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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Ontario Court of Justice
Date: 2021 01 11 Court File No.: 011029
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
J. R.
Before: Justice Allison Dellandrea
Submissions on sentence heard on: December 2, 2020 Reasons for sentence released on: January 11, 2021
Counsel: Ms. Carrie Vandenbroek, Counsel for the Crown Mr. Colin Alexander, Counsel for the defendant J. R.
1J.R. has been found guilty after trial of Luring (s. 172.1) and Extortion (s. 346) for which the Crown proceeded by indictment. Luring has a maximum sentence of 14 years, while Extortion has a maximum of life imprisonment.
I. Introduction and Positions of the Parties
2The Crown submits that J.R.’s conduct represents among the most serious possible examples of the combined offences of Luring a Child and Extortion. It is argued that J.R.’s particular combination of callous offences resulted in his infliction of a degree of harm to his victim which has been previously unseen in any sentencing precedents, and for which an exemplary sentence is warranted.
3The child who was victimized by J.R.’s online predation was not an undercover officer or a stranger identified anonymously online, but was his own daughter. A daughter who had been needed to be placed into CAS care as she was the biological product of J.R.’s earlier sexual abuse of her step-sister. J.R. committed these offences while under a strict supervision order of the family court, which he violated. The Crown emphasizes the unprecedented moral blameworthiness of the offender’s conduct, the devastating harm to the victim’s psychological well-being, as well as the offender’s continued lack of insight and remorse. Relying on the Supreme Court of Canada’s strong language in Friesen, 2020 SCC 9 and Legare, 2009 SCC 56, the Crown submits that the appropriate sentence for J.R.’s offending is a period of imprisonment of 6 years. The Crown also requests the following ancillary orders: SOIRA (life); DNA (primary); s. 109; Non-communication s. 743.21.
4On behalf of the offender, Mr. Alexander submits that the appropriate sentence for his client’s offences are 18 months to 2 years’ imprisonment for the offence of Luring, and 12 months concurrent for the offence of extortion. Counsel acknowledged the gravity of his client’s breach of his fiduciary duty to his child, but emphasized the lack of any physical touching in the offending behaviour. It was suggested that J.R.’s exploitation of his daughter was at the “low end” of the spectrum, for which an upper reformatory sentence of imprisonment would be appropriate.
5This was a particularly difficult and complex sentencing. The offences were very serious as they involved the intra-familial sexual abuse of a particularly vulnerable child. A fulsome review of the aggravating and mitigating circumstances, as well as the guiding sentencing principles and available precedents are necessary to explain my decision.
II. Facts:
i. Circumstances of the Offence
6J.R.’s offences were committed against his daughter/granddaughter M.G., who was between 11 and 12 years of age at the time of these offences. M.G. was 13 when she testified at trial.
7M.G. had been removed from the offender’s care by the CAS in 2016 and placed in foster care when authorities learned that she had been born to her stepsister, P.G., whom J.R. had impregnated following years of prolonged sexual abuse. M.G. had been raised by the offender as his daughter, without ever knowing that she was also his granddaughter.
8Approximately a year after M.G.’s apprehension, J.R. was granted limited access to her by the family court. J.R. was permitted to communicate with M.G. only while under the direct supervision of a member of the CAS, or another approved adult. All other communication with M.G. was prohibited.
9In direct contravention of the terms of the prohibition order, J.R. provided M.G. with a cellphone and began texting her in secret. The offender had pre-loaded the instant messaging program Snapchat on the child’s phone, through which he initiated the illicit exchanges which became the subject-matter of his offences.
10J.R. immediately started asking his daughter to send him photos of herself. M.G. sent him pictures of her face, and he replied: “not that kind.” During several months of secret communication, J.R. demanded that M.G. send him nude images of her breasts and genitals, in exchange for new electronics, and his continued visits. J.R. told her to lock herself in the bathroom and send him images of her “playing with herself.” He threatened to never come and see her again, and to discard her belongings if she failed to deliver on their “deal.” Initially M.G. resisted her father’s entreaties, but eventually she “gave in” to his continuous demands because she “felt badly saying no to him.” M.G. transmitted several video and still depictions of her sexual organs to her father over Snapchat. Once she had done so, J.R. tried to leverage her initial agreement to demand more images, claiming it would be the “very last time.”
