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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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 —
N.M.G.
Before: Justice B.M. Green
Reasons for Judgment on Sentencing
Counsel:
- Mr. N. Young as counsel for the Crown
- Ms. M. McCormick and Ms. Griffiths as counsel for the defendant
Judgment
A. Introduction
1Mr. N.M.G. appeared in the guilty plea court represented by counsel and entered pleas of guilty to a total of eleven offences involving surreptitiously recording a minor, child luring, making sexually explicit material available to minors and possession of child pornography with respect to multiple victims. Defence counsel requested an adjournment for a number of months for Mr. N.M.G. to participate in an assessment.
2On the return date, I was advised that part of the discussions that lead to this plea was an agreement between counsel and the crown that the crown would advocate for a sentence in the range of three to five years. However, counsel and the crown expressed concern that the overall totality of the sentence would exceed this range considering that there should be consecutive sentences with respect to each of the victims. As a result, counsel submitted that the initial plea to the eleven counts was not fully informed. The crown and counsel invited me to strike some of the pleas of guilty and the crown chose to proceed on only four counts that were representative of the overall facts.
3While the crown proceeded with four counts, it was clearly agreed on the record that I will consider all of the admitted facts when determining the appropriate sentence. (R. v. Garcia and Silva, [1970] 1 O.R. 821 (Ont.C.A.)).
4In total, Mr. N.M.G. will be sentenced for victimizing ten different children and teenagers, who ranged in age from eleven to sixteen years old, over a period of nine months, even though he was only found guilty of the following offences:
Count 4: possession of child pornography contrary to section 163.1 of the Criminal Code
Count 5: surreptitiously making a visual recording of a person while exposing the genital and anal region of J.A. contrary to section 162 of the Criminal Code
Count 9: make available sexually explicit material to a person under the age of 18 years old contrary to section 171.1 of the Criminal Code
Count 26: communicate with a person who he believed to be under the age of 16 for the purpose of facilitating an offence under 163.1 contrary to section 172.1(2) of the Criminal Code
5The crown elected to proceed by Indictment. He proposed a range of sentence from 3 to 5 years in the penitentiary to be followed by a 20 year 161 order, a lifetime SOIRA order, DNA and a 10 year section 109 weapons prohibition. Defence counsel submitted that the sentence should be two years less a day, 3 years of probation as well as the ancillary orders. Counsel requested a shorter 161 order considering Mr. N.M.G.'s young age and his life challenges.
6This was a very difficult sentencing. The offences are very serious with many aggravating features. However, the offender is a youthful, immature first offender with cognitive and intellectual challenges. He entered pleas of guilty at the first available opportunity and he participated in a psychological assessment. He has significant potential for rehabilitation. A fulsome review of the aggravating and mitigating facts, the various sentencing principles and comparable sentencing precedents is essential to explain my decision.
B. Facts
i. The circumstances of the offence
7Defence counsel and the crown filed an agreed statement of facts as an exhibit. Mr. N.M.G. admitted that:
Between December 2017 and March 2018, the accused began communicating online with young boys. He was posing as a 13 to 14-year-old bisexual girl, using the Instagram name of "bailey_watson44". The conversations were discovered by the mother of one of the boys (13-year-old J.G.) when she became aware that her son had made plans to meet with this person at the Legends Centre in Oshawa, along with his friends J.E. and J.S. The boys were the ones who had initially proposed the meeting; the accused had agreed.
13-year-old J.E. gave a statement indicating that he had had extensive conversations with the Bailey Watson account over a few months, using social media. J.E. told police they mostly played truth or dare; that the conversations were sexualized; and that they were initiated by the Bailey person. He advised he did not send any images, but that Bailey had sent him two. He described them as photos of a female's private area covered by see-through underwear. He said that he and J.S. had agreed to meet Bailey at the Legends Center in Oshawa for no specific reason other than being able to see each other in person. Police recovered the Snapchat exchanges from J.'s phone.
13-year-old J.S. was introduced to Bailey online by Mr. J.E. He said he never sent any images but did receive one image which was believed to be similar to the one sent to J.E. J.S. said that the conversations were sexual at times, but he could not recall the exact content.
The online exchanges with J.S. and J.E. could not be recovered by police, as they had been deleted by the time of reporting.
Police obtained Production Orders for the Instagram account "bailey_watson44" as well as Internet provider Rural Wave. Both returned to the residence of the accused.
Following his arrest, the accused gave a police statement indicating that he had been speaking to 5 to 10 children from Oshawa, Woodville and Lindsay over a span of time. He admitted to having received nude images of some of them, but he said he never shared them with anyone.
He had three accounts: jessebabe28, Bailey Watson and Hailey Johnson. He used Instagram, Kik and Snapchat for small talk. He said he had met a few of the kids at his cousin's house but none of them knew he was "Bailey". He said he had a Dropbox account where he stored the photos received. He told police that they would find a photo of his 13-year-old cousin J.A. in his phone, specifically, a photo of J.A.'s exposed buttocks and genitals when he was there for a sleepover and J.A. had fallen asleep.
A subsequent forensic search of the accused's Drop Box account revealed a series of folders which were titled as the names of the accused's various under-age victims. Within these folders were conversations between the accused and his victims during which he had convinced them to take nude photographs and videos of themselves performing various sexual acts. The conversations occurred between January and August 2018. The photographs and videos were stored within the Drop Box account.
The following is a general description of the images and/or videos found in the relevant folders:
J.A.
Four images in which the accused appears to have pulled down his sleeping cousin's pants in order to expose his buttocks and/or penis and scrotum.
A.M.
Ms. A.M. was 11 and 12 years old at the time of these incidents. The accused had engaged Ms. M. in numerous sex-related conversations via Instagram. During these conversations he convinced her to send him an image of her vagina. As well, he convinced her to create and send him 10 videos, ranging in length from 12 to 33 seconds, during which she was penetrating herself vaginally or with a dildo.
P.T.
Mr. P.T. was 16 years old at the time of these incidents. The accused posed as a young girl and convinced Mr. P.T. to create and send various images and videos, including 3 images of his penis and 3 videos of himself masturbating. The videos ranged in length from 21 to 34 seconds long.
K.G.
Mr. K.G. was 12 years old at the time of these incidents. The accused convinced Mr. G. to send him 8 nude photos of his chest and penis (including photos with ejaculate), and to create and send 6 videos of himself masturbating. These videos ranged in length from 3 to 14 seconds.
C.B.
Mr. C.B. was 15 years old at the time of these incidents. He sent 22 photos of himself to the accused in which he was either clad only in underwear, or in which his penis was exposed, in some cases with ejaculate on it. He also sent and created a total of 9 videos of himself in direct response to requests from the accused, including videos of himself masturbating. The videos ranged in length from 6 to 25 seconds.
B.H.
Mr. B.H. was 13 years old at the time of these incidents. At the accused's request, Mr. B.H. sent him 30 images of himself, mostly with his penis erect and exposed, in addition to two photos of his younger brother. One of those photos depicted Mr. B.H.'s younger brother's face, onto whose mouth someone had drawn a penis.
Also found were 17 videos created at the accused's request and sent to him by Mr. B.H. The videos ranged in length from 4 to 26 seconds. Most showed Mr. B.H. masturbating, some to the point of ejaculation. There were two videos of Mr. H.'s younger brother, including one of him sleeping, with a white-lined drawing of a penis being moved back and forth towards his mouth.
A representative sample of the above images, videos and conversations were filed by the crown and reviewed in chambers. I will have more to say about this aspect of the proceedings later in my reasons for judgement.
8What was not clear from the agreed statement of facts but came out during the sentencing hearing was the relationship between J.A. and Mr. N.M.G. Their mothers are sisters. J.A. is six years younger than Mr. N.M.G. and they are first cousins. J.A. trusted Mr. N.M.G. and introduced him to his friends. Mr. N.M.G. breached this relationship of trust with his cousin by touching him without his consent or knowledge and violating his privacy and sexual integrity while he was vulnerable and asleep in the security of his own home.
