WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
David Kron
Before: Justice D.A. Harris
Heard on: December 1, 2017 and January 26, 2018
Reasons for Sentence released on: September 14, 2018
Counsel:
- Harutyun Apel, counsel for the Crown
- Alan D. Gold, counsel for the accused David Kron
HARRIS D.A. J.:
INTRODUCTION
1David Kron pled guilty to four counts of luring, one count of voyeurism, and one count of possession of child pornography.
2Crown counsel had elected to proceed summarily with respect to all charges.
3Mr. Kron is before me today to be sentenced.
4Crown counsel suggested that I should sentence him to imprisonment for one year, followed by probation for three years.
5Counsel for Mr. Kron suggested that I impose a sentence of imprisonment for six months, followed by probation for one year.
6Both counsel agreed that I should make a DNA order and an order compelling Mr. Kron to comply with the Sex Offender Information Registration Act for life, and a forfeiture order with respect to certain items seized by the police.
7Crown counsel requested an order pursuant to s.161 of the Criminal Code, limiting Mr. Kron's access to children under the age of 16 years. Counsel for Mr. Kron argued that such an order was not appropriate in this case.
8I find that a sentence of imprisonment for six months, followed by probation for three years is the appropriate sentence here.
9My reasons for this are set out under the following subject headings:
- The fundamental purpose and principles of sentencing;
- The offences;
- The impact on the victims;
- The background of Mr. Kron; and
- Analysis
FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING
10The fundamental purpose of sentencing as expressed in section 718 of the Criminal Code is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
11The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.
12The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.
13Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:
The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence.
14He went on to state that:
The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence - especially the fault component - and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.
15He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:
The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.
16Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.
17Section 718.01 of the Criminal Code provides that, "When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct".
18Section 718.2(a)(ii.1) provides that evidence that an offender, in committing an offence, abused a person under the age of eighteen years, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.
19The offences have had a significant impact on the victims, considering their ages and other personal circumstances. Section 718.2(a)(iii.1) of the Criminal Code provides that this too is an aggravating circumstance, and that the sentence should reflect that.
20I must specifically consider section 718.2(d) which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".
21I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."
22The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.
23This principle is of less importance however in cases like this where there is a mandatory minimum sentence of imprisonment, but I still must take it into account.
24The Supreme Court also noted in Gladue that section 718 requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. A sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.
25The Ontario Court of Appeal has provided considerable direction with respect to sentencing adults who have sexually abused young victims.
26In R. v. D.D. and R. v. Woodward, the Ontario Court of Appeal "discussed the plight of children in general and the principles and objects of sentencing that must take precedence when adult predators choose to exploit innocent young children". The facts in those cases, as well as the sentence imposed are very different than in this case. I take from those cases however the following considerations and principles which I find to be relevant here:
(1) Our children are our most valued and our most vulnerable assets.
(2) We as a society owe it to our children to protect them from the harm caused by sexual predators.
(3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators.
(4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow.
(5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.
(6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.
27The fundamental message that the Court of Appeal has sought to convey is that:
The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear – prey upon innocent children and you will pay a heavy price!
28The maximum sentence for luring is imprisonment for two years less a day where the Crown proceeded summarily. The minimum sentence is imprisonment for six months.
29The legislative history of this is that The Safe Streets and Communities Act, which received Royal Assent on March 13, 2012 and which was proclaimed in force on August 9, 2012 imposed a mandatory minimum sentence of 90 days where the Crown proceeded by summary conviction. This was followed by the Tougher Penalties for Child Predators Act, which received Royal Assent on June 18, 2015 and came into force on July 17, 2015 and increased the minimum sentence to 6 months where the Crown proceeds by summary conviction.
30In August 2017, the Ontario Court of Appeal upheld a ruling that the mandatory minimum sentence of 12 months on the charge of child luring proceeded by indictment is unconstitutional. The Attorney General of Ontario applied to the Supreme Court for leave to appeal this decision which was granted on December 14, 2017.
31The maximum sentence for voyeurism is imprisonment for six months where the Crown proceeded summarily. There is no minimum sentence.