11M.G. pleaded with her father to stop asking her for pictures, reminding him that “it’s not right” especially “because I’m you’re daughter.” M.G. begged J.R. to stop (“Plz Daddy!”) and warned her father that they could get “in trouble” if they got caught. J.R. directed M.G. to go “into the washroom and lock the door. Simple?” The chatlogs are replete with J.R.’s petulant refrain: “deal or no deal.”
12The “deal” which J.R. refers to in his online chats with M.G. involved both inducements and threats. In the 29-page chatlog which was tendered as an Exhibit, J.R. asks M.G. if she wants a television, DVD player and a new iPhone. When she says “yes” to each offer, he refers her back to her part of the “deal.” When M.G. resists his inducements, J.R. threatens to give the promised electronic items away, and escalates the pressure on his daughter with unfeeling and targeted emotional threats. He tells M.G. she might not see him anymore, as he is going to “give up and let the CAS have you.” In his ultimate flourish of cruelty, J.R. taunts M.G. with reference to “the secret they have been keeping from you” – a callous reference to fact that she was herself the product of the offender’s sexual abuse of her sister.
13In June of 2018, M.G. disclosed to her foster-mother that her father had demanded “nudes” from her during several months of secret texting. J.R. was arrested.
14A single child pornography video of M.G. was forensically recovered from a broken cellphone which had once been in her control, and which was located in J.R.’s residence. The video was located in the “outbox” of M.G.’s phone, and there was no evidence of it ever having been transmitted, received or viewed. M.G. maintained in her evidence that she had only transmitted the “nudes” to her father over Snapchat - which allows users to transmit and display content to other users temporarily, as opposed to permanently. There was no evidence of J.R. having taken any steps to save any of the illegal images which M.G. had sent to him. Accordingly, J.R. was found not guilty of possessing child pornography.
15However, the evidence which I accepted from M.G. in combination with the chatlog was sufficient to establish beyond any reasonable doubt that J.R. had received the 3-6 child pornography depictions which M.G. described having sent to him on Snapchat. J.R.’s explicit direction to M.G. to lock herself in the bathroom to fulfill the deal “one last time” make it clear that he had previously seen and viewed the sought-after images.
ii. Victim impact
16In her five page victim impact statement which was read by the Crown and filed as an exhibit, M.G. describes the devastating confusion, shame and emotional harm which she felt “having to know that my own father (J.R.) did this to my mom (P.G.) and tried to do it to me.” The following are some excerpts from M.G.’s thoughtful and profound victim impact statement:
- There’s not a day that goes by that I don’t think about what happened and what he asked me to do, he ripped me out of having a normal teenage life.
- When people would ask about my dad all the time I would answer all good things but now there’s nothing I can say good and not be ashamed.
- There is so many countless nights that I would start to cry and pray that my life was just a bad movie and it will all go away and then I realize that it’s never going to go away.
- What he wanted from me is going to be stuck with me for the rest of my life until the day I die.
- The good memories that I had of my dad is gone. When I think about him all that I think about is what he wanted to do to me. He did not care what would happen to me and how he messed up my mom.
- What hurts me most is when I see everyone around me having fun with their dads and moms and just having fun as one big family together, I will never be like that.
- I have been taking therapy for the past 4 years and it has helped with some things but some days I feel like it is not so much helping me but reminding me of how messed up my life is.
- To know what a father should be to his daughter makes me sad that you did not do this. You ripped me off from having a mom to take of me…you took away any chance of me having a mother daughter relationship I wanted.
- There are also countless days when I would put on a fake smile and pretend everything was okay but inside im so sad all im really trying to do is not cry.
17Upon filing the victim impact statement, the Crown advised me that M.G. had declined to come to court to read it herself because she felt that she had been “lost in the process” of the court proceedings. Without ever presuming to know how M.G. must have felt about her participation as a witness at her father’s trial, I can well imagine how difficult that process must have been. I can also understand how a witness could feel “lost” in the somewhat clinical formality of a criminal trial, in which the witness knows that she is the subject of discussion and analysis in her absence. This feeling must be even more acutely felt when the subject matter of the trial is as difficult as it was at this one, and when the witness is a child.