9Mr. N.M.G. was at J.A.'s home as a guest for a sleep over. In the recordings of J.A., Mr. N.M.G. physically touched J.A. while he was sleeping in order to facilitate taking very intimate images of him. Mr. N.M.G. pulled down J.A.'s track pants and spread apart the cheeks of his buttocks. He took zoomed in images of J.A.'s penis and genital region. With respect to J.A., Mr. N.M.G. sexual interfered with him, produced child exploitation material of him and possessed this child exploitation material for his personal sexual gratification.
10The violation of J.A.'s trust was exacerbated by the manner in which Mr. N.M.G. solicited some of the other victims. Mr. N.M.G. used his relationship with his cousin to prey on his cousin's friends. He used the identity of a young female to target J.A.'s friends as victims for obscene communications and the exchange of sexually exploitive images and recordings.
11The messages exchanged between Mr. N.M.G. and the various victims were offensive and graphic and included references to anal rape and bondage. He invited them to perform sexual acts on themselves to the point of ejaculation. He requested that A.M., an 11 to 12-year-old girl, put her fingers in her vagina and then put them in her mouth and record it.
12All of these offences involved actual victims and demonstrated sophistication and forethought. Mr. N.M.G. secured the images of pre-teen and teen boys and girls and created fake identities with their images. He used these images and very graphic conversations to lure boys and a young bi-sexual girl into sexualized conversations with him and exposing themselves. This was not an isolated occurrence. Rather, over a period of 9 months, Mr. N.M.G. victimized 10 children (J.G., J.E., J.S., J.A., A.M., P.T., K.G., C.B., B.H. and B.H.'s younger brother). Images were recovered with respect to six of the victims.
13The communications between Mr. N.M.G. escalated to an agreement to meet at a local community center. The victims thought that they were about to meet the girl that they had been communicating with online. It was only by happenstance that a vigilant parent discovered this plan to meet up and reported this matter to the police. Mr. N.M.G.'s conduct was stopped by his arrest.
14In addition to the agreed statement of facts, Mr. N.M.G. participated in an in-depth psychological analysis and psychosexual risk assessment with a clinical and forensic psychologist, Dr. Monik Kalia. Dr. Kalia interviewed Mr. N.M.G. and he provided much more information about the offences and the history of his predatory behavior:
Pages 7 and 8: …he also made an Instagram account posing himself as a 17-year-old female named 'Bailey'. He said it started as a prank on his friends but it was largely unsuccessful. He used the same account to message his 11-year-old male cousin, J.A. He also sent messages to 4 of J.A.'s male friends. At that time, he was posing as a 14-year-old (Bailey) rather than 17-year-old as earlier. J.A.'s friends were between the age of 11 and 15. He would ask them if they had started showing other signs of puberty such as growing pubic hair. He said he wanted to know if he developed at the same rate as other males. He also sent a message to a female whom he found through his Instagram contacts. On Instagram the female presented herself as 'bicurious' and he asked her to send him an image of her vagina. He also asked her to send videos. (Counsel corrected this part and indicated that while he viewed these images, he did not ask for them)
In addition to two separate accounts in the name of 'Bailey', Mr. M.G. made four other accounts on the social media within a span of 1.5 years. He made an Instagram account in the name of 11-year-old male Daniel. He used this account for one month. He made another account (jessebabe28) on Kik as well as Snapchat. On the jessebabe28 account he posed himself as a 15-year-old 'bicurious' female. He used this account for 3 months. He also created a separate account (haileyjohnson) on Instagram posing himself as a 15-year-old heterosexual female. He used this account for approximately 3 months. Mr. M.G. said that on his Bailey account one of the 13-year-old males wanted to meet him. They agreed to meet at the Legends Centre at Oshawa. He indicated that he had no intention of actually meeting with anybody as planned and he did not go to meet the 13-year-old male. He was arrested on August 23, 2018.
Mr. M.G. said that he saved the images and videos in the dropbox which were sent to him by the victims. He created folders in the names of the victims. He would sometimes go back to see these videos and images. He found these images and videos as arousing and would sometimes masturbate to them.
15Mr. N.M.G. employed different tactics using various images and identities of a real young boy or real girls/teens as "bait" to achieve the most success when luring his victims into intimate exchanges. When he was not successful with a 17-year-old identity, he adopted much younger identities and images to lure victims. In addition to discussing how he lured child victims and preyed on his cousin's friends, he also discussed why he violated his cousin (at page 10 of the report):
Mr. M.G. said he always treated J. as his younger brother and protected him. Around the age of 15, he felt sexual thoughts for his cousin. He always tried to suppress it as he believed he should protect his younger cousin. He acknowledged that he took pictures of J. approximately five months before his arrest. He said he was visiting J.'s place in Oshawa and took the pictures when J. was sleeping. He noted that he felt he was anxious and fearful when he engaged in this behaviour. He has never touched any other child other than J. and emphatically denied that he would ever hurt a minor. "I will never touch again. I don't want to hurt any child or anybody again", he stated.
16While Mr. N.M.G. was fully cooperative, apologetic and expressed remorse, I found that he also engaged in some disconcerting minimization when he provided excuses or justifications for his deviant behavior. He told his mother and Dr. Kalia that the communications with the boys began as a "prank". He knew that this was not funny or appropriate. He stated that he was "curious" to see whether other teens were developing the same way. Maybe he was curious but, developmental curiosity is not consistent with the nature of his lurid conversations with these children and teens, the acts that he encouraged them to perform or sexually pleasuring himself when he viewed them.
17Mr. N.M.G. advised that he was confused about his own sexuality and he was not able to talk to anyone about this issue. There is however, a significant difference between his issues around questioning his sexuality and exhibiting a paraphilia and an unacceptable attraction to younger teens and children. He was very adept at exploring the Internet and he could have visited sites that addressed his questions about sexuality if he couldn't speak to anyone despite a very supportive family. These offences were not a reflection of his confusion about an attraction to men or women. These offences were about acting on an obviously inappropriate sexual attraction to children and younger teens.
ii. Victim impact
18Although the crown initially indicated that there were no victim impact statements, it became apparent during the sentencing hearing that the victims and their parents had not been given the opportunity to provide this essential and required information. A mother of one of the victims was actually sitting in the courtroom with a prepared victim impact statement. The matter had to be stood down for the crown to at least try and contact each of the parents.
19The most egregious breach of trust and the most serious offences related to J.A. However, since J.A. was recorded while he was sleeping, he has no idea that his cousin violated his trust and faith in him. J.A. has not been informed by his mother about these offences. He does not know that Mr. N.M.G. used him as a means to find other victims by preying on his friends. Understandably, J.A.'s mother wants to shield him from this knowledge. Nevertheless, J.A.'s mother, Mr. N.M.G.'s mother's sister, could have spoken about the impact on her family or concern for her son should he ever discover the truth. Instead, she expressed frustration because "the biggest impact is on the family not being together at Christmas time and not being together as family". She also indicated that she wants Mr. N.M.G. to get help "so that they can start working on being a family again."
20I am concerned that, without knowing about this betrayal and predatory conduct, J.A. will be exposed to Mr. N.M.G. in the future at family functions. He is truly an innocent and unwitting victim. I have an obligation to protect J.A. from any future sexual abuse or victimization at the hands of his cousin, who is admittedly inappropriately sexually attracted to him. As a result, as part of the 161 order, Mr. N.M.G. will be prevented from attending within a radius of anywhere J.A. is known to be unless he is directly supervised by an adult over the age of 25 years at all times. I understand the desire to ensure that J.A. does not know that he was a victim, but J.A. was not given a voice in these proceedings. Nevertheless, the depth of this breach of trust is obvious as well as the potential for lasting psychological and emotional harm should J.A. ever discover the truth.
21A few of the parents of the other victims, who are friends with J.A., have also chosen not to tell their children who victimized them out of fear that it may cause added stress or trauma or impact the friendships between the boys. A consistent theme with the older boys was that they were upset and embarrassed at first. It has impacted how they access social media. However, they did not indicate any lasting effect and they did not want to file formal victim impact statements. J.G.'s parents have also kept Mr. N.M.G.'s identity secret because he is "known to the family". They are concerned that knowing his identity "would impact their son more". One parent expressed hope that Mr. N.M.G. will get help so that he never does this again to any other "young males".
