a conditional sentence is not available.[^1] Moreover, this accused committed the most serious form of the offence as described in s. 172.1(1)(c); he communicated with someone he believed to be under fourteen years of age.

[28] The appellant relies upon this court’s decision in R. v. Folino (2005), 2005 40543 (ON CA), 202 C.C.C. (3d) 353 where the court varied a nine-month sentence of imprisonment to a conditional sentence. The circumstances of that case, however, were exceptional. The appellant did not suffer from pedophilia or hebephilia but was suffering from a major depressive illness at the time of the offence. He remained in a fragile mental and physical state at the time of the appeal and there was a significant risk of suicide if he was returned to jail.

[29] At paragraph 25 of the reasons of the court in Folino, McMurtry C.J.O. emphasized the seriousness of this offence and the limited circumstances in which a conditional sentence could be imposed:

Having come to this conclusion, I wish to first make it clear that I fully agree with the sentencing judge that the offence of child luring must be dealt with seriously by the courts. The social policy underlying the enactment of this offence is clear. Many Canadian families have home computers with Internet access. Children are frequent users of the Internet. Children, as vulnerable members of our society, must be safeguarded against predators who abuse the Internet to lure children into situations where they can be sexually exploited and abused. In most circumstances involving the offence of child luring, the sentencing goals of denunciation and deterrence will require a sentence of institutional incarceration. Indeed, it will only be in the rarest of cases that a conditional sentence will be appropriate in a case involving this offence. In my view, however, this is one of those rare cases. [Emphasis added.]

[30] In this case, the trial judge gave full consideration to the various mitigating factors and serious consideration to a conditional sentence. He did not err in imposing a custodial sentence. For this reason, we did not give effect to the appellant’s appeal.

[31] As to the Crown appeal, while I consider the sentence imposed by the trial judge to be a lenient one, I cannot say that the sentence is manifestly inadequate or that the trial judge erred in principle. The decisions of trial courts that were placed before us suggest that the range of sentence for this offence generally lies between twelve months and two years. Circumstances such as possession of child pornography or a record for other child sexual offences will require a sentence at the upper end of this range. Obviously, if the offender has previously committed the same offence, an even longer sentence may be required. The trial judge recognized that he was imposing a sentence below the usual range, but he had in mind a number of mitigating factors and the absence of any serious aggravating circumstances. He took particular note of the appellant’s relative youth and the impact of incarceration on his family.[^2] He referred at some length to R. v. Jepson, where Ratushny J. imposed a sentence of 12 months imprisonment in circumstances not unlike this case. But, as the trial judge noted, in Jepson, the offender was also found in possession of child pornography. Accordingly, we did not give effect to the Crown appeal.

DISPOSITION

[32] As indicated at the time of hearing the appeal, the Crown application to admit fresh evidence was dismissed as were the appeals from sentence by the appellant and the Crown.

Signed: “Marc Rosenberg J.A.”

“I agree Robert P. Armstrong J.A.”

“I agree Paul S. Rouleau J.A.”

RELEASED: August 11, 2006

[^1]: The invitation to sexual touching offence in s. 152 now provides for a minimum sentence of imprisonment. [^2]: The appellant’s mother and brother face very significant health challenges.