ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
LEONARD RAZON
Before Justice S. W. Konyer
Heard on March 2, October 22 & November 16, 2021
Reasons for Judgment released on December 1, 2021
Mr. K. Doyle ........................................................................................ counsel for the Crown
Mr. J. Neuberger .............................................. counsel for the accused Leonard Razon
KONYER J.:
1Leonard Razon pled guilty on March 2, 2021 to one count of communicating with a person he believed was under the age of 16 years for the purpose of facilitating the offence of sexual interference [child luring], and one count of possession of child pornography, contrary to s.172.1(1)(b) and 163.1(4) of the Criminal Code, respectively. The Crown proceeded by indictment. Each offence carries a mandatory minimum punishment of one year imprisonment.
2Mr. Razon has brought a constitutional challenge to the mandatory minimum punishments, arguing that his right to be secure from cruel and unusual punishment as guaranteed by s.12 of the Canadian Charter of Rights and Freedoms would be infringed if the mandatory minimums were applied in his case. He seeks an order declaring the mandatory minimum punishments to be unconstitutional in his case, and seeks a conditional sentence of two years less a day plus three years probation. The Crown argues that the appropriate global sentence in this case is one of three years jail, thus rendering the constitutional issues moot.
3The parties are in agreement on the law. Section 12 of the Charter protects only against mandatory minimum sentences that are grossly disproportionate, not mandatory minimums that would result in merely excessive sentences. The following two-part test was set out by the Supreme Court of Canada in R. v. Nur, 2015 SCC 15 for dealing with claims that a mandatory minimum sentence infringes s.12:
First, I should determine what the appropriate sentence is for Mr. Razon without regard to the mandatory minimum and applying the usual sentencing principles.
Second, I should ask whether the mandatory minimum requires the imposition of a sentence that is grossly disproportionate, either for Mr. Razon or a reasonably foreseeable hypothetical offender.
4If the mandatory minimum is grossly disproportionate in the case of either Mr. Razon or in the case of a reasonable hypothetical, then it infringes s.12 and ought not to apply unless the provision is justified under s.1 of the Charter.
5The Crown argues that the first step of the Nur analysis will demonstrate that the appropriate sentence for Mr. Razon for each offence exceeds the mandatory minimum. Sentencing judges have been discouraged by the Supreme Court from considering constitutional arguments that would not affect the ultimate sentence, as “judicial economy dictates that judges should not squander time and resources on matters they need not decide”: R. v. Lloyd, 2016 SCC 13, at para. 18. In other words, unless I conclude that the appropriate sentence for Mr. Razon is less than the mandatory minimum it is pointless to go on to consider whether the mandatory minimum would be infringed in the case of a reasonably hypothetical offender, for this will not change the result for Mr. Razon.
6I agree with this approach. I will therefore first determine the appropriate sentences for Mr. Razon. The sentences must each be proportionate to the gravity of the offence and the degree of responsibility of Mr. Razon for committing each offence. I will begin by setting out the facts of the case, which will allow me to assess the seriousness of each offence. I will then set out Mr. Razon’s personal circumstances in order to assess his level of responsibility. I will then review the applicable sentencing principles in order to determine the appropriate sentence for each offence. If necessary, I will then go on to consider the constitutional issues raised by Mr. Razon.
Summary of the Facts
7On August 17, 2019, Detective Constable Perks of the Peterborough Police Service was operating in an undercover capacity in an internet chat room known as “Teen Chat”. She had grounds to believe the chat room was used by adult males seeking contact with young girls, and she was posing as a 14 year old female with the username “Abby”. She encountered a user with the name “Leo602” and initiated a conversation with him. “Leo602” was Mr. Razon. He told her that he was 20, lived in Scarborough and that his first name was Leonard. She told him that she was 14, and he quickly turned the conversation to sexual topics, asking if she was a virgin and how many penises she had seen. He then provided her with his Skype account in the name of Leonard Razon, where they continued their conversations.