22The parents of K.G., who was the youngest male victim, were present in the courtroom during the sentencing submissions. His mother had prepared a victim impact statement which was filed as an exhibit. K.G was only 12 years old at the time of his victimization. These offences have had a significant detrimental impact on this boy and his family. His mother taught him about the dangers of online predators, and he didn't even have a cell phone at the time. She was shocked that her son was preyed on by Mr. N.M.G. The following are some excerpts from the victim impact statement:
"In a very short time, he became withdrawn, angry, deplorably sad at times apathetic, irresponsible, uncaring and constantly lying and his school work suffered tremendously, his marks falling well below what he had been achieving throughout the entire school year. Where months before he would talk about his day's events, now he would rarely utter a word and stopped advocating for himself. He started allowing himself to be the target of bullying at school…"
"As soon as he was told that a Durham Police detective wanted to speak to us about a case he was working on his (K.G.'s) demeanor went from the sullen apathetic boy to a terrified closed little boy."
"Over the next few days, he would barely speak and had to miss school because he wasn't capable of going in to face his peers. He wouldn't even socialize with his best friends and seemed to be too scared or embarrassed that any of them might find out what had happened. As he had been for the previous few months, he was still heavily withdrawn, but now rather than in seeming anger, he was withdrawn in embarrassment and fear. He stopped joining in activities both in school and outside as well."
"Where once I had a fun loving positive child of 11 years I now had an angry, terrified and sullen child of 12 who in a few short months had the last vestiges of childhood innocence stolen from him with a simple click of a computer mouse."
"He's grown terrified of the online social media world."
"As a mom I feel like I've failed my son. Despite all efforts to protect him and teach him, someone has impacted the well being of my son forever. Now I find that I'm increasingly wary of each new person that walks into his life."
"…and now we try each week to pick up another piece of the shattered puzzle in hopes that we can complete the picture that was my happy little boy, but now that picture will be reluctantly viewed under a cloud of fear and shame hoping that the pictures that are floating on line will never be seen again."
23A.M. was the only identified female victim and she was also between eleven and twelve years old at the time of the offences. Her mother related that:
- "This has taken away all of her confidence. She is withdrawn. Has significant trust issues. Mother worried about the long term impact given this stage of the child's development. Affected her grades "big time". Used to be a A-B student. Now is a C student. Originally, they thought she would get over this. However, they are struggling to deal with this and have signed up for counselling to assist them."
24The penalty imposed must be reflective of the destructive impact of Mr. N.M.G.'s crimes on the lives of innocent children and the devastation that he alone is responsible for causing to them and their parents.
iii. The aggravating factors
25The Supreme Court explained in R. v. Suter, 2018 SCC 34, [2018] S.C.J. No. 34 at para. 27 that:
An offender's level of moral blameworthiness will vary significantly depending on the aggravating and mitigating factors in any given case. In unique cases, mitigating factors, collateral consequences, or other attenuating circumstances relating to the offence or offender may warrant a sentence that falls below this broad range. By the same token, the aggravating features in a particular case may warrant the imposition of a sentence that exceeds this broad range. As long as the sentence meets the sentencing principles and objectives codified in ss. 718 to 718.2 of the Criminal Code, and is proportionate to the gravity of the offence and the level of moral blameworthiness of the offender, it will be a fit sentence.
26To arrive at a just sanction that appropriately reflects the predominant sentencing principles, it is essential to consider the gravity of these offences and the level of moral blameworthiness of this particular offender.
27In summary, the aggravating facts are as follows:
Mr. N.M.G. committed physical acts of sexual violence when he touched his cousin to uncover his genitals and spread his buttocks while he slept and violated him in the security of his own home. He personally produced child exploitation recordings of his cousin who was six years younger than him;
This conduct was an extreme breach of trust motivated by sexual gratification that was exacerbated by using his friendship with his cousin as a hunting ground for other young victims;
He was well aware that he was communicating with real underage victims because they sent him their images and recordings and he knew a number of them. He was not concerned about the consequences to the victims. Mr. N.M.G.'s callous conduct was motivated by sexual gratification that was satisfied through the anonymity of a computer screen;
He used sophisticated schemes of representing himself to be different child and teen identities and he used exploitative images that he found online to take advantage of pre-teen and teenage boys as well as a pre-teen girl;
He lured multiple children into performing sexual acts on themselves. He obtained exploitive, intimate images/recording of these acts. He saved these recordings/images and created his own organized personal collection of child exploitation materials;
This conduct continued over a span of 9 months and involved 10 victims in multiple disturbing sexualized conversations and recordings that invited acts of sexual degradation; and
These crimes have had a lasting, substantial, detrimental impact on the emotional and psychological well-being of the two youngest victims.
28There is an absence of one substantially aggravating factor that is important for all of the victims to be aware of, given the nature of the offences. Mr. N.M.G. did not share or make available any of his collection of exploitation materials with any other person or online. These children and teens will at least have the comfort of knowing that there is no lasting record of their victimization.
iv. Circumstances of the offender and the mitigating factors
29Despite the multitude of aggravating factors, there are a number of significantly mitigating factors. In summary, I note the following:
Mr. N.M.G. has no prior record;
He was an immature young adult at the time of these offences, which commenced when he was 18 years old and continued on until a couple months after his 19th birthday. While it does not mitigate his moral culpability, I will consider that he is struggling with cognitive and intellectual disabilities and anxiety;
He was very cooperative with the police and he provided a full statement;
He plead guilty at an early opportunity which spared all of these victims the embarrassment of having to attend a trial and have these messages and images exposed in a public forum. None of the victims will have to experience the potentially traumatizing impact of going through a trial process. J.A. doesn't even know he was victimized because of the plea. This would have been a lengthy trial, so the plea also saved on scarce court resources;
He participated in a full psychological assessment. He is willing to get help and he has significant potential for rehabilitation if he invests in appropriate counseling;
He recognizes that his conduct was morally and legally wrong. He has expressed genuine remorse for the harm done to the victims, their families and his family; and
He has a very supportive family who have attended all of his appearances with him. Once he is released from custody, he will continue to enjoy their support and they are willing to ensure that he gets the help that he needs to prevent future offending behaviour.
30Mr. N.M.G.'s intellectual and cognitive delays are unique personal characteristics factor that I will consider, like any other individual fact. I do not accept however, that his disabilities diminish his legal or moral responsibility for these offences.
v. Should Mr. N.M.G.'s intellectual and cognitive disabilities diminish his culpability or responsibility
31Defence counsel provided written submissions and a book of authorities to support her position that Mr. N.M.G.'s cognitive challenges and intellectual delays should mitigate the sentence or justify a sentence significantly lower than the accepted range because Mr. N.M.G. is not as morally culpable as an offender without these disabilities. In addition, general deterrence and denunciation should be given less weight in these circumstances.
32There is no dispute that a Court may give less weight to the principles of denunciation and deterrence if an offender's unique personal disabilities diminish his or her responsibility or moral culpability for the offences, contributed to or linked to the commission of the offences and/or impact an offender's understanding or appreciation of the consequences of the offences. However, a disability is not automatically a mitigating factor.
33The Ontario Court of Appeal in R. v. Plein, 2018 ONCA 748, [2018] O.J. No. 4688 cited with approval a decision from the Manitoba Court of Appeal that addressed these types of sentencing considerations. In R. v. Okemow, 2017 MBCA 59, [2017] M.J. No 173 at paras 72 and 73 (Man.C.A.), the Court explained that:
A reduction of moral blameworthiness for the purposes of sentencing, either for an adult or a young person, due to a recognized and properly diagnosed mental illness or other condition where the functioning of the human mind is impaired, is a "fact-specific" case-by-case determination as opposed to an automatic rule that the mental illness or cognitive limitation necessarily impacted the commission of the offence in question (see R v Roulette, 2015 MBCA 102 at para 7; R v Friesen, 2016 MBCA 50 at para 23; R v Manitowabi, 2014 ONCA 301 at paras 55-57; R v Ellis, 2013 ONCA 739 at paras 107-127; R v Ramsay, 2012 ABCA 257 at paras 33-39; R v Branton, 2013 NLCA 61 at para 35; and R v M.J.H., 2004 SKCA 171 at para 29).