32The maximum sentence for possession of child pornography is imprisonment for two years less one day where the Crown proceeded summarily. The minimum sentence is imprisonment for six months.
33The offence of possession of child pornography also carried a minimum sentence of 90 days under the Safe Streets and Communities Act, 2012 where the Crown proceeded summarily. This minimum was raised to six months following the Tougher Penalties for Child Predators Act in 2015.
34I have referred to the legislative history of these sentences because it indicates clearly that Parliament has chosen on two separate occasions over the past six years to indicate that longer sentences of imprisonment are called for in cases of child luring and child pornography.
35In R v. Kwok, Molloy J. reviewed relevant factors to be taken into account during the sentencing of child pornography cases.
36She found the following to be aggravating factors:
(i) a criminal record for similar or related offences;
(ii) whether there was also production or distribution of the pornography;
(iii) the size of the pornography collection;
(iv) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted);
(v) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on his impulses in the past by assaulting children); and
(vi) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit as opposed to free downloads from the Internet.
37Generally recognized mitigating factors include:
(i) the youthful age of the offender;
(ii) the otherwise good character of the offender;
(iii) the extent to which the offender has shown insight into his problem;
(iv) whether he has demonstrated genuine remorse;
(v) whether the offender is willing to submit to treatment and counseling or has already undertaken such treatment;
(vi) the existence of a guilty plea; and
(vii) the extent to which the offender has already suffered for his crime (for example, in his family, career or his community).
38I am satisfied that this is an extensive, but not exhaustive list of the appropriate factors that I should consider in this case.
39Before I can apply the above principles however I must examine the offences here, the impact that they had on the victims and the background of Mr. Kron.
THE OFFENCES
Overview
40On May 25th, 2016, Mr. Kron was arrested for child luring and child pornography offences, in relation to three victims, MP, TR and EB. On that day, warrants were executed at his home in Vaughan and his office in Toronto. A large number of computer and data storage devices were seized incident to his arrest and pursuant to the warrants. Three new female victims, were identified, AB, EC and ZKT.
41All of these girls were between 12 and 14 years old.
42All of the luring offences occurred between March 1, 2016 and May 25, 2016.
43Mr. Kron pled guilty to luring AB, EC, ZKT and EB. In addition, it was agreed that the facts with respect to the luring of MP and TR would be read in.
Luring of TR
44TR contacted Mr. Kron over Snapchat, believing the Snapchat account used by Mr. Kron belonged to Myles Erlick, a known dancer. Using the myles.erlick account, Mr. Kron replied and he and TR started exchanging pictures. When TR got the pictures she realized that the person was not Myles Erlick and confronted him online about this. In response, Mr. Kron stated his name was Chris.
45TR and Mr. Kron continued to communicate over Snapchat and Mr. Kron tried to persuade her to send pictures of herself. TR sent him a picture of herself in underwear, and Mr. Kron sent her a picture of his penis.
Luring of MP
46MP contacted Mr. Kron over Snapchat, believing the Snapchat account used by Mr. Kron belonged to Myles Erlick. MP exchanged images with Mr. Kron and realized he was not Erlick.
47Mr. Kron requested MP send nude images of herself. In response to this request, MP sent nude images of herself to Mr. Kron and obtained nude images of Mr. Kron in return.
Luring of AB
48Mr. Kron contacted AB over Snapchat pretending to be her friend MP. Mr. Kron sent nude images of MP to AB and requested nude images in return. In response, AB took nude images of herself and sent them to Mr. Kron, believing that in fact she was sending images to her friend MP.
49AB's nude images were located on an iPhone 5 that was seized from Mr. Kron.
Luring of EC
50Mr. Kron contacted EC over Snapchat using an account in the name of Chris Leigh. The first contact occurred when she returned home after a Candance competition. Mr. Kron convinced EC that he was also a dancer and that he had been at the same competition. Having started on Snapchat, they moved their communication to iMessage. EC was only 13 years old at the time, although she told Mr. Kron that she was 14 years old.
