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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and
(b) on application made by the victim, 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 —
Christopher May
Before: Justice A. R. Mackay
Heard on: January 29, 2019 and August 23, 2019
Reasons for Sentence released on: October 4, 2019
Counsel:
- Carrie Vanden Broek, counsel for the Crown
- Antonietta Raviele, counsel for the defendant Christopher May
MACKAY J.:
Introduction
1The defendant pled guilty to one count of luring a child under the age of 16 for the purpose of committing a sexual assault contrary to section 172.1(1)(b) of the Criminal Code. The 15-year-old victim, K.B., was the daughter of a friend of his whom he had met several years prior while serving a sentence at OCI.
2On November 10, 2017, K.B. was on Snapchat playing a game with her friends. The defendant was on Snapchat as one of her friends. The victim advised that if an "X" is sent to a friend over Snapchat they have to answer the questions that follow. The defendant asked her to send him a questionnaire that she had received; he was not aware of the contents. The questionnaire included questions about what the person would do if they were alone, and what the person would do if the sender leaned over and kissed them and "smash or pass".
3The defendant responded to the questionnaire with the following answers: "kiss you back, and then some", "Smash for as long as you'd let me".
4The defendant then asked why K.B. would send him the message and she responded, "because you wanted to see it". From there the conversation turned to the defendant telling the victim how beautiful she is and how he feels guilty when he comes over to visit her parents as he is "all the while looking at her". He then tells K.B. that he and his spouse want her to visit for a weekend. He talks about how he remembered how "fucking perfect" she looked in her little bikini.
5Soon after, the defendant's texts become, at times, incoherent because of the texting errors such as "dying we want full fuck you ike MAD."
6The victim tells him to go to bed as he can't even spell. However, the defendant is relentless. Soon after he texts "those right bikini bottoms or yours. I could read the outline of your, u MMM,… Parts in there …"
7The victim tells the defendant he is tired as he "can't even spell". She advises him she is going to bed.
8Still the defendant urges her to come visit, "Come for and see us… You won't regret it."
9He later texts "Ican't. Type. It. I just K just know thst beig and Heidi 5 want you naked. ☹". He then asks her "Can you send any nudes?" She answers "No!" and tells him to ask Heidi. Heidi is his wife.
10He replies, "No, I we… she wands to see your pussy too 😊".
11The victim responds "Omg no go to bed and read this when you wake up".
12He continues and says "Omg on… Send us a. Pic. 😊 One who is pic of ourpussg3". She tells him she is trying to sleep.
13Still he continues with "Of you ever dream your pussy being kicked…oldssf it me be e Me we".
14K.B. tells him "no" and advises him that her screenshot button is right beside her home button. The victim had been taking screenshots of the conversation.
15The defendant continues to text a few more sentences but at this point they are difficult to discern. This would be consistent with the defendant's version that he was heavily intoxicated.
16The last message: "D.o me a discoud. K? Send. What.a.# man pureede out key? I wamt to. I miss. Found u heae war. To ass. Bweem".
17The next morning the defendant texted the victim an apology for "any rude or inappropriate messages last night. I can't see what I wrote, but pretty sure I sent stupid stuff. ☹ Sry." And, "Bits of last night are coming back to me. I'm so embarrassed. ☹"
18The victim made the defendant aware that she had told her mother. The mother of K.B. received an email from the defendant approximately five days after he sent the disturbing texts, apologizing for the messages he had sent to K.B. He stated, "The shame and embarrassment of my actions, and how quickly I have lost people I know … in one drunken night". He acknowledged that drinking was not an excuse and stated "I recklessly affected the lives of other people I care about. All I can say is that I am truly sorry……"
19The victim told her mother and they attended at the Brantford Police Station to report the incident. On May 17, 2018, Peel Police attended and obtained the video statement of the victim. The defendant turned himself in the following day and provided an inculpatory statement. I was not advised as to why Peel Police waited six months to continue the investigation.
Mr. May's Account
20In Dr. Gojer's report the defendant provided the following account of his offence.
21He explained that he became a friend of the victim on Snapchat because she added him as a friend. Prior to having her own device, when the defendant would visit, she would borrow the defendant's phone to play games and take photos using his Snapchat account. The two sporadically communicated through Snapchat for about six months before the offence. They would send random photos of things like K.B.'s pets. It was never suggested that these communications were inappropriate.