Ascertaining the moral blameworthiness of an offender with a mental illness or some other form of cognitive limitation is a tactful and considerate exercise. Sentencing judges must avoid committing one of two obvious errors in principle. The first is being indifferent to the question of whether an offender's mental circumstances affected his or her degree of responsibility. The other error in principle is the reverse situation, namely, assuming an offender's moral blameworthiness for an offence is reduced automatically because he or she has a mental illness or other cognitive limitation. It is suggested that, when sentencing offenders with a mental illness or some other form of cognitive limitation, such as a form of FASD, sentencing judges keep separate and properly assess the following questions:
Is there cogent evidence that the offender suffers from a recognized mental illness or some other cognitive limitation?
Is there evidence as to the nature and severity of the offender's mental circumstances such that an informed decision can be made as to the relationship, if any, between those circumstances and the criminal conduct?
Assuming the record is adequate, the sentencing judge must decide the offender's degree of responsibility for the offence taking into account whether and, if so, to what degree his or her mental illness or cognitive limitation played a role in the criminal conduct.
34More recently, in R. v. Ghadghoni, 2020 ONCA 24, [2020] O.J. No. 169 at para 45 (Ont.C.A.), the Court of Appeal reiterated that:
Cognitive impairment, where it affects behaviour resulting in criminal liability, can attenuate the moral blameworthiness attached to that behaviour. It can also justify less emphasis on the principles of specific and general deterrence.
35Defence counsel submitted that Mr. N.M.G.'s intellectual and cognitive disabilities are a mitigating factor because they impacted his moral responsibility for these offences. However, there is no evidence to support this submission. Unlike many of the cases relied on by counsel, Mr. N.M.G.'s disabilities are not severe or extreme. I accept Dr. Kalia's findings that Mr. N.M.G. struggles with mild to moderate cognitive deficiencies and intellectual disabilities. His higher executive functions are mildly impaired. He showed some difficulties with concept formation and cognitive flexibility. He has generalized cognitive inefficiency in a number of areas in the mild to moderately impaired range. He struggles with anxiety and self-esteem issues.
36Despite Mr. N.M.G.'s challenges however, he has been able to function quite well throughout his life. For example, it was noted in the expert's report that:
p. 3: "He reportedly met his developmental milestones at the age appropriate intervals."
p. 10: "Mr. M.G. said he has approximately 10 friends whom he has known since kindergarten. He considers four of them as his 'closer' friends as they have common interests and hobbies. He is generally the designated driver (DD) for his friends at parties." Presumably, he passed the driver's test and obtained a driver's license.
p. 6: "He was never formally diagnosed with any learning disability and he never attended any special education classes. He was never diagnosed with ADHD or ADD." (in elementary school).
p. 6: "He left high school and enrolled in the adult education classes which consisted of smaller classrooms and shorter semesters. He did better in the adult learning environment as he received more attention from the teacher. He completed high school diploma in 2017 from Fenelon Falls Adult School."
p. 13: His mother explained that "he then moved to adult education school where he did amazingly. His grades improved as he had smaller classes with fewer courses at a time. He enjoyed classes with more mature students and managed to graduate."
p. 7: "he was hired as a fulfilment associate at the Walmart. He has been working part-time at the Walmart since November 2017. His current position is Store Standards Associate. He said he enjoys his work and has good relationship with his colleagues."
p. 7: "he has plans to return to college to complete a trade program such as automotive or electrician."
p. 14: His mother indicated that "there is no history of any head or brain injury. There is no history of mental health issues. N. is healthy and does not take any medications. N. does not have any problem with managing his temper."
37Mr. N.M.G has had the benefit of a positive upbringing. He comes from a close knit supportive family. He enjoys a very good relationship with his step-father and his mother. He has never been exposed to either domestic violence or corporal punishment. He made good life long friends in elementary school and he had constructive relationships with his teachers. While Mr. N.M.G. has intellectual challenges and disabilities, he successfully completed a high school education, he interacts well with adults, he got a driver's licence and he has a job. More importantly, despite some bullying at school, Mr. N.M.G. has shared age appropriate positive friendships with peers throughout his life since elementary school.
38Defence counsel suggested that, because Mr. N.M.G. was a young man at the time of these offences and he was cognitively even younger, his attraction to younger boys and girls is "linked" to his offending behaviour. There is no such reference or conclusion in the expert's report. Counsel also invited the court to speculate that it was "highly possible" that Mr. N.M.G. "developed maladaptive coping mechanisms surrounding his attraction" to adolescents. These submissions also had no foundation in the evidence or the expert's report. These suggestions reflect counsel's personal thoughts and conjecture. I cannot and will not give these submissions any weight since counsel is neither a witness nor an expert.
39There was no evidence that the commission of these offences was attributable to or linked to Mr. N.M.G.'s disabilities or delays. What was clearly stated in the expert's report and by Mr. N.M.G is that he is inappropriately sexually attracted to younger girls and boys. His cousin and some of the victims were much younger than him at the time of these offences. The expert concluded that Mr. N.M.G. has "a problem with pedohebephilia of a bisexual nature". He acted on this deviant sexual attraction and victimized children and teens.
40Counsel also submitted that these offences were reflective of Mr. N.M.G.'s immaturity and were opportunistic as opposed to premeditated or sophisticated misconduct. The circumstances of these offences belied counsel's submissions of diminished moral culpability. Mr. N.M.G. used his relationship of trust, stealth and planning to obtain intimate images of his young cousin while he was vulnerable and asleep. He used trickery and manipulation to target his cousin's friends and sophistication by creating fake identities from online child exploitation images and sending provocative images to lure the victims into sexualized conversations and sharing their intimate images with him. He relied on particularly provocative and lurid language to entice these children into doing what he wanted them to do for his own sexual gratification.
41These crimes were not a reflection of Mr. N.M.G.'s immaturity or issues with impulsivity or delays. Quite the contrary. He planned and deliberated about how to lure the victims, adapted his "bait" identity to more successfully attract victims and he continued with this misconduct over a significant period of time with multiple children and teens. In these circumstances, Mr. N.M.G.'s disabilities do not mitigate his moral culpability or responsibility.
42It is apparent that Mr. N.M.G. is able to comprehend the causal link between the crimes he committed, and the harm done to the victims as well as the punishment. According to Dr. Kalia's report, Mr. N.M.G.'s father is a sex offender. He was convicted of sexual offences for possessing and making child pornography in relation to Mr. N.M.G.'s sister. At the age of 15 years old, prior to the commission of these offences, Mr. N.M.G. witnessed first hand the detrimental impact of child exploitation. Yet, he chose to victimize his own cousin.
43Mr. N.M.G. is acutely aware that his mother was the victim of workplace sexual harassment. As a result, she suffers with debilitating post traumatic stress disorder. Mr. N.M.G. appreciated the cause of her suffering and the effect of it.
44Finally, Mr. N.M.G. avidly watched adult pornography as a "masturbatory tool" from the ages of 15 to 17 but he stopped watching it at 17 because "he started becoming uncomfortable with viewing females being used as sexual objects in the videos" (p. 8). Despite this recognition, he chose to lure children and teens and treat them as sexual objects to fulfill his sexual needs.
45Mr. N.M.G. fully appreciated the connection between his sexually inappropriate conduct and the impact that it can have on the victims' psychological and emotional well-being. He told Dr. Kalia (at page 9 of the report):
He said that he feels very 'stupid' for his behaviour. On being asked to elaborate, he said that he impacted the victims and their families very negatively. He said these young people would struggle with trust issues, shame, confusion about sexuality and would feel used. He feels ashamed that he hurt his aunt and cousin also. He said his mother was very upset and disappointed.
46Mr. N.M.G. callously exploited these children/teens and deliberately victimized his cousin despite knowing that it was both morally and legally wrong. His personal experiences and awareness should have informed and deterred this aberrant behaviour, but he did it anyway because it was sexually gratifying for him.
47Mr. N.M.G. provided the court with a letter that he drafted that was articulate; he made appropriate and insightful comments about the seriousness of these offences and he expressed remorse for his misconduct. He clearly understands the connection between his misconduct and the consequences for the victims and for himself. Rehabilitation is very important but, specifically deterring him from ever making these choices again is also an essential and meaningful sentencing goal.
