Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Ian McNaughton
Before: Justice A. R. Mackay
Heard on: September 27, 2018, March 22, 2019, August 1, 2019
Reasons for Sentence released on: October 11, 2019
Counsel:
- Jelena Vlacic, counsel for the Crown
- Arun Maini, counsel for the defendant Ian McNaughton
Reasons for Sentence
Guilty Plea
1Ian McNaughton plead guilty before me to a charge that he, by means of a computer system, communicated with a person he believed to be less than 16 years of age, for the purposes of facilitating the commission of the offence of sexual touching, contrary to s. 172.1(1)(b) of the Criminal Code of Canada.
2These are my Reasons for Sentence.
Circumstances of the Offence
3An agreed statement of facts was filed as an exhibit. In addition, many of the chat logs between Mr. McNaughton and the undercover officer were also introduced.
4Briefly, the essential facts are the following. On October 18, 2017 and through to January 31, 2018, Mr. McNaughton engaged in ongoing discussions through a chatroom forum, over email or over text message with an undercover officer who posed as "Melanie", a 38 year old mother of two teenage girls. The defendant also engaged in sexual conversations with "Maddie" who he believed to be the 13 year old daughter of Melanie. He detailed how he wanted to perform oral sex on her and for her to perform oral sex on him. He expressed how, eventually, he wanted to have sex with her and that they would use condoms. Maddie was, in fact, the same undercover officer. The chats between the two span hundreds of pages between January 11 and January 30th, 2018.
5The discussions with Melanie relate to offering her daughter to the defendant to have sexual relations with her. Mr. McNaughton detailed how he would want to start performing oral sex on her, but that he would want to work up to "all sorts" of sexual acts with her. Mr. McNaughton's discussions are disturbing and graphic. He starts with proposing a plan of how he will groom Melanie's daughter to have sex with him. The seriousness of the offence culminates in Mr. McNaughton arranging to meet Maddie to engage in sexual activity with her.
6Mr. McNaughton met with the undercover officer, who he believed to be the mother, to arrange a date to meet Maddie. He hatched a plan as to how the meeting would go and what he would do with Maddie sexually. Mr. McNaughton bought condoms and high heels in anticipation of having sex with Maddie. He was arrested when he attended the address where he believed he would be meeting a 13 year old girl.
7A search of Mr. McNaughton's chats revealed that he often engaged in role-playing with other individuals asking them to pose as 12 or 14 year old girls and often go by the name of "Chyanne", his step-daughter's name. He told multiple users that his step-daughter used to tease him.
8Other chats involve him agreeing to pay seemingly teenage girls from 16 to 19 to spend several days with him and engage in sexual acts with him. He would request that they call him "Daddy" and he would call them "Chyanne".
The Circumstances of the Offender
9Much of Mr. McNaughton's background came from the psychological report prepared by Dr. Iosif.
10Mr. McNaughton is 44 years old. He has been living with his girlfriend of 9 years. He has a step-daughter through his common-law partner. He has a 17 year old daughter that he sees only once or twice a year. He also has two other children ages 27 and 24.
11He had a normal upbringing although he described his childhood as being lonely. However, he did report being touched and forced into oral sex when he was 10 years old by an older male cousin.
12Mr. McNaughton has a younger brother. His parents are both deceased. His brother and him had issues over their parents' estate and, at the present time, his brother wants nothing to do with him.
13The defendant went to college to be an electronic technician. He was employed as a tech analyst, for the past 15 years, however, he has been on involuntary leave since January 2018 as a result of the offences. His bail conditions required him to advise his employer of the charges.
14Ms. Clarke, the defendant's partner, provided a letter of support. Although she initially was shocked by what Mr. McNaughton had done and questioned whether she could forgive him, she has now committed to helping him and ensuring that he gets therapy. She wrote that he has been a good husband and a good step-father. He has been supportive and kind to all members of her family.
15Mr. McNaughton will likely be required to move as the bank may foreclose on his home.
16He does not have a criminal record.
17Several months after the defendant was charged, he attempted to undergo an assessment and seek therapy. However, after attending for one session with Ms. Julie Zikman, he could not afford to continue. Ms. Zikman is a social worker with direct experience in assessment and treatment of sexual offenders. She worked for 10 years with the CAMH Sexual Behaviours Clinic. Ms. Zikman provided a letter which confirmed Mr. McNaughton's attendance and that he advised her he was experiencing significant financial stress due to the loss of his job.
