COURT OF APPEAL FOR ONTARIO
MacPherson, Gillese and Roberts JJ.A.
BETWEEN
His Majesty the King
Respondent
and
A.V.
Appellant
Paul Socka, for the appellant
Meghan Tait, for the respondent
Heard: December 17, 2024
On appeal from the sentence imposed by Justice Donna G. Hackett of the Ontario Court of Justice on May 12, 2023.
OVERVIEW
1When M.S. was between 11 and 12 years of age, she met the appellant on Facebook. He was between 20 and 21 years old at the time. The appellant had created various Facebook accounts which he used to communicate with M.S. Through them, the appellant asked M.S. to send him images of her vagina and buttocks. At his direction, she sent him photos and two videos of her inserting a hairbrush into her anus. These incidents came to the attention of the police nine years later when M.S. was in a relationship with the appellant.
2In 2023, the appellant pleaded guilty to, and was convicted of, one count each of child luring and invitation to sexual touching arising from these incidents. At the time of plea and sentencing, he had a criminal record that included four convictions for child pornography related offences for which he had been convicted in September 2014. He received the equivalent of a 30-month sentence for these convictions.2 It was agreed that the child pornography related offences coincided in time with the incidents for which he was being sentenced.
3The Crown sought a sentence of three and a half years. The defence sought a global sentence of two years but submitted that, in light of the appellant’s “dead time”, he should not be given any further custodial time; alternatively, if more time was required, he asked that it be served by way of conditional sentence.
4The sentencing judge imposed a five-year sentence which, after allowing for enhanced Duncan credit, left a further period of incarceration of three years and three and a half months. She gave detailed reasons in which she thoroughly reviewed the facts of the case, the parties’ positions, the issues, the appellant’s criminal record and background, the sentencing principles, and the caselaw to which she had been directed.
5The appellant appeals against sentence. He submits the sentencing judge made the following three errors in principle that impacted the sentence: (1) she exceeded the Crown’s position without notice and in reliance on a misapprehension of the appropriate sentencing range; (2) she failed to relate the historical nature of the offences to the objectives of specific deterrence and rehabilitation; and (3) she relied on inadmissible comments in the victim impact statement. In light of these alleged errors, the appellant asks this court to grant leave to appeal, allow the appeal, and substitute a global sentence of three years.
6For the reasons that follow, I would grant leave to appeal sentence but dismiss the appeal.
ANALYSIS
ISSUE 1 Exceeding the Crown’s position without notice
7At para. 52 of R. v. Nahanee, 2022 SCC 37, 474 D.L.R. (4th) 34, Moldaver J., writing for the majority, states that it is an error in principle for a sentencing judge to fail to provide notice and an opportunity for further submissions when they are considering exceeding the Crown’s position but such an error in principle will justify appellate intervention only where it appears from the decision that such an error had an impact on the sentence. At para. 59 of Nahanee, Moldaver J. goes on to explain that, where the sentencing judge fails to provide notice and/or an opportunity for further submissions, three types of errors in principle warrant appellate intervention:
if the failure to provide notice and/or further submissions impacts the sentence;
if the sentencing judge failed to provide reasons, or provided unclear or insufficient reasons, for imposing the harsher sentence; or
if the sentencing judge provided erroneous reasons for imposing the harsher sentence.
8Justice Moldaver further instructed, at para. 61 of Nahanee, that if no error in principle is established or the error in principle does not have an impact on the sentence, the only potential remaining ground of appeal would be whether the sentence is demonstrably unfit. The appellant does not allege that the sentence was demonstrably unfit.
9The appellant submits that the sentencing judge committed the third type of error identified in Nahanee because she “misidentified the appropriate sentencing range and, in so doing, erred in her application of the parity principle”.
10I acknowledge that the sentencing judge did not warn the parties that she was considering imposing a sentence that exceeded the Crown’s position or give them an opportunity to provide further submissions, as she should have: R. v. England, 2024 ONCA 360, at para. 82. However, I do not accept that the sentencing judge committed the alleged error. The sentence she imposed was not based on a misapprehension of the relevant authorities nor does it violate the parity principle.
11The Crown advised the sentencing judge that the range for the offences was three to five years, relying on R. v. Moolla, 2021 ONSC 3702. While R. v. M.V., 2023 ONCA 724, 169 O.R. (3d) 321, was not available to the parties at the time of sentencing, it confirms that a five-year sentence may be appropriate in more egregious child luring cases, a description which very much applies to the case at bar. As the sentencing judge stated, this was not only a child luring offence: it was properly considered a penetration case because, at the appellant’s direction, M.S. penetrated her anus with a hairbrush when she was between 11 and 12 years of age.