48Counsel submitted that general deterrence should be given less weight in these circumstances because the sentencing should be considered through the "lens of any other offenders with similar intellectual and cognitive disabilities. It would not be fair to use an offender with disabilities to make an example for others who will not be coming from similar backgrounds." I disagree. It would be unfair to give the predominant sentencing principles less weight because of being unduly influenced by sympathy as opposed to reason, and the proper application of the law.
49The goal of this sentencing is not to make an example of an intellectually impaired man. The objective of general deterrence and denunciation is to send a consistent and unwavering message that any predator lurking behind a computer screen, regardless of their backgrounds or personal circumstances, who is victimizing children, will face harsh penalties.
50Finally, counsel submitted that incarceration in the penitentiary would be unduly harsh for Mr. N.M.G.. There was no evidence presented during the sentencing hearing that the penalty requested by the crown would be disproportionality severe because of Mr. N.M.G.'s cognitive delays. I do not know what, if any, accommodations provincial or federal correctional facilities have for individuals with Mr. N.M.G.'s unique vulnerabilities. Mr. N.M.G. will present other challenges for correctional authorities. His mother is employed in a correctional facility. As a result, he will have to be housed separately from other inmates for his own safety.
51Counsel referred to R. v. M.J., [2016] O.J. No. 3177 (Ont.S.C.J.) in her written submissions. Justice Bird compared the treatment programs that would be available to the accused with a reformatory sentence and placement at St. Lawrence Valley as opposed to the negative impacts of a sentence in the penitentiary. However, in this case, defence counsel and the crown both referred to programs that are available for sex offenders in the provincial and federal institutions. The crown provided a pamphlet from the Correctional Service of Canada about the "integrated correctional program model" and the available "program descriptions" which included a "moderate intensity sex offender program". Mr. N.M.G. will have access to rehabilitative programs regardless of the length of his sentence. As a result, this is not a factor that has influenced my decision with respect to the appropriate length of the sentence.
52I have considered that a sentence in the penitentiary will result in Mr. N.M.G being housed with prisoners who have committed the most serious crimes. Nevertheless, the unfortunate reality is that Mr. N.M.G. will be vulnerable to abuse in both the provincial and federal institutions for a variety of reasons; the nature of these offences, his young age and physical stature, his cognitive delays and his mother's employment. It is incumbent on correctional officials to accommodate his special needs and protect him from other offenders.
53While I am troubled by the potential impact of incarceration on Mr. N.M.G., it is not my primary concern or focus. The Ontario Court of Appeal has repeatedly encouraged sentencing judges to focus on the harm caused by the exploitation of vulnerable children. In R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 at paras. 75 and 76, Justice Moldaver directed that:
Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive. In the light of the appellant's past criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like those committed by the appellant will typically warrant mid to upper level single digit penitentiary sentences. The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive.
In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence.
54I have considered all of Mr. N.M.G.'s personal characteristics when assessing the impact that a lengthy sentence of incarceration will have on him and his potential for rehabilitation. However, I must also consider the countervailing concern that he is a sexual predator who is currently untreated. He must be separated from society for a significant period of time to protect the well-being of children in the community.
vi. Viewing of the crimes in progress
55Before reviewing the law and deciding the appropriate sentence, there is an issue that I should have addressed during the sentencing hearing. As part of the facts, the crown tendered a representative sample of the images and recordings of six of the children. With the assistance of the investigating officer and the consent of counsel, I watched the victimization of each child and teen in chambers.
56As I was reviewing this evidence, I realized that viewing this evidence was completely unnecessary for me to make an informed decision. It had no probative value to the issues that I have to decide in this matter. I understand that, in certain cases, the depictions, images or recordings may capture evidence or conduct that words cannot adequately convey or describe because of the contents. These recordings are evidence of crimes in progress. Please see for example: R. v. J.S., 2018 ONCA 675, [2018] O.J. No. 4095 (Ont.C.A.). However, this was not one of those cases.
57Mr. N.M.G. committed "child pornography" and child luring offences. I did not need to see these recordings to comprehend the seriousness of these crimes. There was no issue about the identity of the victims or their ages. The facts that were read in described the aggravating facts and the circumstances surrounding the commission of these offences. Any additional details of these offences could have been vividly captured in words. I had a full appreciation of the nature and gravity of Mr. N.M.G.'s misconduct and the extent of his legal and moral culpability without watching these crimes in progress.
58The Supreme Court of Canada's decision in R. v. Barton, 2019 SCC 33, [2019] S.C.J. No. 33 at para. 1, was a much-needed wake-up call for the participants in the criminal justice system to be more vigilant and aware of the message that we send to the public, victims and offenders by the language we use in our decisions and how we conduct ourselves in court. As Justice Moldaver stated, "put simply, we can - and must - do better". That very same consciousness should be applied to how we approach, perceive and communicate the impact of viewing child exploitation evidence.
59Part of the problem with how these crimes are portrayed or perceived by the public is the nature of the wording of the offence itself. The word "pornography" in common parlance refers to representations intended for the sexual pleasure and entertainment of the viewer. "Child pornography" is a misnomer. These depictions and recordings are child exploitation crimes in progress. There is nothing entertaining, benign or harmless about the memorialization of a child being victimized and exploited. The wording of this offence minimizes the callousness of the offenders and the depravity of these offences. Words have power and how the participants in the criminal justice system conduct themselves in court has consequences.
60The conduct of crown attorneys is guided by the public interest. Before seeking to tender this evidence, crowns should consider its probative value and the prejudicial effect. If the only purpose of tendering this evidence is to inflame the conscious of the court, it has very little probative value. In contrast, each and every time one of these images or recordings is viewed or watched, there is a substantial prejudicial impact. It is harmful to the child victim and harmful to the viewer. There is a strong public interest in ensuring that this evidence is not gratuitously tendered as an exhibit or unnecessarily viewed by the court.
61A child's suffering is exacerbated each time someone watches their victimization. I was one more person who viewed the sexualization, degradation and humiliation of these children and teens. They have already struggled with feelings of shame, embarrassment and the seemingly never-ending trauma of believing that these images may be out there somewhere on the Internet haunting them. Child victims are entitled to be treated with dignity in a courtroom and their privacy should be respected as much as possible. At the very least, courts should not contribute to the perpetuation of a child's trauma by viewing these materials unless the probative value substantially outweighs the prejudicial impact.
62The prejudicial impact of this evidence is not restricted to the victims. Participants in the criminal justice system are exposed to tragedies, loss and suffering on a daily basis. Many suffer vicarious trauma as a result. In R. v. Marratt, [2019] O.J. No. 4584 at paras. 7 to 10 (Ont.C.J.), Justice Band explained the potential consequences of vicarious trauma as a result of viewing child exploitation recordings:
Because of the way events unfolded during the sentencing hearing, I believe it is important to repeat here what I have previously stated in another case: R. v. Shaw, [2018] O.J. No. 537. My intention is not to be self-indulgent; rather it is to attempt to spur on and continue an increasingly important conversation about the trauma that justice system participants can suffer by being exposed to disturbing material such as child pornography.
Science shows, and it stands to reason, that frequent and repeated trauma can lead to more serious and lasting impacts on our mental health. This can include decreased productivity, work-avoidant behaviour, work absence, interpersonal problems, relationship difficulties, depression and substance abuse, among others.
Recently, there has been considerable focus on the mental health of jurors after particularly difficult trials. This has led to free support and counseling services being offered through the Ministry of the Attorney General - and rightly so. However, every such case also requires the participation of some or all of the following people: court staff, court officers, victim witness workers, counsel and judges. Moreover, it is well-known that the vast majority of these and other criminal matters are dealt with in the provincial courts. In light of recent changes to the Criminal Code, it is reasonable to expect a significant increase in our over-all case-load, including cases of sexual offences involving children.
For these reasons, I believe that it is my responsibility and that of my colleagues to take an active and leading role in this discussion rather than to sit by and passively leave the door open for harmful evidence that is either unnecessary or presentable in an attenuated form.
63Judges are the gate keepers of justice. I should not have passively allowed the introduction of this evidence and participated in the viewing of it without first asking for submissions about its probative value and assessing whether that probative value was outweighed by the obvious prejudicial effect. I should have done better and will "do better" in the future by inviting submissions before reviewing any child exploitation materials during a sentencing.