Risk Assessment
18Mr. McNaughton participated in a forensic psychological assessment. A report was completed by Dr. Iosif. The following is a summary of his report.
19Mr. McNaughton denies having an attraction to prepubescent or pubescent girls.
20He denied ever having fantasized about his step-daughter, Chyanne. However, it should be noted that he used this name in his chats with the undercover officer.
21When Mr. McNaughton was confronted about why he was on the "motherless" website engaging in these types of illicit conversations with seemingly young girls and why he would have had the conversations he did with Melanie and Maddie, he had no real answer. He advised that he "could not rationalize it to himself". He admitted to going to the address to meet Maddie but stated it was his intention to leave "before it got any further". On this point, defence counsel put on the record at the outset of the sentencing that Mr. McNaughton is admitting that the offence has been proven which included the following aggravating facts: that he believed Maddie was aged 13, that he had intended to carry out his desire for sexual activity and he took all the necessary steps to do so.
22Mr. McNaughton does not believe that he suffers from pedophilia. However, he stated if he has a problem he would like to get help so this does not happen again. Ms. Clarke, the defendant's partner, was interviewed. It was her belief that the defendant has struggled with depression and anxiety since his father and her father both died in 2017.
23When she asked Mr. McNaughton why he committed these offences, he said he did not know and cried. He seemed confused and upset.
24Mr. McNaughton underwent phallometric testing. The results were indicative of hebephilia. His responses were by far highest to pubescent girls, second highest to pre-pubescent girls.
25Dr. Iosif concluded that despite Mr. McNaughton's professed bewilderment at his own criminal behaviour, it is very likely that he has a pedophilic preference. It is possible that the defendant's present denial of such conclusion "is the result of severe cognitive distortions consisting of denial and rationalization which are common in sex offenders".
26Mr. McNaughton's full sexological diagnosis is pedophilia, non-exclusive, sexually attracted to girls. He scored low in his risk of re-offending based on the recognized Psychopath Checklist-Revised (PCL-R). He does not have any substance abuse issues, social isolation in his history or other enhancing risk factors. He also scored very low on the structured guide for the assessment of violence risk. The result suggested low probability of recidivism.
27Dr. Iosif's clinical judgment is that Mr. McNaughton's likelihood of re-offending is low. However, he cautioned that "anyone with a diagnosis of pedophilia should be considered at least at moderate risk for long-term problematic behaviour involving children, particularly in situations in which they may have unsupervised access to children".
Positions of the Parties
28The Crown is seeking 18 to 21 months jail followed by two years of probation. Both Defence and Crown agree that a 20 year SOIRA order is required and a s. 161 order must follow. However, the Crown seeks 20 years and the Defence asks for a 10 year s. 161 order.
29The Defence submits that 12 to 15 months incarceration could meet all of the sentencing principles. Given the Supreme Court's obiter in R. v. Morrison and the fact that two Supreme Court Justices would have struck down the mandatory minimum, Mr. Maini asks me to consider that 12 months jail may not be the starting point for this offence.
30However, Mr. Maini has not brought a s. 12 constitutional challenge.
Aggravating Factors
The defendant's description of explicit sexual acts he wished to engage in with who he believed to be a 13 year old girl.
His attendance to ultimately have sexual relations with a person he believed to be an underage girl.
Mr. McNaughton's persistent grooming.
He attempted to build trust with "Maddie" in the most insidious way, by enlisting her own mother to help him in this regard. He was prepared to destroy not only the trust that a child would have with strangers but with their own mother.
He also expressed an interest in the younger sibling who he believed to be aged 11.
The Mitigating Factors
The defendant plead guilty at an early opportunity. It was conceded by the Crown that defence counsel was required to take some time to review disclosure and the unsealed search warrant.
He has no criminal record.
He willingly participated in a risk assessment and was found to be a low risk to re-offend.
Mr. McNaughton has a good history of employment and has no substance abuse issues.
Mr. McNaughton's wife continues to support him and has committed to help him seek therapy.
He is remorseful.
The Appropriate Sentence
31It does not need to be said that child luring is a serious offence. Courts have routinely recognized that the offence is deserving of significant periods of incarceration. The offence of luring leads to the very real risk of innocent children being sexual assaulted and scarred for life. Children are frequent users of the internet and must be safeguarded against online predators.