51Mr. Kron sent images and requested nude images in return. Mr. Kron also sent nude images of MP and sexually explicit videos of his adult ex-girlfriend masturbating in an effort to get EC to send nude images of herself. EC did send nude images of herself and a video of her holding her own breasts to Mr. Kron.
52EC's nude images and video were located on an iPhone 5 that was seized from Mr. Kron. The phone also contained MP's nude images and the ex-girlfriend's explicit videos.
Luring of ZKT
53Mr. Kron contacted ZKT on Snapchat, pretending to be a female called Allexa Sky and using a Snapchat account in that name. ZKT had previously been at the same school as AB and MP. ZKT was only 12 years old and she advised Mr. Kron of her age.
54Mr. Kron sent nude images of a female, who was meant to be Allexa Sky, and requested nude images in return. ZKT reciprocated and sent nude images of herself.
55ZKT's images were located on an iPhone 5 seized from Mr. Kron.
Luring of EB
56EB was 14 years old and a friend with both MP and TR. She received a message from a Snapchat account with a username that EB believed belonged to MP, because MP's usernames for her social media always took that format. EB communicated with the person using the account, but when the person started sending nude images of MP and trying to persuade her to send images in return, she realized something was up. She contacted MP by another media app, and MP confirmed it was not her. EB screen-captured one of the pictures sent by the person and MP confirmed that she had sent it to the myles.erlick Snapchat account.
Possession of Child Pornography
57Child pornography images of the victims were on the iPhone 5 seized from Mr. Kron.
Voyeurism
58A data storage device seized from Mr. Kron bedroom on May 25, 2016 contained several video recordings of a hotel bathroom. The video footage has the date stamp, January 1, 2012.
59The footage captures two females using the bathroom, including them using the toilet and in a naked state. Neither female appear to know that they are being video recorded.
60Mr. Kron is also seen in the footage.
61The identity of the females and the location of the hotel are unknown.
IMPACT ON THE VICTIMS
62AB and her parents attended court to hear the sentencing submissions. AB wrote the following in her Victim Impact Statement:
This entire case took a toll on me emotionally. I wasn't able to communicate how I felt about any of it, I lost many friends because I had difficulty talking to anyone. It stopped me from being able to have a significant other because I was scared to trust people. There were and still are days where I don't want to get out of bed or where I'm not able to focus at school which affected my grades a very large amount. I was unable to complete simple tasks. I still have trouble trusting people because of this. It was hard to live my day to day life. This man terrorized children and caused so much pain in people's lives. I had difficulty talking to my own parents, my sister and my closest friends. I closed myself off from so many people because I was scared. I didn't know how to deal with it and it made my life so much more difficult to handle. I was constantly angry and upset and I wasn't able to control it. I lashed out at people or I would just randomly start crying. I didn't want people knowing about what had happened I was scared people wouldn't believe me or just start rumours about me.
Throughout this case I didn't know how to deal with my emotions. No one understood how I felt inside so I ended up harming myself. I figured this would help show how I felt inside since I didn't know how to talk about it. I was wrong. It caused me even more pain than I was already in. I continued to harm myself because people finally started to realize something wasn't right and that I needed help. Harming myself seemed to be the only thing that helped me communicate how I was feeling. After I did it I didn't feel as terrible on the inside so I thought this was my escape from reality, that harming myself was the answer to make my problems. I couldn't find another way to cope, I felt like I had no one and harming myself made me feel whole. My parents weren't aware of me harming myself and when they found out they decided it was time I went to see a therapist or just someone I could talk to about how I felt and different strategies to help me figure out my emotions and how to cope with all the stress I was experiencing. After speaking to someone at the ROCK center I learned it was okay to talk to people.
I have many fears but the main one I have is that people are supposed to use their actual names on social media. The defendant used a different alias/name than his own to lure me. Who knows whether or not he is going to do it again. He could easily do it again. I'm just scared if he will actually follow the conditions he was given or not.