C. Legal analysis
i. The purposes and principles of sentencing
64The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
65Depending on the nature of the offence, a Court may focus on specific principles of sentencing as the most important factors to guide the Court's decision. In November of 2005, section 718.01 of the Criminal Code was proclaimed in force. At the heart of the purposes and principles of sentencing in section 718.01 and parts of section 718.2 is the overriding goal of protecting the most vulnerable members of our community, our children. Section 718.01 statutorily identifies that the primary consideration in sentencing for offences against children are the objectives of denunciation and deterrence.
66Any sexual offence involving a child is a serious crime. Section 718.2 of the Criminal Code specifically requires that a Court sentencing an offender shall take into consideration the following deemed aggravating circumstances:
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of 18 years;
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim;
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.
67All three of these aggravating factors are present in this case. In addition to these statutorily aggravating factors, the Ontario Court of Appeal has repeatedly stressed the seriousness of the sexual abuse of children and the importance of sentencing sexual offenders with the principles of denunciation and deterrence in mind. Multiple appellate courts in Ontario have emphasized the lasting emotional and psychological harm caused to the victims of these crimes. This harm leaves the victims with the deepest scars, a legacy of shame and dysfunction that can last a lifetime. Justice Abella explained in R. v. Stuckless, [1998] O.J. No. 3177 (C.A.):
Sexual abuse is an act of violence. When committed against children, the violence is both physical and profoundly psychological. It is coercive and exploitative conduct, and represents the use of compulsion against someone who is defenseless. As Moldaver J. stated in R. v. McF., released April 27, 1992, unreported, (Ont. Ct. (Gen. Div.)):
I cannot conclude that [the accused] should be treated in a more lenient fashion simply because he refrained from the use of threats of physical harm or the infliction of limited and measured amounts of force …
I must again reiterate the feelings that I have expressed in similar cases where the lack of serious physical harm has been advanced as a factor to be considered in mitigation. The crimes of incest and sexual assault are inherently violent. They can and often do have a crippling effect upon the psychological and emotional well-being of the victim. Conduct which brutalizes the mind can be far more devastating, painful and long-lasting than conduct which causes injury to the body.
68These same concerns apply to the possession of child exploitation materials and to child luring offences. The crimes in this case brutalized the minds of two children. The Ontario Court of Appeal in R. v. Rafiq, 2015 ONCA 768, [2015] O.J. No. 5878 at paras 43 to 45, explained that victims of child luring suffer many of the same devastating effects of sexual abuse:
In D.D., this court referred to the decision of the Court of Appeal of Alberta in R. v. S. (W.B.) and R. v. P. (M.) (1992), 73 C.C.C. (3d) 530, at p. 535, in which that court observed:
One consequence of being abused sexually may be that the child will never be able, as an adult, to form a loving caring relationship with another [adult] being always fearful, even unconsciously, that such a partner will use sexual acts to hurt him or her rather than as an intimate expression of caring and affection. There is no empirical way of proving that a particular child victim's emotional trauma will or will not make it more difficult or impossible for him or her to love another, without fear of abuse. We have only the recorded experiences of men and women who attribute their difficulties as adults in forming mature and fulfilling relationships to their having been abused sexually when they were children.
While these observations were made in the context of direct physical sexual abuse, the Internet has made it possible for abusers to get into the victim's head and abuse remotely. The abuser can tell the victim what to do and how to do it, and record it -- in text, video, or photograph -- all for the abuser's gratification. Thus, through manipulation and control over time by an adult abuser, the child victim becomes a participant in her own sexual abuse.
I see no reason to believe that the psychological consequences of such abuse are likely to be significantly less serious than the consequences of direct physical sexual abuse. The extent to which they will occur in any particular victim is impossible to predict. In this case, however, the mother had the advantage of observing her daughter over a four-year period. She spoke poignantly about her isolation from her sister and her family, and the impact of the events on her "ability to love and be loved."
69The abuse and exploitation of children has evolved as recordings of these crimes has become readily available. Sadly, these crimes are forever memorialized in these images and their victimization is seemingly endless. Justice Moldaver in R. v. Morrison, 2019 SCC 15, [2019] S.C.J. No. 15 at paras 2 and 3 (S.C.C.) described the negative consequences of the new digital reality of our daily lives:
But the Internet revolution -- and the Internet itself -- has a darker side. Increasingly, sexual predators are using electronic means to prey upon one of the most vulnerable groups within Canadian society: our children. Access to the Internet among Canadian children is now almost universal, and many are continuously connected, whether through a computer, a smartphone, or another device. This has led to the new and distressing phenomenon of predators lurking in cyberspace, cloaked in anonymity, using online communications as a tool for meeting and grooming children with a view to sexually exploiting them.
In response, Parliament has enacted provisions in the Criminal Code, R.S.C. 1985, c. C-46 ("Code"), aimed at prohibiting child luring through telecommunications and ensuring that those who breach this prohibition receive a punishment that reflects the gravity and seriousness of the offence and the high degree of moral blameworthiness associated with it.
And further on at paragraphs 39 to 40:
I find it useful to first describe the nature and purpose of the child luring offence. Parliament created this offence to combat the very real threat posed by adult predators who attempt to groom or lure children by electronic means. As this Court explained in Levigne, the offence seeks to protect children by "identify[ing] and apprehend[ing] predatory adults who, generally for illicit sexual purposes, troll the Internet to attract and entice vulnerable children and adolescents": para. 24.
To achieve this purpose, s. 172.1 criminalizes conduct that precedes the commission, or even the attempted commission, of certain designated offences, most of which involve sexual exploitation of children. It thereby creates an essentially inchoate offence -- that is, a preparatory crime that captures conduct intended to culminate in the commission of a completed offence: see Legare, at para. 25; R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 20, citing A. Ashworth, Principles of Criminal Law, (5th ed. 2006), at pp. 468-70. There is no requirement that the accused meet or even intend to meet with the other person with a view to committing any of the designated offences: see Legare, at para. 25. The offence reflects Parliament's desire to "close the cyberspace door before the predator gets in to prey": para. 25.
70In R. v. Cowell, 2019 ONCA 972, [2019] O.J. No. 6284 at para 120 (Ont.C.A.), the Court of Appeal reaffirmed the harm caused by child luring offences:
… [t]he social reality is that 'access to the Internet among Canadian children is now almost universal' and 'predators lurking in cyberspace, cloaked with anonymity are able to meet, groom and sexually exploit vulnerable children through telecommunication: Morrison, at para. 2. Children are defenceless to the sexual exploitation of adult predators, who are only one click away: R. v. Woodward, 2011 ONCA 610, at para. 72. The harm caused by this offence is often life-altering for innocent children: Morrison, at paras. 3, 153; Woodward, at para. 76.
71Fortunately, J.A. does not know that he was victimized. Should he ever find out, I can't imagine the extent of the betrayal, violation and confusion that he may feel as a result. The two youngest victims are suffering significantly, and these offences have detrimentally impacted every aspect of their lives. Eight different children were manipulated into degrading conversations and/or exposed to graphic depictions and lured into performing sexual acts on themselves online by Mr. N.M.G. He used child exploitation images as a tool to commit these offences. He used the naivety of the victims to produce child exploitation materials and then kept a lasting record of the victimization of six children including his cousin. He memorialized his crimes and created his own personalized, organized collection of child exploitation materials.
72It is evident that these offences have had a profound impact on the psychological and emotional well-being of at least two of the victims and caused unnecessary embarrassment and shame for the other victims. In addition, Mr. N.M.G.'s crimes were not restricted to the digital realm. He touched his sleeping cousin and removed his clothing to pose him for the purpose of producing child exploitation material.
73Although Mr. N.M.G. indicated that he did not intend to meet up with any of his victims, the danger he posed escalated when he agreed to meet up with some of them at a community center. Of course, the intention to meet up with any of them is not an element of this offence. The overriding goal of sentencing is to discourage other adult predators from preying on the vulnerabilities of children from behind the anonymity of a computer screen.