18While I cannot change the unfortunate feelings of discomfort which M.G. expressed about the court process, I can assure M.G. that she is central to the determination which I must make in sentencing J.R. M.G.’s protection and the acknowledgement of her harm are among my core concerns in this process.
iii. Circumstances of the offender/Presentence report
19J.R. is 51 years of age. He currently resides with his new partner and works in the trucking industry.
20J.R. reported being sexually abused by his oldest brother between the ages of 11 to 14. He testified that he never told anyone about the abuse or sought any counselling for it.
21J.R. was previously married to S.G. When they got married, S.G. had an infant daughter from a previous relationship. The couple raised the daughter, P.G. as their own child from infancy. They also had a son together, D.R.
22J.R. has a strongly related criminal record.
23J.R.’s conviction in 2008 resulted from his sexual abuse of his stepdaughter P.G., which he admitted went on for “about 10 years.” J.R. impregnated P.G. twice. She terminated the first pregnancy, but became pregnant by him again in 2006, and gave birth to a daughter, M.G. when she was 15. J.R. was charged in 2006 and pleaded guilty in 2008 to sexual exploitation for his sexual conduct with P.G.
24J.R. received an 18-month conditional sentence of imprisonment, and 12 months’ probation for the offence of Sexual Exploitation of his stepdaughter P.G.
25As part of his conditional sentence, J.R. completed the Sexual Offender Relapse Prevention (SORP) program, as well as phallometric testing at the CAMH sexual behaviours clinic.
26J.R. failed the phallometric testing portion of the sexual behaviours assessment in 2008. However, he continues to deny any attraction to minors – an assertion which he repeated to the author of the presentence report in relation to these offences.
27During the time that he served his conditional sentence, the infant M.G. was placed into CAS care. However, when she was approximately 3 years old, M.G. was regrettably returned to J.R.’s custody, and raised by him as his daughter. P.G. lived elsewhere and neither J.R. nor any of his family members ever revealed to M.G. the truth of her maternity. The “secret” of her being her sister’s daughter was one that was kept from the child and used to malign P.G. for unspoken reasons. The offender told M.G. that her “sister” P.G. had chosen to leave the family and must not have cared about her anymore.
28In 2016, when she was 10 years old, M.G. was apprehended by the CAS from J.R. and placed into foster care. M.G. was not informed of the reason for her apprehension or told of her father’s unlawful sexual history with her sister. She was simply told that it was no longer “safe” for her to remain in the J.R. household.
29Within a year of M.G.’s apprehension, J.R. applied for and was granted supervised access to M.G. by the family court. He was bound by an order to have no communication with M.G. except while in the direct supervision of a CAS worker at a CAS facility, or while in the company of an approved adult. The prolonged unlawful communications resulting in the current offences were committed in contravention of the terms of this order.
30J.R. revealed to the author of the presentence report that he has a heart condition as well as kidney disease. He has recently undergone two minor kidney surgeries. He states that he suffers from anxiety and depression. He references not being able to see M.G. as among the sources of his stress.
31J.R. denied the author of the presentence report access to the family CAS worker, on the basis that he did not trust the worker.
III. Applicable legal principles
32The statutory framework governing the sentencing of offences which involve the abuse of a child is expressed in ss. 718.01 and 718.2 of the Criminal Code:
718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years; it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen 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.
33Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code. The protection of all children from sexual abuse is recognized as a vital interest of a free and democratic society: Mills, 2019 SCC 22, at para. 23. The privilege of parenting imposes the highest degree of trust and responsibility on adults for the care and protection of their own children.
34For decades, Canadian appellate courts have offered a clear and consistent warning to adult offenders who exploit the sexual dignity of innocent children: those who do so will pay a “heavy price”: R. v. D.D. (2002), O.J. 1061 (C.A.) at 44; Woodward, 2011 ONCA 610; Inksetter, 2018 ONCA 474.