22The defendant began to drink hard alcohol and blacked out regularly since 2017. The heavy drinking continued with his mother's passing shortly thereafter. She had been suffering with multiple sclerosis. On the night of the offence he consumed a large amount of rum; his fiancée was out shopping for a wedding dress with her mother.
23K.B. sent him a message through Snapchat advising him that she was bored and at McDonald's. The defendant sent her a photo of his glass of rum. They started conversing through Snapchat.
24The defendant was aware that he invited her to come visit but he did not know how he expected her to get there. He woke up the next morning feeling that he had been rude or inappropriate to K.B. the night before. However, he could not remember the details.
25The defendant knew what he did was wrong, and that alcohol had a role to play. He admitted that he had an attraction to underaged girls and had been in control of his urges for many years but relapsed under the influence of alcohol. It is now clear to him that he has pedophilia, a lifelong disorder which must be managed with therapy and treatment.
26He denied fantasizing about the victim prior to the offence and advised that his actions were impulsive only on the day of the offence.
27The defendant advised that part of his downfall related to the fact that after his mother's death he learned that his father had carried on an affair for years. This greatly hurt his relationship with his father. His father is his only family as he does not have siblings. He chose to isolate himself and turned to alcohol.
Circumstances of the Offender
28The defendant is 43 years old. His home environment was loving, and he had a good upbringing. He pursued his education and completed a Master of Science degree in Watershed Ecosystems. Throughout his undergraduate years he worked at a factory during the summers. During his Master's degree he also worked.
29His current employer is aware of his offence and has been understanding. He works for a large company in a food safety role. His employer is aware that he will be sentenced to a term of incarceration and is prepared to let him return to work provided he is able to return in 15 months.
30Part of the defendant's release order required him to live with his father in London, Ontario. As a result, he had a long commute each day to and from work.
31The defendant was married for six years but his wife divorced him after he was charged a second time for possession of child pornography. He met his current wife on the dating app Tinder. Her stated age was 32. However, after questioning her, he learnt that she was 17 years old. He was 39 years old at the time. She was approximately 20 years old at the time of sentencing. They have been married for one year.
32The defendant has a prior record for two convictions of possession of child pornography. In 2005, he received a conditional sentence and, in 2008, he received a sentence of 12 months for possession of child pornography and failing to comply with a probation order.
33I have received letters from those closest to the defendant: his father, his mother-in-law, father-in-law, and his wife. All have spoken very highly of the defendant and the efforts he has made to address his disorder. They are aware of his offence and of his previous record. They have all confirmed that the defendant is genuinely remorseful and that he has been working very hard to ensure that he does not repeat his criminal behaviour.
34Heidi May's parents are very supportive of the defendant even though he is approximately 20 years older than their daughter. They believe him to be committed to his rehabilitation and to living a pro-social life. They know him to be a kind and caring individual.
35David May has described in detail the struggles his son has gone through. After his second conviction for child pornography the defendant lost everything that was important to him at that time: his wife, job and home. However, through counselling and hard work, he was, for a time, able to rebuild his life. He confirmed that his son applied himself to the best of his ability at OCI to understand his disorder and to learn how to manage it. After being charged with the offence before the court, the defendant engaged in intensive therapy. David May attended a session as well with his son to rebuild their relationship. The defendant's wife, his father and his partner have been present at his court appearances.
36I have also received a letter from the defendant's manager, Ms. Young. She has described the defendant as being hard working and kind to his fellow employees. She has confirmed that the company will hold his job for a period of time.
Psychiatric Report
37Following his first charge, the defendant saw a therapist, Mr. James Loh, and attended group counselling for sex offending at Community Justice Initiatives. Dr. Gojer is aware of Mr. Loh and respects his work. The defendant reoffended while on probation and was sent to OCI for about six months where he completed a sex offender program. Following his release he saw Mr. Loh again and a psychologist at Dr. Gojer's clinic for a brief period. He stopped seeing Mr. Loh when his probation ended in 2011. After being arrested on the present charges, he again started seeing Mr. Loh.
38It is Dr. Gojer's belief that the defendant has good insight into his illness. He suffers from heterosexual pedophilia. He is also suffering from depression due to the loss of his mother. He has a history of suffering from anxiety and depression and this was worsened with the death of his mother. He coped with the depression by drinking excessively. He has stopped drinking since the offence.