63TR wrote the following in her Victim Impact Statement:
After what happened I have found myself battling with increased anxiety when being home alone at night or walking somewhere unaccompanied. I feel disgusted and it's repulsing that someone would manipulate me into sending them images especially an older man. I worried constantly about who would see those photos of me. I was afraid my peers at school would find out about them. It strongly affected my school as I wasn't focused. I was scared to leave school alone. I was worried the accused might show up and take me. I had trouble falling asleep at night. I couldn't shut my mind off thinking that he would come after me.
After communicating online with him and exchanging pictures I started to realize that he wasn't being 100% truthful about what he had portrayed himself to be online. I felt extremely guilty and felt shame that I had betrayed my parents trust based on social media rules. They told me never to add someone I didn't personally know. My parents restricted my social media and I struggled to regain their trust. I never like to be alone anymore. I find it very hard to trust people. This has changed me.
BACKGROUND OF MR. KRON
64I have been given a psychiatric report and 14 letters in support of Mr. Kron which provided me with the following information.
65Mr. Kron is now 25 years old.
66He was born in Toronto and grew up in Thornhill with his parents, biological sister and adopted sister. His father owned various businesses and is now retired. His mother is a district manager for a pharmaceutical company.
67Mr. Kron attended The Academy for Gifted Children, in Richmond Hill from grade 2 until he graduated high school in 2010. He was a high achiever in school and had good relationships with his teachers and other students.
68He started participating in competitive dance at the age of 5 and continued until he was 18.
69He also developed a strong interest in computers and started his own website business at 16 years old.
70He went on to attend the Schulich School of Business at York University and graduated in 2014 with a Bachelor's degree in Business Administration.
71After graduating, he started his own digital media company, in which he assisted clients with making websites and commercials, and with search engine optimization. Many of his clients provided letters of support.
72Due to bail conditions which prevent him from using a computer, Mr. Kron has since focused his efforts on a company in which he is now a part owner. He now provides flood protection services to clients through plumbing and water sensor installation, and additionally assists with business development and operations.
73Mr. Kron began attending sex offender group therapy with Dr. Monik Kalia on July 22nd, 2017. He completed Phase 1 of this program on August 25th, 2017. Phase 1 helped him to understand the underlying factors which led to the commission of these criminal offences. This therapy also focused on victim empathy, healthy boundaries and relationships, and how to avoid repeating the offending behaviour.
74He began Phase 2 of group therapy on September 1st, 2017 and attended the last session on October 5th, 2017. Phase 2 built upon the psycho-educational strategies learned in Phase 1. Dr. Kalia noted that Mr. Kron was always punctual for sessions and showed a good understanding of the concepts discussed in the group.
75He was assessed by Dr. Julian Gojer, a forensic psychiatrist. Dr. Gojer has determined that Mr. Kron has a low risk of reoffending. He has no major mental illnesses or personality disorders. He is interested in adult females and has had relationships with adult females. A diagnosis of pedophilia could not be made for Mr. Kron.
76He has no problem with alcohol. He has had some problems with substance abuse.
77Dr. Gojer did state that "Notwithstanding the absence of a diagnosis of paedophilia, it is important that Mr. Kron continue to have therapy to address his inappropriate behaviours. He should complete the phase 2 with Dr. Kalia."
78I note that Mr. Kron has since completed phase 2 with Dr. Kalia. There is nothing further however from Dr. Gojer suggesting that Mr. Kron no longer needs to continue the appropriate therapy.
79All of the reference letters described Mr. Kron in extremely positive terms and expressed great surprise that he was involved in offences such as these.
ANALYSIS
80Everyone agrees that Mr. Kron is going to jail. The question is for how long.
81Whatever sentence I impose, at least one side and maybe both will be disappointed.
82The victims and their families and friends may believe that the sentence is too lenient, while Mr. Kron and his family and friends may think that the punishment goes too far.
83I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of Mr. Kron and yet, at the same time, one that is responsive to his unique circumstances.
84I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.
85The aggravating factors can be found in the offences themselves.
86He preyed upon young girls, convincing them to provide him with intimate images of themselves.
87These girls were all between 12 and 14 years of age.
88He did this with six different girls over a period of three months.
89He was still in possession of the intimate images when he was arrested.
90He had shared the intimate images of MP with three of the other girls as part of his campaign to obtain similar images from them.