35It is well known that sexual offences against children rob them of their youth and innocence. They can tear families apart and leave them dysfunctional. Victims’ lives are irretrievably damaged and sometimes permanently destroyed. Children who are sexually abused are often unable to form loving relationships with others as adults, as they may fear that any form of intimacy might expose them to exploitation or harm, as opposed to comfort or affection: D.D, supra, at para. 45; R. v. S. (W.B.) and R. v. P. (M.) (1992), 73 C.C.C. (3d) 530 (AB CA), at p. 535.
36In Rafiq, 2015 ONCA 768, the Court of Appeal recognized that the same harms which are recognized to flow from the physical sexual abuse of a child may well be felt by children who suffer more remote, but equally insidious forms of sexual exploitation online:
44 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.
45 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.
37A similar observation was made by the court in D.G.F., 2010 ONCA 27, where Justice Feldman noted the unfortunate rise in the incidence of such offences, and the corresponding increase of harm to children:
Unfortunately, the incidence of this behaviour appears to be increasing and expanding as technology becomes more sophisticated, encouraging the production of child pornography and greatly facilitating its distribution. The victims are innocent children who become props in a perverted show, played out for an ever-wider audience not only of voyeurs but of perpetrators.
38In R. v. L.M., 2008 SCC 31, the Supreme Court of Canada emphasized the necessity that sentences for sexual offences children properly reflect the complexity of the particular combination of crimes committed, and that the global sentence be suitable to their total gravity. The Court emphasized the need for sentencing judges to pay close attention to the “close relationship between the offences, and the overall situation they give rise to,” in order to fashion an appropriate sentence.
Luring a Child
39To no surprise, neither party was able to provide me with a sentencing precedent for the offences of Luring and Extortion which was comparable to the facts of this case, namely: one which involves the covert intra-familial exploitation and breach of trust of a vulnerable child. Cases considered involving communications with undercover officers posing as children: Morrison, 2019 SCC 15; Cowell, 2019 ONCA 972; Faroughi, 2020 ONSC 780; Ghotra, 2020 ONCA 373; Mould, 2020 ONCA 28, Alicandro, 2009 ONCA 133. Cases considered regarding communications with real children: N.M.G., 2020 ONCJ 146, A.H., 2018 ONCA 677; Rafiq, 2015 ONCA 768; Saliba, 2019 ONCA 22; Brar, 2016 ONCA 724; Saad, 2019 ONCJ 527; May, 2019 ONCJ 725; Hems, 2019 ONCJ 779.
40Far more commonly, the vast majority of internet luring charges and precedents arise from undercover sting operations in which investigators pose as children online in order to identify predators who use the cloak of anonymity to “lurk in cyberspace”: Morrison, 2019 SCC 15, at para. 2, in order to meet, groom and sexually exploit otherwise inaccessible and vulnerable children through telecommunication.
41As the Supreme Court of Canada explained in Levigne, 2010 SCC 25, the offence was designed to protect children by “identifying and apprehending predatory adults who, generally for illicit sexual purposes, troll the Internet to attract and entice vulnerable children and adolescents.”
42Neither the prohibited conduct nor the resultant danger and harm caused by the offence of internet luring are dependent on the victim being within physical proximity to the perpetrator. The relative ease by which children of a technological age can be reached – most often from afar – and quickly ensnared in a covert discourse of deception and devastating harm is precisely the reason why children must be meaningfully protected from predators who choose this forum to seek their own sexual gratification.
43Offences of luring which involve the offender’s successful use of the internet to reach a real child in order to engage in communications aimed at facilitating the commission of secondary sexual offences are recognized as being significantly more serious and requiring of more significant sentences: Cowell, 2019 ONCA 972, at paras. 74-76; Rafiq, 2015 ONCA 768, at paras. 44-45; A.H., 2018 ONCA 677 at para. 46; Dragos, 2012 ONCA 538 at paras. 87-89. The Crown provided me with a number of useful authorities which identified additional aggravating factors such as the use of grooming or threats to entice the child’s participation in the prurient discourse or creation of self-exploitative images, as well as the progression towards meetings aimed at contact sexual offences.