32The goal of protecting vulnerable children must be at the forefront. Denunciation, deterrence and separation from society are the predominant objectives when sentencing offenders for the offence of online child luring. Still, I must also consider the prospects for rehabilitation of the offender.
The Range of Sentences
33The range of sentence for this offence had been set out in R. v. Jarvis as being generally between 12 months and 2 years. A sentence at the upper end of this range would be required where the offence is committed along with possession of child pornography or a record for other child sexual offences.
34However, the Court of Appeal in R. v. Woodward determined that the range required revision given the amendments to the Criminal Code in which Parliament substantially increased the maximum punishment from 5 years to 10 years. Moldaver J.A, as he then was, foresaw the possibility of sentences beyond this range in the following circumstance:
…. 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.
35Parliament again, increased the maximum punishment for this offence where the Crown proceeds by indictment to 14 years imprisonment.
36Mr. Woodward not only committed the offence of luring a child under the age of 14, he was also convicted of sexual assault and other related offences for engaging in sexual intercourse with the 12 year old girl her lured online. Even more tragically, he offered the victim money in exchange for sex at a time when her family was in financial need. His appeal against a global sentence of 6½ years imprisonment was dismissed.
37In 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." [Emphasis added]
38The facts in Gucciardi are not dissimilar to the facts before me. Mr. Gucciardi posted an add 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. While the accused underwent extensive sex offender therapy there was no risk assessment provided.
The Supreme Court's Decision in R. v. Morrison
39The Supreme Court chose not to decide on the s. 12 Charter challenge to the mandatory minimum after finding that s. 172.1(3) presumption infringes s. 11(d) of the Charter. The Court was of the view that it would be unwise to decide on the issue of whether the section runs afoul of s. 12 of the Charter given the courts below proceeded on the mistaken understanding that Mr. Morrison could be convicted on the basis of mere negligence, that is, his failure to take reasonable steps. The lower court's conclusion with respect to s. 12 rested, in part, on this mistaken understanding; the belief that s. 172.1(4) can be read to allow for conviction absent proof of subjective mens rea.
40The Court laid out the possible arguments that could be made for and against striking down the mandatory minimum. The Court set out those features that suggest the mandatory minimum under s. 172.1(2)(a) are constitutionally suspect which included, that it "casts its net over a wide range of potential conduct"; that Parliament has acknowledged that the offence can occur in circumstances where considerably lower sentences are appropriate by creating a hybrid offence. However, the Court went on to set out considerations that may militate in favour of a finding that the one-year minimum under s. 172.1(2)(a) does not infringe s. 12 of the Charter.
41Mr. Maini has chosen not to bring a constitutional challenge; as a result, the mandatory minimum while "constitutionally suspect" remains in place.
Analysis
42I have considered s. 718 and considered the fundamental purposes of sentencing that are set out in sections 718(a) through (f) and 718.2.
43A 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, s. 718.1. 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.
44A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.
45An offender's rehabilitation is always an important objective.
46While the Court of Appeal's decision in R. v. Morrison will have to be revisited with respect to striking down the mandatory minimum in s. 171.1(2)(a), the Court provided the following guidance:
… the range is that the parameters established in Jarvis are flexible and dependent on the particular facts of the case. The range of seriousness of offences committed under s. 172.1 is evidently very wide.
Cases Provided by Defence and Crown
47I have reviewed the case law submitted by both the Defence and the Crown. I will review the following cases that have particular relevance.
48In R. v. Barnes, Stribopoulos J. imposed a 12 month jail sentence on the defendant for making sexually explicit material to a minor pursuant to s. 171.1(1)(b). However, Mr. Barnes also acknowledged responsibility for offences of luring and possession of child pornography. Aspects of the facts with respect to the luring alone are much more aggravating than the case before me. Mr. Barnes sent several pictures of his erect penis to who he believed to be children. A meeting was arranged between Mr. Barnes and an undercover officer but Mr. Barnes failed to attend because he was tired. He was arrested after he referred to the fact that he intended to meet with an 11 year old girl. Upon arrest he was found to be in possession of 10 images of child pornography. Subsequent to his charges, he participated in sex offender therapy. However, a risk assessment was not done. Similar to the case at bar, the offence continued over a protracted period. Mr. Barnes also did not appear to have a lot of insight into his diagnosis.