91The final aggravating factor is that the impact on at least some of the girls has been traumatic. I have no idea when, if ever, they will get over this.
92There are also a number of mitigating factors. In fact, every one of the mitigating factors enumerated in R. v. Kwok, supra is present in this case.
93Mr. Kron is a young man.
94He pled guilty. I take this to be an acceptance of responsibility as well as an expression of remorse. Most importantly, it made it unnecessary for the victims to testify. They were spared the ordeal of revisiting their victimization in a public courtroom.
95He had no prior criminal record.
96He has been bound by bail conditions with varying degrees of strictness since his release and has not offended further.
97Unable to continue his previous business due to bail restrictions, he has found other employment working in plumbing and flood protection services.
98He has participated in sex offender therapy and was found by Dr. Julian Gojer not to have an entrenched interest in child pornography or sex with children; in fact he has had relationships with adult females and continues to be interested in adult females. His potential for rehabilitation is strong and the likelihood of reoffending is low.
99He has strong support from friends and family.
100Counsel for Mr. Kron stressed the fact that a number of aggravating factors which are often present in child luring and possession of child pornography offences are absent here.
101These include the fact that no face-to-face meeting occurred between Mr. Kron and any of the victims. No sexual acts took place between them. At no time did he demonstrate any intention to actually commit a sexual act with any of the victims. All contact between him and his victims was strictly virtual.
102There was not a substantial amount of child pornography found in his possession. In fact, there was very little. There was no commercially produced child pornography. Mr. Kron did not purchase child pornography thereby contributing to the sexual victimization of children for profit.
103I note here that the absence of these aggravating factors does not constitute a mitigating factor. It simply removes from consideration, factors that would otherwise justify a longer jail term.
104In determining the appropriate length of that jail term, I am mindful that I must consider "all available sanctions other than imprisonment that are reasonable in the circumstances" and that Mr. Kron "should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".
105I also adopt the comments of Wilkie J. in R. v. Stoutley, that:
Jail is always the last resort, and where it is imposed as here, principally, to satisfy the need for general deterrence and denunciation, its impact, in my view, comes in large measure from the fact of meaningful incarceration, rather than the precise length.
106After considering all of the above, I am satisfied that the appropriate period of imprisonment in this case is six months, less credit for pre-sentence custody.
107I will now deal with the issues of probation and an order pursuant to section 161 of the Criminal Code.
108Crown counsel suggested probation should run for three years. Counsel for Mr. Kron argued that one year would be sufficient.
109Crown counsel asked me to make an order pursuant to section 161. Counsel for Mr. Kron argued that I should not.
110Section 161 provides that, having convicted Mr. Kron of an enumerated offence (including luring or possession of child pornography), I can make an order prohibiting Mr. Kron from:
(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, school ground, playground or community centre;
(a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order;
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;
(c) having any contact - including communicating by any means - with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or
(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.
111The duration of that order can be for any amount of time, up to life.
112With respect to paragraph (a), I note that there is no evidence before me indicating that Mr. Kron is prowling around parks or schools or community centres looking for young women to prey upon. Rather the evidence indicates that his offences here were ones committed on the Internet. He never met any of his victims in person.
113With respect to paragraph (a.1), I am satisfied that I should keep Mr. Kron away from the six victims, but I am satisfied that I can do this within the confines of the probation order that I propose to make.
114I have reached the same conclusion with respect to paragraph (b). Mr. Kron should be prevented from being in a position of trust or authority towards female persons under 16 years of age, but again, I am satisfied that I can do this within the confines of the probation order. The only reason for making a separate order pursuant to section 161 would be to extend the time Mr. Kron faces these restrictions beyond the three year maximum permitted for probation. In that regard, I am satisfied that three years is sufficient.
115I am also satisfied that one year is not sufficient.
116With respect to paragraph (c), I am not satisfied that I need to make an order preventing Mr. Kron from communicating with young females in person. I repeat that his offences all occurred on the Internet.
117With respect to paragraph (d), I am satisfied that I should prevent Mr. Kron from communicating with young females on the Internet, but again I am satisfied that I can do this within the confines of the probation order.