44Early appellate sentencing decisions situated the range of sentence for offences of child luring between 12 and 24 months: R. v. El-Jamel, 2010 ONCA 575; R. v. Alicandro, 2009 ONCA 133, supra; R. v. Jarvis (2006), 211 C.C.C. (3d) 20 (C.A.); R. v. Folino (2005), 77 O.R. (3d) 641 (C.A.). These authorities addressed offenders who engaged with police officers who were posing online as underaged children.
45More recently, the Court of Appeal has been very clear that the appropriate range of sentences for these offences has needed to increase in order to adequately address the pervasive nature of the sexual exploitation of real children online. Woodward, 2011 ONCA 610, at para. 58. The harm often caused by this offence has been described as “life-altering” for innocent children – as the essence of the abuser’s exploitation is to make the victim a participant in her own sexual abuse: Rafiq, 2015 ONCA 768, at para. 44; Morrison, 2019 SCC 15, at paras. 3, 153.
46The Court of Appeal’s analysis in Rafiq with respect to the significant harm caused by internet luring to a real child is particularly apposite in this case.
47In Rafiq, 2015 ONCA 768, the 24-year-old offender met the 12-year-old victim in an online gaming environment. Over the course of several months, he engaged in sexually explicit chats with her during which he sent pictures of his penis, and encouraged her to transmit intimate images of herself, which she did. The offender never met his victim in person. The offender pleaded guilty to one count of Luring, and received a conditional sentence of two years. The Court allowed the Crown appeal of sentence and substituted a sentence of two years less a day imprisonment.
48In allowing the Crown appeal from sentence, the Court of Appeal held that the sentencing judge had failed to give adequate emphasis to the significantly aggravating factor of the offender’s repeated urgings to the child to make and transmit naked images to him. While there was no conviction for distribution or possession of child pornography in Rafiq, the fact that such images were created and transmitted were among the circumstances which the court yet had a duty to consider in assessing the seriousness of the offence.
49The Court in Rafiq directed sentencing judges to recognize the uniquely insidious effect of an offender’s efforts to obtain sexually exploitative images from a child. Once the victim agrees to supply nude images of herself to the offender, the offender gains an extra-powerful mechanism to manipulate her to continue to supply more: Rafiq, 2015 ONCA 768, at para. 33. In Rafiq, the 24-year-old offender had no prior record, pleaded guilty, engaged in meaningful counselling and was deemed to be at a low risk to reoffend. These factors, which were acknowledged to be significantly mitigating, are notably absent in this case.
The message in Friesen
50In its recent decision in Friesen, 2020 SCC 9, the Supreme Court of Canada provided its clear and strongly worded guidance on the principles applicable to the sentencing for all sexual offences against children. The Court emphasized the need for sentencing judges to convey a contemporary understanding of sexual violence against children: one which includes an awareness of the prevalence and role of technology in providing unprecedented access to potential victims and in which all forms of harm to a child’s personal autonomy are properly recognized: Friesen, 2020 SCC 9, at paras. 43-50.
51Friesen directs that the focus of the sentencing court must be on the sexual integrity of the victim. This approach allows for more a sensitive calculation of violations of a child’s trust, humiliation, objectification, exploitation, shame, and loss of self-esteem. Equal consideration must be given not only to physical harms, but also to immediate as well as future emotional, psychological, and relational harms: Friesen, 2020 SCC 9, paras. 51-59.
52Sentencing courts must also denounce the inherent wrongfulness of the sexual exploitation of a child precisely because of the “life-altering consequences” which can and often do flow from these offences: Woodward, 2011 ONCA 610, at para. 76; Stuckless, 2019 ONCA 504 at paras. 79, 90. Friesen mandates that sentencing courts must recognize and reflect both of these factors in their assessment of the gravity of the offence, and degree of responsibility of the offender: Friesen, 2020 SCC 9, at para. 75.
53In assessing the gravity of the offence, Friesen directs that sentences imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers and communities.
54The assessment of an offence’s gravity should give effect to these three variables:
(1) The inherent wrongfulness of the offence(s); (2) The potential harm to children that flows from the offence(s); (3) The actual harm that children suffer as a result of the offences.