39It is Dr. Gojer's opinion that if the defendant is untreated he remains a moderate risk to reoffend. The following are his recommendations for treatment: that the defendant continue in individual and group counselling for his pedophilia. He further requires counselling to deal with the loss of his mother and his father's infidelity. In addition, he should have counselling to deal with alcohol abuse. If the defendant is given a reformatory sentence, Dr. Gojer recommends that he be referred to OCI in Brampton so that he can repeat the sex offender program.
Sexual Offence Specific Clinical Assessment and Treatment Report
40Mr. James Loh also provided a report to the court. Since July 2019, the date of the report, the defendant completed approximately 31 hours of offender specific sessions. The defendant's wife often attended the meetings. In-between their meetings, the defendant also completed homework and had email contact with Mr. Loh.
41It is Mr. Loh's opinion that the defendant appears to have true remorse for his behaviour toward K.B. and the collateral damage to her family and to his own family. The following summarizes areas of Mr. Loh's report. The defendant has a personal awareness that he has a pedophiliac tendency but remains adamant that he was successful in abstaining from the use of child pornography for over 10 years.
42Mr. Loh focuses on an assessment/treatment model that seeks to help the offender manage their urge for deviant sex but it does not necessarily cure the urge. Mr. Loh has focused his treatment on the identification of the defendant's sexual offence chain and cycle, and the development of plans to prevent him from experiencing a total relapse. The therapy that the defendant took part in is based on a cognitive-behavioural paradigm that is the preferred methodology for treatment of sexual offenders and is used at OCI.
43Mr. Loh wrote: "There is overwhelming support in the literature that an untreated sexual offender will always pose a higher risk to behave in a sexually deviant way as compared to those that [have] undergone treatment."
44It was Mr. Loh's conclusion that the defendant is a low risk sexual offender. However, he advised that the defendant will need continuing treatment for pedophilia and a number of other related issues. Mr. Loh then listed multiple factors that will mitigate the defendant's risk to reoffend which included that he is highly motivated to continue sexual offence specific treatment, abstain from alcohol, that he has the support of his wife and father, and that he has genuine remorse. He has recommended that the defendant continue to receive intensive sexual offence specific treatment.
Position of the Parties
Crown
45Ms. Vanden Broek submits that a jail sentence of two years less a day is warranted, followed by probation. In addition, she asks for the typical corollary orders. The Crown advised she would have pushed for a lengthier sentence but for the defendant's dedication and commitment to counselling. The Crown was also impressed with the defendant's early remorse. She underlines the fact, however, that the defendant has a prior related record and that he was on a lifetime SOIRA order at the time he committed the offence. In addition, the defendant has known the victim's family since she was 8 years old.
Defence
46Ms. Raviele submits that a 12-month sentence is appropriate given the number of mitigating factors in this case which include the following. The defendant has a 10-year gap since his last conviction. He did not make a specific plan to meet the victim nor was he involved in any protracted grooming of K.B. The offence consisted of one incident of communication, unlike many of the other cases which involved ongoing communication.
47The later text messages appear to be consistent with the fact that they occurred when the defendant was impaired. The following day the defendant apologized to the victim for the text messages he sent.
48The defendant took responsibility and pled guilty to the charges. Most importantly, he has participated in extensive treatment and therapy since he was arrested.
49In addition, no images were exchanged or taken. However, the defendant in fact requested nude pictures of the victim.
50The victim has chosen not to submit a victim impact statement.
The Crown's Cases
51In R. v. Dragos, the appellant met the victim in an internet chatroom. Both the victim and the 24 year old appellant used sexualized language. The victim, who was 13 years old, advised she was 14. Approximately 1,000 pages of their electronic exchanges were admitted into evidence. This included instances in which the appellant repeatedly encouraged the victim to expose her breast while he masturbated and exposed his genitals to her. He recorded the images and saved them to his computer. Eventually they met at a hotel and engaged in sexual acts short of intercourse before they were interrupted by police. Mr. Dragos received a global sentence of 23 months for luring, sexual interference, child pornography and indecent exposure; 18 months was apportioned for the child luring.
52In R. v. Woodward, the Appellant received a global sentence of 6½ years for luring, sexual assault, touching for a sexual purpose, invitation to sexual touching, and attempting to obtain sexual services for consideration. The victim was 12 years old and the appellant was aged 30. Mr. Woodward engaged in an elaborate and sophisticated plan to have sex with the victim, and tragically his plan succeeded. He had her believe that he would pay her millions of dollars if she had sex with him. Eighteen months of his sentence was apportioned to the child luring.