74I am guided by the Supreme Court of Canada's and the Ontario Court of Appeal's unwavering direction that the imposition of substantial sentences in child luring cases and the possession of child exploitation materials is essential to protect defenceless children in our community.
ii. The principle of parity
75In addition to these guiding sentencing principles, subsection 718.2 (a) of the Criminal Code codified the long standing principle of parity that:
A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances
76While this principle is an important and laudable goal, each individual case is often so unique that it is difficult to achieve parity in sentencing. For example, none of the cases provided by the crown had the same numbers of offences with similar facts and a similar offender in similar circumstances.
77Ultimately, considering the unfortunately countless ways to commit any offence, the distinctive victim impact and the individuality of each offender, it is very challenging to find comparable cases. As Chief Justice Lamer stated in R. v. M. (C.A.), [1996] 1 S.C.R. 500, (1996), 105 C.C.C. (3d) 327, at paragraph 92:
...Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.
78Even though sentences are determined on a case by case basis, precedents that discuss sentence ranges for these types of offences provide some guidance as to the appropriate sanction. In recent years, the Ontario Court of Appeal has been very clear that the range of acceptable sentences for these offences has been increasing to reflect the pervasive nature of these offences and the lasting impact on the victims. In R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (Ont.C.A.), Justice Moldaver reviewed earlier authorities and found that:
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.
79Unfortunately, due to the proliferation of Internet child exploitation crimes, there are a multitude of sentencing decisions since Woodward that provided me with additional guidance with respect to fit sentences. I only intend to review three of these decisions.
80The crown and defence counsel referred to R. v. Hems, [2019] O.J. No. 5541 (Ont.S.C.J.). Mr. Hems was both developmentally delayed and he was seriously mentally ill. He spent most of his childhood in residential schools. He was 21 years old when he committed the offences and he was a youthful first offender. He pled guilty to luring an 11 year old girl by sending her sexually explicit images and messages. When he was arrested, police located two images and 17 videos of child pornography that were unrelated to the victim of the luring offence. He was sentenced to 6 months incarceration for the luring and 2 months consecutive for possession of child pornography to be followed by three years of probation and a section 161 order for a period of 10 years.
81In the decision of R. v. Clarke, [2017] N.J. No. 230 (Nfl.P.C.J.), the offences were more similar to this case however, the offender was much older. He did not struggle with any mental health issues or disabilities. Like Mr. N.M.G., Mr. Clarke created a false identity of a twelve year old boy and used this identity to communicate with an eleven year old girl. He persuaded the victim to engage in sexually explicit conversations, she sent him sexually explicit pictures of herself and he sent pictures of a penis. He plead guilty to luring and possession of pornography. He did not have any criminal antecedents. The Court engaged in a very thorough review of sentence ranges for luring offences and possession of child exploitation material at paragraphs 59 to 79. Mr. Clarke was sentenced to twelve months for the luring offence and 8 months consecutive for possession of child pornography to be followed by three years of probation and a section 161 order for a period of 10 years. Notably, he received a total of 20 months for similar offences with one victim and he did not touch any child or breach the trust of a family member.
82In R. v. Rafiq, 2015 ONCA 768, [2015] O.J. No. 5878 (Ont.C.A.), the Court of Appeal considered another case with a single victim of child luring. The 24 year old accused engaged in the online abuse of a twelve year old girl over a period of 6 months by manipulating her into sending him intimate images of herself engaged in sexual acts, he instructed her on how to perform sexual acts and sent images of himself. The Court of Appeal found that the trial judge overemphasized the offender's potential for rehabilitation, his naivety and his lack of criminal record when she gave him a conditional sentence. The appeal from the sentence was granted and the offender was sentenced to two years incarceration despite several similar mitigating facts. The Court noted that:
I appreciate that following a guilty plea, and in the absence of the victim, the sentencing hearing understandably focussed on the offender.
But a conditional sentence was not an appropriate outcome. I say this despite the respondent's youth, remorse, prospects for rehabilitation and absence of threat to society. A custodial sentence is required to denounce his conduct and to make it clear to those who would use the Internet to abuse young children that such conduct has serious punitive consequences.
Unlike many of the child luring cases that come before the court, the respondent's conduct was not simply preparatory to a crime, but amounted to distinct serious offences repeatedly committed on a 12 year-old child over a prolonged period of time.
Arguably, the most recent amendment to this offence imposing a mandatory minimum sentence for luring should require the appropriate range of sentences to be revised upward even further: see e.g. Woodward, at para. 58
83For offences involving one victim of luring, following pleas of guilty with similar facts, Mr. Clarke received twenty months incarceration and Mr. Rafiq received a sentence of two years incarceration. Mr. N.M.G. engaged in this conduct over a period of nine months with eight children/teens and he manipulated one of them into suggestively posing his younger brother and he abused his own cousin to produce child exploitation images of him. All of this conduct was motivated by Mr. N.M.G.'s need for sexual gratification and exploration.
84The two years incarceration proposed by counsel in this case is entirely inadequate to address the predominant sentencing principles and the aggravating factors. It is clearly outside the appropriate range of sentences. Counsel overemphasized the mitigating circumstances of this offender. Initially, considering the nature of these offences, the number of victims and the impact on the victims, I also found the range of three to five years that was advocated by the Crown to be too lenient. However, the crown's position is reflective of the young age of the accused, the many mitigating facts and the recognition that this will be his first sentence of incarceration.
iii. The principle of restraint
85Except for very serious offences or crimes of violence, the primary objectives when sentencing a first offender are considerations of individual deterrence and rehabilitation. Please see: R. v. Stein (1974), 15 C.C.C. (2d) 376 (Ont.C.A.) These objectives are best achieved by non-custodial sentences. This principle of restraint was codified in section 718.2 of the Criminal Code:
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
86There are some offences however, that are so serious that the paramount principles of denunciation and deterrence demand a lengthy custodial sentence despite a lack of any criminal antecedents. Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. The Supreme Court of Canada in R. v. Lacasse, supra, at para 12 explained:
The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of [page1103] the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.
87The individual sentences on each count cannot be either too lenient or too harsh and I have to ensure that the total length of the sentence is not crushing.
iv. Totality
88Although the sentence ranges for sexual offences involving children have been increasing over the past seven years, Parliament also responded to the public outcry about the perceived inadequacy of sentences for child sex offenders. As part of the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, the Criminal Code was amended. Section 718.3(7) was introduced and mandates the imposition of a consecutive period of imprisonment for each distinct offence:
When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct:
(a) that a sentence of imprisonment it imposes for an offence under section 163.1 be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another section of this Act committed against a child; and
(b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child, other than an offence under section 163.1
89In R. v. S.C., 2019 ONCA 199, [2019] O.J. No. 1286 at paragraph 17, the Ontario Court of Appeal acknowledged that section 718.3(7) requires consecutive sentences for child sex offences but went on to explain that:
The Criminal Code does not mandate a purely mechanical approach whereby all sentences governed by s. 718.3(7) must be simply added up and imposed. Both at trial and in oral argument before us, the Crown properly conceded that s. 718.3(7) is subject to the totality principle. Section 718.3(7) must be read together with s. 718.2 (c) stating that "where consecutive sentences are imposed, the combined sentences should not be unduly long or harsh."
90In R. v. Ahmed, [2017] ONCA 76 at para 85, the Court of Appeal provided trial judges with direction on how to arrive at a fit sentence when there are multiple counts and/or multiple victims:
In Jewell, this court said that the trial judge should first identify the gravamen of the conduct giving rise to all of the criminal offences, and next determine the total sentence to be imposed. Having determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in the total sentence, and which appropriately reflect the gravamen of the overall criminal conduct.
91This is a highly unusual case. As noted at the outset of these reasons, the crown chose to proceed with only four of the counts that represent each type of offence and emphasized the counts with respect to J.A. and one of the youngest victims. The crown has already addressed the totality principle by withdrawing most of the charges and only proceeding on these four representative counts. Nevertheless, the sentence for each of these representative counts should reflect the multiple victims, the impact on those victims and all of the aggravating facts.
D. Conclusion
92The Ontario Court of Appeal helpfully summarized all of the sentencing considerations in R. v. E.C., 2019 ONCA 688, [2019] O.J. No 4460 (Ont.C.A.):
Within the wide range of available sentences, the court must impose an appropriate sentence - one that is proportionate to the gravity of the offence and the degree of responsibility of the offender, and, respecting the principle of parity, is proportionate to sentences imposed for similar offences committed in similar circumstances: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53.