55In assessing the inherent wrongfulness, as well as the consequential harms to children flowing from various forms of sexual exploitation, courts are directed to reject the belief that there is no serious harm to children in the absence of additional physical violence beyond sexual touching: Stuckless, 2019 ONCA 504, at para 69. Moreover, it is recognized that in cases such as child luring, where all of the interactions occur online, the offender’s conduct can constitute a form of sexual violence that has the potential to case serious harm: Rafiq, 2015 ONCA 768, at paras. 44-5. Sentencing judges must take into account forms of potential harm that have yet to materialize at the time of sentencing but are reasonably foreseeable consequences of the offence in the child’s future.
56The actual harm that a specific child experienced as a result of a sexual offence is a key determinant of its gravity. The “best evidence” of the harm that a child has suffered often comes directly from the child in her victim impact statement, or from those of her immediate caregivers. Courts must also consider the numerous factual circumstances which have been recognized as causing additional harm and constitute aggravating factors for sexual offences against children, such as: breach of trust, grooming, repeated instances of exploitation, and the young age of the child: Friesen, 2020 SCC 9, at para. 86.
IV. Analysis
57To arrive at a just sanction that appropriately reflects the governing sentencing principles, it is essential to consider the gravity of these offences and the level of moral blameworthiness of this particular offender.
i) Aggravating factors
58The aggravating factors in this case are numerous, interrelated and complex. In summary, they are:
(1) J.R.’s conduct involved his breach of the highest form of trust that can be invested in an adult, namely: the fiduciary duty owed by a parent to protect his or her child from any harm. The gravity of this offender’s breach of trust in this case could only be described as extreme. (2) The young victim in this case, M.G. was among a particularly vulnerable group. M.G. was a child who had been apprehended by the state and placed into protective foster care a direct result of the offender’s earlier abuse of the child’s sister, from which she was born and covertly raised by the offender under a perverse shroud of secrecy. It is difficult to imagine a child more vulnerable, and deserving of absolute protection from any form of exploitation and abuse. (3) J.R.’s previous, directly related criminal record for the sexual abuse of a child within his family. (4) J.R.’s offences occurred in direct and deliberate contravention of the terms of a family court order designed for the explicit purpose of protecting M.G. from the one remaining risk of harm which he was in a position to cause her: unlawful contact or communication. Beyond their short bi-weekly supervised visits, J.R. had no means to physically access or to communicate with his daughter. This limitation was the direct result of the court order which flowed from his previous sexual offending – which led to M.G. being placed into care. J.R. defied the court order and used the only available mechanism which he had to reach M.G., and to abuse her: the cellphone which he had given her, but which he knew he was strictly prohibited from using to contact her. (5) The offender’s flagrant breach of the family court order was exacerbated by extorting M.G.’s promise to keep their communication secret. J.R.’s recruitment of his victim to participate in his unlawful deception is a significantly aggravating factor. An additionally aggravating aspect of this deception was the offender’s calculated placement of the Snapchat program on the victim’s phone for his unlawful communication. The offender’s selection of this particular program, which generally does not retain copies of transmissions between users belies the offender’s transparent efforts to create a fertile opportunity for his ongoing exploitation of his child. (6) The duration of offending was prolonged. J.R.’s covert and unlawful communication with M.G. persisted for several months before she reported it to her foster mother. (7) J.R. was unrelenting in his efforts to manipulate his daughter into sending him child pornography images. The tone of his Snapchat exchanges with his daughter vacillate between the demands of a petulant child, the pleading flattery of a loving family member, and the terse demands of an angry father. The manipulations included overt inducements (new phone, and other electronics) as well disturbing emotional threats (to give her up permanently to the CAS). (8) J.R.’s manipulation of his daughter also included his calculated leveraging of M.G.’s initial transmission of images to him into his emotional demands for more. In these exchanges, J.R. deliberately preyed on his daughter’s emotions of duty, obligation and shame in an effort to receive more images of child pornography from her to fulfill his sexual gratification. (9) J.R.’s luring and extortion of his victim resulted in her production and transmission of self-exploitative images. The production of child pornography traumatizes children and violates their dignity by treating them as sexual objects, thereby causing them harm that may stay with them for their entire lifetime: Sharpe, 2001 SCC 2, at paras. 