118In drafting the terms of that order, I am mindful of recent comments by both the Supreme Court of Canada and the Ontario Court of Appeal about restrictions on Internet use in orders pursuant to section 161. These comments include the following.
119In modern life, at least some form of access to the Internet is simply unavoidable for innocent purposes such as accessing services and finding directions. In many homes the telephone operates using the Internet, rather than traditional telephone wires.
120Depriving an offender of access to the Internet is tantamount to severing that person from an increasingly indispensable component of everyday life.
121Internet is used for such commonplace activities as shopping, corresponding with friends and family, transacting business, finding employment, banking, reading the news, watching movies, attending classes and so on.
122Courts should avoid imposing orders that create overbroad or unreasonable restrictions on an individual's liberty.
123Accordingly, I decline to make an order pursuant to section 161. Instead, I will include certain terms and conditions in the probation order.
124I am satisfied that the probation order should run for three years. This should maximize both the prospects of Mr. Kron's rehabilitation, and the protection of the public.
125In that regard, I note that the relevant portions of section 732.1(3)(h) of the Criminal Code reads as follows:
732.1 (3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following:
(h) comply with such other reasonable conditions as the court considers desirable….for protecting society and for facilitating the offender's successful reintegration into the community.
126The Supreme Court of Canada has stated that reasonable conditions will generally be linked to the particular offence but need not be. What is required is a nexus between the offender, the protection of the community and his reintegration into the community.
127The residual power to craft individualized conditions of probation is very broad. It constitutes an important sentencing tool. The purpose and principles of sentencing set out in ss.718 to 718.2 of the Criminal Code make it clear that sentencing is an individualized process that must take into account both the circumstances of the offence and of the offender. A sentencing judge is to craft conditions that are tailored to the particular offender to assist in his rehabilitation and protect society.
SENTENCE
128For the above reasons, I sentence Mr. Kron to concurrent sentences of time served, being 46 days pre-sentence custody, credited as 69 days, plus further imprisonment for 113 days, followed by probation for three years.
129The terms of the probation will require that Mr. Kron:
keep the peace and be of good behaviour;
appear before the court when required to do so by the court;
notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;
report in person to a probation officer within two working days of his release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;
his reporting requirement ends when he has satisfied his probation officer that he has completed all of his counselling;
cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;
not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with MP, TR, EB, AB, EC or ZKT;
not be within 20 metres of any place where he knows them to live, work, go to school, frequent, or any place he knows them to be;
attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer, including a sexual offender relapse prevention program or any other program recommended by his probation officer;
not seek, obtain or continue any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards female persons under the age of 16 years;
not use the Internet or other digital network, including email, texting, MSN Messenger, any other messenger system or any chat rooms, or Skype or Whatsapp or Facebook or Twitter or Instagram or Snapchat or any other social network, for the purpose of communicating with a female person under the age of 16 years. When communicating with anyone by means of such a computer system or other device, he will take reasonable steps to ascertain the age of the person. Further, when communicating with anyone by means of such a computer system or other device, he shall identify himself by his full real name, David Kron, and shall not use any pseudonym, nickname or code name to identify himself.
not possess or access child pornography;
not possess or access any images of children who are, depicted to be or appear to be under the age of 18 years who are naked or who are portrayed in a sexual manner;
not possess any digital, video or photographic images of MP, TR, EB, AB, EC or ZKT. He has 5 days in which to dispose of any such images currently in his possession.
130I also make the following ancillary orders.
131These are primary designated offences and I make an order pursuant to section 487.051 of the Criminal Code, authorizing the taking from Mr. Kron of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.
132They are also designated offences pursuant to section 490.011 of the Criminal Code. Accordingly, I make an order pursuant to section 490.012 of the Criminal Code that Mr. Kron comply with the provisions of the Sex Offender Information Registration Act for life.
133I have signed the forfeiture order which was provided to me.
134Mr. Kron will have six months following his release to pay the victim fine surcharges.
Released: September 14, 2018
Signed: Justice D.A. Harris