12Further, I do not accept that the sentencing judge arrived at a broader sentencing range than in the authorities. She repeatedly asked counsel to provide her with caselaw on the range for such offences because she had been given very few cases involving sexual penetration of a child and those that were provided pre-dated R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424. She noted that the guideline in R. v A.J.K., 2022 ONCA 487, 162 O.R. (3d) 721, was three to five years and while it was a penetration case, it was an adult victim and Friesen has directed that sentences in child victim cases should be greater than those imposed in cases involving adult victims.
13Thus, in my view, the sentencing judge was not comparing this case directly to adult penetration cases and suggesting that the range of sentence here should be higher. Rather, she was looking for guidance in the caselaw to try and ascertain the appropriate range and sentence for this specific case. Because she imposed a sentence similar to the sentences imposed in the cases with which she had been provided, I see no basis for finding that it violated the parity principle. In any event, sentencing is an individualized process and the sentencing judge gave compelling reasons for why a five-year sentence was appropriate in the particular circumstances of this case.
ISSUE 2 The passage of time as it relates to specific deterrence and rehabilitation
14At trial, defence counsel submitted that the 10-year gap in the appellant’s criminal record between his prior convictions for the child pornography offences and the offences for which he was being sentenced showed that the appellant was rehabilitated and posed a low risk of reoffending. The sentencing judge rejected this submission, finding that the appellant had a very significant risk of reoffending.
15While the passage of time can be a mitigating factor, the effect of delay on sentencing is a case-specific analysis: R. v. Milani, 2021 ONCA 567, 157 O.R. (3d) 314, at para. 46. In my view, the sentencing judge made no error in her treatment of the objectives of rehabilitation and specific deterrence despite the passage of time between the commission of the offences and the time of sentencing.
16It is abundantly clear from the reasons that the sentencing judge was fully aware of the historical nature of the offences and that the passage of time may impact on the objectives of rehabilitation and specific deterrence. However, she made findings which led her to conclude that the passage of time in this case had not influenced the appellant’s rehabilitation prospects or the need for specific deterrence.
17On the question of rehabilitation, the only evidence before the court was that the appellant had a taken a 10-week course approximately 9 years previously. There were no details or information about the nature of the course or the appellant’s participation in it. She indicated that rehabilitation would not be easy given that the sadistic acts he directed M.S. to engage in provided him with pleasure and satisfaction and showed a deep lack of empathy for a vulnerable child. It was open to the sentencing judge to find, as she did, that rehabilitation was a low priority for the appellant.
18In terms of specific deterrence, the sentencing judge found that it remained an important consideration. She pointed to the fact that the appellant maintained an intimate relationship with M.S. without any apparent appreciation of the damage he had caused her or insight into the significance of his offences. She also pointed to the horrific facts of the offences, including directing M.S., when she was between 11 and 12 years of age, to penetrate her anus with a hairbrush, record it, and send it to him. She further noted the documentation of the directed self harm and the lasting impact of the video and pictures.
19The sentencing judge made no error in principle in her treatment of the objectives of rehabilitation and specific deterrence. This ground of appeal provides no basis for appellate intervention.
Issue 3 The victim impact statement
20The last sentence of the complainant’s victim impact statement reads as follows: “I don’t believe [the appellant] deserves to be released on society until he learns why he did what he did and why doing this is harmful to children psychologically” (the “impugned statement”). The appellant contends that the sentencing judge erred by relying on the impugned statement to find that he had shown no remorse. I do not accept this submission.
21The sentencing judge acknowledged that the appellant was said to have cried on the morning of the plea when hearing the Agreed Statement of Facts read out in court and that the appellant’s comments in court at the time of his allocution indicated he was remorseful. However, she put little weight on those matters for reasons unrelated to the victim impact statement. She gave little or no weight to his assertion that he had changed because the offences for which he was being sentenced showed that he had a “remarkable calculated ability to manipulate and lie in his own interest”. She went on to explain that without an objective professional assessment, none of the reasons for her concern about his recidivism could be addressed by the gap in his record. She also found it relevant that the appellant maintained an intimate relationship with the complainant in later years, knowing he had abused her as a child. She found that this demonstrated a continuing insensitivity to the harm he had caused, and continued to cause, the complainant.
22The impugned statement may be outside the permissible scope of a victim impact statement. However, on a full and fair reading of her reasons, the sentencing judge did not rely on the impugned statement when assessing the appellant’s level of remorse. She made the relevant findings and determined the weight she would assign to the appellant’s remorse before she referred to the impugned statement.
23Accordingly, I see no error on the part of the sentencing judge in finding that the appellant had demonstrated little remorse.
DISPOSITION
24Accordingly, I would grant leave to appeal sentence but dismiss the appeal.
Released: January 9, 2025 “J.C.M.”
“E.E. Gillese J.A.”
“I agree. J.C. MacPherson J.A.”
“I agree. L.B. Roberts J.A.”
Footnotes
- His record also included three convictions from 2016, one for assault causing bodily harm and two for failing to attend court.
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C‑46.