92, 185. This particular harm begins at the moment of the request or direction for images is received – at which point the child has already been sexually objectified by the offender, whether or not the abusive depiction is ever captured. Where such depictions are ultimately created, or distributed, the degree of harm to the child increases exponentially. Our Court of Appeal has emphasized that the online exploitation of a child to produce made-to-order child pornography is a significant aggravating factor for the offence of luring: Rafiq, 2015 ONCA 768, [2015] O.J. No. 5878 (C.A.) at para. 45; R. v. Jarvis (2006), at para. 31; R. v. R.B., 2014 ONCA 840, at para. 10. I acknowledge that J.R. was not convicted for the offence of possessing child pornography images, and recognize that the sentence imposed for his offences must reflect this fact. (10) J.R.’s most egregious manipulation of his daughter included his threats to hurt her in the way that he knew would be the most acutely felt by her: abandonment. Having raised M.G. under a shroud of deception which kept her unaware of her own very unfortunate origins, J.R. knew that he remained M.G.’s most important and most trusted family member. He was her parent. The only parent that she had ever known. In his odious effort to break his daughter’s resistance to his demands for child pornography, he threatened to “forget it” and to leave her with the CAS forever. Still more cruelly, he taunted her to ask her CAS worker about their “secret”. J.R.’s use of this incendiary emotional reference as a mechanism of his extortion of explicit images from M.G is highly aggravating. Friesen directs sentencing courts to give weight to the offender’s “underlying attitudes” in assessing their moral blameworthiness: Friesen, 2020 SCC 9, at para 89. (11) Finally, and perhaps most notably, J.R.’s offences inflicted catastrophic harm to his victim, as well as to the community, on both an immediate and long-term basis. His profound breach of trust has left the victim doubting that the concept of trust even exists. In her words: “he’s my own father…someone who is supposed to take care of me and watch over me as a guardian”. J.R. denied M.G. the protection and love owed to her by either a father or mother. In his case, J.R. shamelessly used his own paternal relationship with M.G. to objectify and use his daughter for his own sexual needs. At the same time, he planted a warped narrative in M.G.’s mind about her “sister” in order to deny her any hope of a loving attachment to her real mother. His actions permanently distorted M.G.’s experience of both of these relationships. They also resulted in M.G.’s apprehension, making her a permanent child of “the system,” one which has been recognized as leading to unique vulnerability.
ii) Mitigating circumstances
59There are few, if any, mitigating circumstances. J.R. enjoys the support of his partner and has regular employment. Otherwise, he remains in total denial that he poses a harm to M.G. or to any child. He was found guilty of these offences after trial.
V. Conclusion
60The penalty imposed on J.R. must be reflective of the devastation which he alone is responsible to causing to his daughter M.G. as well as for the collateral damage to her family and to the community for his repeated predation of vulnerable children within his care.
61Mr. Alexander submitted that a lengthy period of incarceration would be difficult for J.R., owing to his anxiety and other health concerns. The Ontario Court of Appeal has repeatedly mandated that the primary concern or focus in the sentencing of those who offend sexually against children is the harm caused by their exploitation. In R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 at para. 76, Justice Moldaver directed that:
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. (emphasis added)
62I have carefully considered all of J.R.’s personal characteristics when assessing the impact that a lengthy sentence of incarceration will have on him and his potential for rehabilitation. I likewise acknowledge that although this is not J.R.’s first conviction, the sentence imposed here will be his first significant sentence of imprisonment, and that it is one which is being imposed during the COVID-19 pandemic. The sentence which I am about to impose has been attenuated in recognition of these factors.
63However, I must also consider the countervailing concern that he is a repeat sexual predator who remains in denial of any sexual attraction to children, notwithstanding his having been convicted of sexually exploiting his daughter/granddaughter who was removed from his care as a direct result of his previous sexual abuse of her sister/mother. I acknowledge that this sentencing is constrained to consideration only of the recent offences of unlawful communication against M.G., and not to his past conduct with P.G. for which he has already served his sentence. There can and will be no “double counting” of the past offences in the calculation of sentence. J.R.’s relationship with his present victim, however, is irretrievably connected to that earlier incident, and this history necessarily colours the factual matrix of the index offences.