8The Skype chats between Mr. Razon and “Abby” lasted for about two weeks. These chats were very sexual in nature. Mr. Razon offered to share pornography with “Abby”, sent her a photo of his penis, and repeatedly asked her to send him photos of her body. He asked “Abby” if she had any siblings, and when told that she had an 11 year old brother he tried to entice her to touch her brother’s penis and send him photos and videos of that act. He suggested that he and “Abby” could engage in a variety of sexual acts, some of which included her brother. He offered to send her a video showing a young girl touching her brother’s penis. At one point he asked “Abby” if she would be his girlfriend. He told her that his penis was small, which would make it easier for them to engage in sexual acts. He told her that he would be turning 21 in September, that he too was a virgin, and that he spends his free time playing video games and masturbating.
9After discussing sexual acts he would like to perform with her, he asked her where they could meet. He wrote “we should do it at ur place and include ur bro”.1 He also told her that he did not drive and was unable to get to Peterborough. It appears as though Mr. Razon’s main interest was in using “Abby” to manufacture child pornography for him. He told her that he acquired the video discussed above from someone else that he had met online.
10The last Skype communication from Mr. Razon to “Abby” occurred on August 23, 2019. She sent him further Skype messages but he never replied. Then DC Perks located a Facebook profile in the name of Leonard Razon on August 29 and sent him a friend request. His profile included biographical details, including that he lived in Toronto and attended Centennial College. After she introduced herself again on Facebook, he quickly began pressing her to send him photos. When she resisted and said that she had only seen a photo of his penis, he immediately sent her a photo of his face. She continued to deflect his requests for photos of herself. She confirmed a good deal of biographical information, including his surname, date of birth, and what each of his parents did for work. “Abby” invited him numerous times to “chill” with her, but he repeatedly told her that he was unable to get to Peterborough. He continued to discuss a variety of sexual acts that he would like to perform with “Abby”, her brother and cousins if they ever did meet, but no concrete plans were ever made for a meeting.
11Mr. Razon was arrested on September 20, 2019 after police obtained a search warrant for his residence. They determined his address based on the biographical details he disclosed to “Abby”. The police also seized several electronic devices. These were found to contain a total of 407 video files and 2967 image files that met the definition of child pornography. The majority depicted both male and female prepubescent children engaged in sexually explicit acts with adults. A large portion of the material depicts young male children engaged in sexually explicit acts with female children and female adults. The ages of the children range from infants to 10 years.
12Following his arrest, Mr. Razon was interviewed by DC Perks and provided an inculpatory statement. He admitted that he was the person who had been communicating with “Abby” and his facial appearance matched the photo that he had sent to her. He told DC Perks that he had begun viewing child pornography in high school, and that he had amassed his collection from chat sites and through trading it. He also described tools that he used to search for and download child pornography. He also said “I talk to people online and like it’s just a fantasy in my head I didn’t actually go and do something.”2
The seriousness of child sexual offences generally
13The protection of children from sexual exploitation and the resulting harm is the overarching objective of the Criminal Code provisions that target sexual offences against children. Judges are required to give paramount consideration to principles of denunciation and deterrence when sentencing adult offenders who have committed this type of offence. Children are uniquely vulnerable to exploitation, and incapable of defending themselves against sexual predators. It is now well understood that real harms always flow from the sexual abuse of children, and that these harms are often profound and life-altering, both for victims and their loved ones.
14In R. v. Friesen, 2020 SCC 9, the Supreme Court reminded sentencing judges of the need send a “strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families and communities.”3 The court went on to state that “it is not sufficient for courts to simply state that sexual offences against children are serious. The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers, and communities.”4 The court went on to state that it is the duty of sentencing judges to give effect to the will of Parliament “to protect children from sexual violence, to hold perpetrators accountable, and to communicate the wrongfulness of sexual violence against children.”5
The seriousness of the child luring offence in this case
15Child luring is a preparatory offence, and can capture a wide array of conduct. The harm that these provisions target is “the very real threat posed by adult predators who attempt to groom or lure children by electronic means.”6 The guidance provided by the Supreme Court in Friesen applies not only to “hands on” offences, but to all sexual crimes against children, including child luring.7
16On the facts of Mr. Razon’s case, there is little realistic chance that he would have actually met with “Abby” to fulfill his expressed sexual desires. Mr. Razon was an isolated young man with significant social limitations who lived with strict and protective parents. He repeatedly rebuffed efforts by “Abby” to formulate a plan to meet in person. Nevertheless, he repeatedly tried to entice “Abby” to send him intimate photos of herself, to engage in sexual acts with other children, and to send him images of these acts. These were not simple fantasies, as demonstrated by his extensive collection of child pornography, some of which had been acquired through online trading. The risk he posed to children of sexual exploitation through online luring was real, and the harm that could have occurred was profound. Capturing intimate images of children, preserved forever online, would have resulted in the sort of profound life-altering harm that is the target of this provision. Therefore, it is apparent that the luring offence in this case is very serious.