93Absent the mitigation of a plea, the crown would have been well positioned to seek a lengthy sentence in the penitentiary. Even after a guilty plea, I would have exceeded the sentence range proposed by the crown were it not for the multiple uniquely mitigating facts with respect to this offender. Mr. N.M.G. is so young. He is immature and has some cognitive and intellectual disabilities. He had just become an adult in the eyes of the law when he committed these offences. He has no record. He is genuinely remorseful, and he has significant potential for rehabilitation. As a result, the higher end of the sentence range proposed by the crown will achieve all of the objectives of sentencing while balancing the various competing considerations and the mitigating facts.
94A total sentence of four and a half years in the penitentiary is a fit and just sentence. The sentence for each count will be consecutive to reflect the different delicts and victims:
Count 4: possession of child pornography of J.A. contrary to section 163.1 of the Criminal Code 18 months incarceration
Count 5: surreptitiously making a visual recording of a person while exposing the genital and anal region of J.A. contrary to section 162 of the Criminal Code 6 months incarceration consecutive
Count 9: make available sexually explicit material to a person (J.E.) under the age of 18 years old contrary to section 171.1 of the Criminal Code 12 months incarceration consecutive
Count 26: communicate with a person who he believed to be under the age of 16 (K.G.) for the purpose of facilitating an offence under 163.1 contrary to section 172.1(2) of the Criminal Code 18 months incarceration consecutive
95This is a total sentence of 54 months or 4 years and 6 months in the penitentiary. There will be a recommendation on the warrant of remand that Mr. N.M.G. participate in the "moderate intensity sex offender program" while incarcerated in the penitentiary. This program will benefit Mr. N.M.G. and it will also protect children from any risk that he poses when he is released from custody.
96I was also prepared to recommend on the warrant of remand that he should be housed in protective custody considering his unique vulnerabilities. However, Mr. N.M.G.'s mother assured me that there are already plans in place to protect her son from other inmates as a result of her employment.
97In addition to the period of incarceration, there will be an order pursuant to section 743.21 of the Criminal Code prohibiting Mr. N.M.G. from contacting any of the victims while in custody. There will be a lifetime S.O.I.R.A. order, a D.N.A. order and a section 109 weapons prohibition for a period of 10 years. Considering that the dates of these offences pre-dated the change in legislation introduced in Bill C-75, the victim fine surcharges on all four offences will be denied.
98The crown also requested a 20 year section 161 order. Defence counsel submitted that something in the range of five to ten years is more appropriate in light of Mr. N.M.G.'s young age and the punitive nature of a section 161 order.
99A section 161 order is a discretionary and punitive sanction that requires a measured approach. The liberty interests of the offender may be restricted for a substantial period of time. The Ontario Court of Appeal provided the following guidance in R. v. Schulz, 2018 ONCA 598, [2018] O.J. No. 3526 about when and how a court should exercise this discretion:
The overarching protective function of s. 161 of the Criminal Code is to shield children from sexual violence: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 44. An order under s. 161 constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and, the content of the order must respond carefully to an offender's specific circumstances: K.R.J., at paras. 48-49. [emphasis mine]
100Similarly, in R. v. Brar, [2016] ONCA 724, the Ontario Court of Appeal carefully reviewed the Supreme Court of Canada's decision on section 161 orders in R. v. J. (K.R.), 2016 SCC 31, [2016] S.C.J. No. 31 and explained at paragraphs 17 and 18 that:
In J. (K.R.), the majority of the Supreme Court confirmed that orders made under s. 161 have a predominantly protective purpose, that is, to shield children from sexual violence (at para. 44). [full paragraph not reproduced]
The Supreme Court emphasized that these orders are discretionary and flexible, as s. 161 "was designed to empower courts to craft tailored orders to address the nature and degree of risk that a sexual offender poses to children once released into the community" (at para. 47). Because these orders can have a significant impact on the liberty and security of offenders and can attract a considerable degree of stigma, they will be justified where the court is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk the offender poses to children (J. (K.R.), at paras. 48, 54). The terms of such orders must, therefore, "carefully respond to an offender's specific circumstances" (at para. 48).
101Dr. Kalia provided an informed opinion after conducting interviews and engaging in phallometric testing with Mr. N.M.G. that he has a "problem with pedohebephilia of a bisexual nature". That means that he is sexually attracted to pre-pubescent and pubescent children. In addition, Dr. Kalie noted that:
p. 19: He is likely to display a variety of maladaptive behaviour patterns aimed at controlling anxiety. His personality style involves some risk taking and a tendency to be rather impulsive.
p. 22: His risk factors include sexual deviance, and problems with intimate relationships. To his credit, he has not engaged in minimization or externalization of blame, rather he takes full responsibility for his behaviour, and presented as committed to understanding it. In summary, based on the RSVP risk appraisal, the likelihood that he will commit an act of sexual violence is in the low to moderate range.
p. 24: His score on the actuarial risk measures is in the moderate range. However, with change-focused interventions as recommended in this assessment, reoffending potential is amenable to be modified in the downward direction. Notwithstanding this statement, out of abundance of caution, I would not support him being in the presence of a child unsupervised. He has been in the community and has followed bail conditions without any breach. This makes him a good candidate for further management in the community. I am positive that he will likely comply with supervision strategies that are put in place through a court order.
102Any risk to reoffend is frightening considering the possible consequences. Mr. N.M.G. is currently a moderate risk to reoffend. With treatment, this risk assessment may change but there is no guarantee that Mr. N.M.G. will take the treatment that he needs to reduce his potential for harming children when he is released back into the community. There is a strong evidentiary basis upon which to make the section 161 order in this case.
103Balancing the impact on the liberty interests of Mr. N.M.G. and the importance of protecting other children and teens from any further impulsive sexual misconduct and the potential consequences of his predilections for children and his diagnosed paraphilia, a section 161 order for a period of nine years is necessary. When arriving at this number, I considered that he already abided by terms of bail akin to a section 161 order for more than a year. The terms of the section 161 order have to be tailored to Mr. N.M.G.'s specific circumstances and to assist him with successfully reintegrating into society.
104Due to Mr. N.M.G.'s cognitive limitations and his need for community support and counseling when he is released from custody, I will remove the reference to community centres from the section 161 order. I have also considered that the Internet and digital mediums are an inextricable part of our daily lives. To completely prohibit such a young man from using the Internet or other digital networks for the next nine years after he has served his sentence will negatively impact his career and educational opportunities. In addition, many beneficial counseling services are now available on-line. It would be excessive and counter-productive to issue a total prohibition from accessing the Internet or other digital networks.
105The terms of the 161 order must not be unduly punitive while still accomplishing the protective objectives of preventing Mr. N.M.G. from communicating with or harming children. As a result, Mr. N.M.G. will be bound by a 9 year section 161 order that prohibits him 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 center, schoolground or playground except while he is directly supervised and in the continuous company of an adult over the age of 25 years old;
(a.1) being within 100 meters of any dwelling-house where any of the victims are known to ordinarily reside (there is no exception to attending at J.A.'s home);
(a.1) being within 100 meters of any other place J.A. is known to be except while in the direct and continuous company of an adult over the age of 25 years old;
(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 except while he is directly supervised and in the continuous company of an adult over the age of 25 years old or except for brief incidental contact during commercial transactions;
(d) using the Internet or other digital network unless:
the computer or telecommunication devices used to access the Internet or digital network does not have any erasing, cleansing or scrubbing software installed or that can encrypt saved files; and
He does not represent himself to be someone other than his legal name and his correct legal age; and
He does not access, possess, share or view child pornography or any child exploitation materials; and
He does not join or participate in any chat rooms or social media sites or groups that he knows persons under the age of 18 are likely to participate in; and
He does not engage in any conversations with or exchange intimate depictions, images, photographs or videos with anyone known to be, depicted to be or represented to be 18 years of age or younger; and
He does not post any information about, depictions of, photographs of, or recordings of any of the victims on any social media site or any other digital medium.
106Pursuant to the section 161(2) of the Criminal Code, the 9-year section 161 order will commence on the date on which the he is released from imprisonment for these offences, including release on parole, mandatory supervision or statutory release.
Released: March 13, 2020
Green J.