53In R. v. A.H., the appellant sent a friend of his twin daughters Facebook messages with explicit requests for sexual contact and pictures of his penis. In addition, he sent a picture of a man and a woman in a sexual position. The victim was just 15 years old. He was convicted after trial. He continued to deny he committed the offence and expressed no remorse. The Court upheld the 15-month jail sentence.
54In R. v. Harris, the appellant was sentenced to 18 months jail. He had posted two ads on Craigslist, one entitled "Daddy's dirty Slut." An undercover officer, posing as a 14 year old girl, made contact with the appellant. He often steered the direction of the conversation to sexually explicit matters. The communication took place over the course of two months. A meeting was arranged and the appellant met at the designated spot carrying a peanut butter and jelly sandwich as requested by the undercover officer. No analysis was done with respect to the fitness of the custodial portion of the sentence as the appellant had served the custodial portion of his sentence. A request to shorten the three year probation order was denied.
The Defence Cases
55In R. v. B.R., the appellant was sentenced for two separate incidences involving children. He pled guilty to voyeurism and making child pornography as a result of making films of his 13 year old niece. Two years later he messaged a 16 year old girl on Facebook which led to him having a covert meeting at his house with the victim. He convinced her to pose nude for approximately 600 images. There were a number of mitigating factors which included he had no record, served in the military with an exemplary record, and he suffered from PTSD. He expressed remorse and wrote a letter of apology to the 16 year old victim.
56The aggravating features included that B.R. had groomed the 16 year old through "subtle manipulative, step-by-step escalation in his demands". Further, he exploited the victim's desire to help her mom financially.
57The Court upheld the global sentence of 4 years. Twelve months was apportioned for the internet luring. It should be noted that given the appellant received a global sentence, the sentencing judge was required to ensure that the overall sentence was fit and then assign sentences for each offence and designate each as concurrent or consecutive to fit within the global sentence. The same can be said of R. v. Saad; the accused received a global sentence of 7½ years with just 12 months apportioned to the internet luring with respect to one victim and 15 months jail with respect to another victim. Mr. Saad committed a number of offences which included sexually assaulting three teenage victims. There were several aggravating features which included the existence of planning, organization, grooming, he lured the victims by money, alcohol and drugs, and lied about his age. None of these extremely aggravating features are present in the case before me.
58In R. v. Haniffa the accused responded to an online prostitution advertisement for "young girls". Unaware he was speaking with an undercover officer, he negotiated a price for sexual services and drove to a hotel to have sex with a 15 year old girl. He was arrested by police at the hotel. Kenkel J. convicted Mr. Haniffa and sentenced him to 12 months jail. Included in Haniffa is a review of related post-trial "project Raphael" cases where an undercover officer posed as girls, between 15 and 16 years old, working as prostitutes. The sentences ranged from 9 to 14 months jail.
Analysis
59The courts have recognized that child luring over the internet requires the court to impose significant periods of incarceration for offenders because of the ease with which offenders can prey on children while they are in their homes out of the reach of their guardians. Children are frequent users of the internet and must be safeguarded against online predators. The offence carries real dangers which include innocent children being seduced and sexually assaulted or even worse, kidnapped, sexually abused and possibly killed.
60At the forefront of what I consider is the goal of protecting vulnerable children pursuant to section 718.01 of the Criminal Code. Denunciation, deterrence and separation from society are the predominant objectives when sentencing offenders for the offence of online child luring. This is not to say that the offender's prospects for rehabilitation will not warrant consideration.
The Range of Sentences
61In R. v. Jarvis, Justice Rosenberg noted in 2006 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."
62However, the Court of Appeal in Woodward revised the range stated in Jarvis as follows:
Even if Jarvis did purport to set a range of 12 to 24 months for the offence of luring, that range needs to be revised given the 2007 amendment in which Parliament doubled the maximum punishment from 5 years to 10 years. Moreover, if it is shown through the introduction of properly-tendered evidence that the offence of luring has become a pervasive social problem, I believe that much stiffer sentences, in the range of three to five years, might well be warranted to deter, denounce and separate from society adult predators who would commit this insidious crime.
63I have considered section 718, and considered the fundamental purposes of sentencing that are set out in sections 718(a) through (f) of the Criminal Code.
64In R. v. A.H. the Court of Appeal reviewed some of the recent sentencing cases and appeared to approve of a 12 month sentence imposed in R. v. Gucciardi where there were several mitigating factors which included "the fact that the accused pleaded guilty, expressed remorse, had a supportive family, and had taken positive steps toward his rehabilitation."