49In R. v. A.H., the appellant had messaged his daughter's friend, S.K., for approximately three months. He sent pictures of his penis and requested that she send pictures back. He also sent the complainant a picture of a man and a woman in a sexual position. S.K. was 15 years old when the messages began. In addition, he sent explicit sexual messages to her advising that he wanted to engage in oral sex and eventually 'take her virginity'. The appellant knew S.K.'s father from the mosque. The conviction appeal was dismissed, and the Court upheld the sentence of 15 months imposed by the trial judge. Feldman J.A. underlined, once again, that deterrence and denunciation are paramount sentencing factors for these types of offences.
50In R. v. Harris, the appellant was charged with internet luring with a person he believed to be under the age of 16 and to transmitting sexually explicit material to a person under the age of 16 years. The latter count was conditionally stayed. Mr. Harris was sentenced to 18 months. 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.
51After dismissing Mr. Harris' conviction appeal, the sentence was varied to set aside the victim surcharge. At the time of the appeal the appellant had served the custodial portion of his sentence. A request to shorten the 3 year probation order was denied but the court did not comment on the fitness of the custodial portion of the sentence.
52Harris is similar in some respects, however, it can be distinguished as Mr. McNaughton did not send the undercover officer any pictures or sexually explicit material. Had Mr. Harris plead guilty and shown remorse, he would have been entitled to further mitigation and his sentence would likely have been reduced below 18 months.
53In the more recent cases of Barnes, Gucciardi, Duplessis and Haniffa, 12 month jail sentences were imposed where the offence of luring was committed with an undercover officer. Haniffa, Duplessis and Harris were all convicted after a trial.
54Mr. Haniffa was convicted after a trial of communicating via telecommunication to facilitate s. 286.1(2) offence (child prostitution) – s. 172.1(2), and communicating for the purpose of obtaining the sexual services of a person under the age of 18 years, contrary to s. 286.1(2). He received a global sentence of 12 months.
The Sentence
55The most aggravating features of this case is that the defendant embarked on a systematic process of grooming a child for sexual activity and that he followed through with a plan to meet up with a child to engage in sexual relations with her. The Court of Appeal in Morrison has stated that this can merit a substantial sentence of imprisonment, "in some cases, well above the mandatory minimum".
56Mr. McNaughton thankfully did not communicate with a real child, had this been the case he would, in the circumstances, be deserving of a lengthier sentence.
57Mr. McNaughton, at the present time, lacks insight into his diagnosis. I would not say this is aggravating factor but it is an absence of an important mitigating factor. On the other hand, he is open to receiving help and voluntarily underwent a court ordered risk assessment. He recognizes that his behaviour is wrong and wants therapy. Unfortunately, because of the loss of his job, he was not able to afford to continue with counselling prior to the sentencing hearing. He has lived a pro-social life for most of his adult years and has the support of his wife.
58After carefully considering the circumstances of the offence and of Mr. McNaughton, in light of the relevant sentencing principles and objectives, I have concluded that a sentence of 15 months imprisonment is the appropriate sentence for Mr. McNaughton for the offence of child luring contrary to s. 172.1(1)(b).
Conditions of Probation and Orders
59Mr. McNaughton, at 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.
60This is a primary designated offence, therefore, pursuant to s. 487.051 of the Criminal Code, I am required to order that a sample of your blood be taken for the purposes of including your DNA profile in the National DNA Databank. As a result, an order will issue to that effect.
61Further, pursuant to s. 490.013(2)(b) of the Criminal Code, I am required to order that you comply with the Sex Offender Information Registration Act for a period of 20 years.
62Given the circumstance of the offence, along with Mr. McNaughton's diagnosis, I will make the following orders pursuant to my authority under s. 161(1) of the Criminal Code.
63Following your release from custody, for a period of 10 years, you will be prohibited from using a "computer system" within the meaning of s. 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.
64Further, you will be prohibited from using the Internet, or any similar communication service, to access any content that violates the law or to directly or indirectly access any social media sites, social network, Internet discussion forum or chatroom, or maintain a personal profile on any such service (for example; Facebook, Twitter, Tinder, Instagram or any equivalent or similar service).
65I am recommending that Mr. McNaughton serve his sentence at OCI and, until his transfer is effected, that he serve his sentence in the Niagara Region.
Released: October 11, 2019
Signed: Justice A. R. Mackay