64J.R. breached the most important fiduciary relationship of trust: the duty of protection owed by a parent to his/her child. The instant case represents his second such successive breach. His moral blameworthiness is extremely high. J.R. poses a clear danger to all children. He must be separated from society for a significant period of time to protect the well-being of his own children, as well as all children in the community.
65In R. v. D.G.F., 2010 ONCA 27, at para 27, the Court of Appeal explicitly cautioned that the principle of totality should not operate to constrain the imposition of significant sentences of imprisonment for multiple offences, in circumstances where the overall gravity of the offending conduct demands it:
although the totality principle must always be considered when sentencing for multiple offences, the sentence imposed cannot thereby become inadequate to properly recognize the overall gravity of this conduct that victimizes children in the most horrendous ways.
66Viewed as a whole, this crime was complex and the offender’s moral blameworthiness was extremely high. The offence of child luring here represents conduct at the most serious end of the spectrum. The victim was an especially vulnerable member of the offender’s own family. J.R. used the only available mechanism he had to reach his child – the internet – in his unrelenting effort to systematically exploit her in direct contravention of the orders he knew were designed to protect her from precisely this harm. J.R. was previously convicted for contact sexual offences against another of his children. The luring was closely connected with the offence of extortion, which included uniquely pernicious forms of manipulation.
67The Supreme Court has made it clear that sentencing courts can and sometimes need to depart from prior precedents and sentencing ranges in order to impose an appropriate sentence: Friesen, 2020 SCC 9, at para. 108; Lacasse, 2015 SCC 64, at paras 62-64 and 74. Sentencing imposed for sexual offences against children must correspond with Parliament’s legislative initiatives reflected in their successive increases of available penalties, as well as with the contemporary understanding of the profound harm that the sexual exploitation of children causes, in all of its hurtful forms.
68None of the sentencing authorities provided by either the defence or the Crown capture the multitude of highly aggravating factors applicable in J.R.’s case. The range of sentence identified in these cases for the offence of luring generally range between 12 months and 3 years’ imprisonment. Higher penitentiary sentences in the range of 4.5 to 6.5 years were imposed in cases which included real victims and the commission of additional offences, including child pornography and contact offences. See list of cases considered in footnote 8.
69While there is no available sentencing precedent which offers parity to J.R.’s personal and offending circumstances, the principles emanating from these cases and from the clear instruction from the Supreme court in Friesen compel the imposition of a significant penitentiary sentence at the higher end of this range in order to properly reflect the principles of denunciation and deterrence.
70Having considered all of the aggravating and mitigating circumstances in this case, I have concluded that the appropriate sentence for J.R.’s commission of the offence of luring is one of five years’ imprisonment. J.R.’s covert prolonged online predation of his own particularly vulnerable child while she was in foster care far exceeds the gravity of other examples of sexual exploitation by adults of children who were previously unknown to them, and whom they might never meet. J.R.’s manipulation of M.G. represents a devastating breach of trust of his paternal duty of care to his child and merits an exemplary sentence which is commensurate with the wrongfulness of his conduct as well as the gross interference with M.G.’s sexual dignity.
71For the offence of extortion, J.R. is sentenced to 18 months’ imprisonment, to be served concurrently. I accept the defence’s submission that these two acts were so closely linked by a legal and factual nexus that they amount to a “single criminal transaction”: Hems, 2019 ONCJ 779, at para. 46, for which concurrent sentences are warranted. J.R.’s sentence for extortion accounts for the significant psychological and emotional damage caused to M.G. by his perverse threats of her abandonment as part of his offending behaviour.
72The ancillary orders sought by the Crown are each granted.
73There will be a lifetime SOIRA order; an order for the offender’s DNA (primary), a weapons prohibition under s. 109; and a non-communication order pursuant to s. 743.21.
Released: January 11, 2021 Signed: Justice A. Dellandrea