65The facts in Gucciardi were more serious in many respects than the facts before me. Mr. Gucciardi posted an ad to attract young girls. He communicated for three weeks with who he believed was a 14 year old girl named "Katie". It was, in fact, an undercover officer. The conversation was sexually explicit and he sent "Katie" an instructional sex video and pictures of himself masturbating. He followed through with a plan to meet "Katie" and was arrested by police. However, the accused did not have a prior record and underwent extensive sex offender therapy.
66A fundamental principle of sentencing is that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A balancing of the aggravating and mitigating factors is required. Sentencing is a highly individualized process, however, which requires a judge to consider all the relevant factors and circumstances, including the status and life experiences of the person standing before them.
67A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.
Aggravating Factors
68The fact that the victim was 15 years old is a serious circumstance included in the offence and not a further aggravating factor.
69The defendant has two previous convictions for possession of child pornography and was on a SOIRA order at the time of the offence. However, his last conviction was approximately a decade ago.
70He knew the victim and her parents, and they trusted him.
Mitigating Factors
71The defendant was remorseful the morning after he sent his Snapchat messages. He initially had little recollection of his messages given his level of intoxication but took full responsibility. He apologized to the victim and her mother prior to being charged by police.
72He has participated in extensive counselling and treatment. I am advised from both Dr. Gojer and Mr. Loh that the defendant has insight into his disorder. Dr. Gojer considers him a moderate risk to reoffend and Mr. Loh considers the defendant a low risk to reoffend provided he continues with his treatment.
73He has the support of his family and employer.
74The defendant has committed to continuing with a comprehensive treatment which will focus on relapse prevention.
75He has abstained from alcohol since the offence and is committed to live alcohol-free.
76In the case before me the communication was not protracted. There was no evidence that the defendant had committed a similar offence or had attempted to do so. There was no real plan to meet and no follow through to meet. Instead there was an immediate apology sent the following morning when the defendant was sober. Had this been the defendant's first offence he very likely would be looking at a sentence that was less than 12 months jail were it not for the mandatory minimum, given the nature of the offence was not as aggravating as many of the recent cases I have reviewed. The defendant is deserving of further mitigation in light of his immediate acknowledgement of his crime and his guilty plea.
77Other than the one night when the defendant had texted the victim, the Crown has not alleged that the defendant was engaging in inappropriate or criminal behavior. Many of the cases that I have reviewed involved accused persons attempting to lure and communicate with teenagers or children over an extended period of time.
Sentence
78The defendant, for the offence of child luring under section 172.1(1)(b) of the Criminal Code, I sentence you to 15 months jail.
79At the completion of your custodial sentence you will be placed on probation for a period of three years. You will be subject to the following conditions of probation:
That you keep the peace and be of good behaviour.
That you attend court if and when directed to do so.
That you advise the court or your probation officer in advance of any change of name, address or occupation.
That you report to Probation Services within three working days of your release from custody and thereafter if and when directed to do so by your probation officer.
That you take any counselling or therapy as recommended by your probation officer, with a specific recommendation that you continue to take sex offender therapy.
And finally, that you sign any necessary releases to allow your probation officer to monitor your attendance for any counselling or therapy that is recommended and your completion of same.
80In addition, an order will issue pursuant to section 161 of the Criminal Code. I make this order given the defendant used an electronic device to attempt to lure the victim. More importantly the defendant without treatment remains a moderate risk to young persons. I find that the order is required to protect the public. The terms of that order will be as follows:
Pursuant to section 161(1)(c) of the Criminal Code, for a period of 20 years following his release from custody, the defendant is not to use a computer system within the meaning of section 342.1(2) of the Criminal Code for the purpose of communicating with a person under the age of 16 years, except for immediate family members;
Pursuant to section 161(1)(d) of the Criminal Code, for a period of 20 years following his release from custody, the defendant is not to use the Internet or any similar communication service to:
a) access any content that violates the law;
b) directly or indirectly access any social media sites, social network, Internet discussion forum or chatroom, or maintain a personal profile on any such service (e.g. Facebook, Twitter, Tinder, Instagram or any equivalent or similar service).
81There are a number of further ancillary orders that will also issue, those being:
An order that the defendant comply with the Sex Offender Information Registration Act for life;
An order directing the taking of a sample of the defendant's blood for inclusion of his DNA profile in the National DNA Databank.
Released: October 4, 2019
Signed: Justice A. R. Mackay