The seriousness of the child pornography offence in this case
17The possession of child pornography is not a victimless crime. Every image of child pornography preserves an instance of sexual violence inflicted upon an actual child victim. Collectors of child pornography create a marketplace for this reprehensible material, and thereby facilitate the profound harm inflicted upon the victims who are depicted in these images and videos. Accordingly, they bear responsibility along with the creators of these materials for those harms.
18For these reasons, the possession of child pornography constitutes child sexual abuse. As the Ontario Court of Appeal has said, “the children depicted in pornographic images are re-victimized each time the images are viewed.”8 Mr. Razon possessed thousands of images and videos of child sexual abuse. He had been amassing and viewing these materials for years. Understood in this context, Mr. Razon shares responsibility for the sexual exploitation, humiliation and degradation of thousands of children.
19Further, he offered to share a video depicting acts of incest between two young children to “Abby”, and tried to persuade her to produce and share similar material with him. On his own admission, he traded child pornography with others in order to increase his collection. For all of these reasons, the child pornography possession offence in this case is also very serious.
Mr. Razon’s level of responsibility
20Mr. Razon turned 21 during the course of his online communications with DC Perks. He has no prior criminal record. I was provided with a psychiatric assessment authored by Dr. Julian Gojer, a forensic psychiatrist with vast experience in treating sexual offenders. His impressive qualifications were unchallenged. Dr. Gojer also testified at the sentencing hearing. Dr. Gojer has been involved for many years in the treatment of sex offenders in Ontario, both in and out of custody. He has been instrumental in designing programming for sex offenders both in custodial settings and in the community through probation and parole services.
21In order to prepare his report, Dr. Gojer reviewed police reports relating to this investigation, copies of the chats between Mr. Razon and DC Perks, a description of the images of child pornography, as well as previous psychoeducational assessments of Mr. Razon. He also interviewed Mr. Razon on several occasions, and interviewed his parents. Mr. Razon also attended 46 hours of group therapy with Dr. Gojer, which were conducted online due to the current pandemic. He also referred Mr. Razon to an associate, Dr. Monik Kalia, a psychologist. As of March 2021 she had engaged in 27 one-on-one counseling sessions with Mr. Razon, and she prepared a report which was reviewed by Dr. Gojer and quoted extensively in his assessment report.
22I am satisfied based on Dr. Gojer’s report and testimony that Mr. Razon suffers from both pedophilia and an Autism Spectrum Disorder (ASD). He was challenged in cross-examination on his diagnosis of ASD but remained steadfast. His evidence on this point was uncontroverted. He adequately explained how a previous finding made during the course of a psychoeducational assessment that Mr. Razon suffered from Pervasive Developmental Disorder – Not Otherwise Specified was not inconsistent with the current diagnosis of Autism Spectrum Disorder. Both pedophilia and ASD are static conditions that will not change. What I must assess is how these conditions impact Mr. Razon’s degree of responsibility for committing these offences.
23Dr. Gojer explained his findings as follows:
From the history and the observations of Mr. Razon, he is suffering from an Autism Spectrum Disorder. This is a neurodevelopmental disorder that affects multiple areas of a person’s functioning, most notably language, communication, emotionality and socialization. In many of these areas of his development, Mr. Razon has had deficits. Mr. Razon has a stunted emotional and social understanding of his conduct although accepting of its wrongfulness. Due to his diagnosis, his emotional and social deficits also manifest in Mr. Razon as a much younger individual than his actual age. His emotional and social intelligence has not developed, and he operates much like a young adolescent. In addition, he has suffered from a learning disability. He also has a Social Anxiety Disorder. He has a problem with pedophilia that has been limited to pornography and internet chats.9
24In my view, much of Mr. Razon’s behaviour appears to be consistent with Dr. Gojer’s findings. Mr. Razon was shockingly naïve for an adult engaged in child luring by openly sharing personal information including his name, date of birth, the location of his home, the name of his school and a photo of his face. He also appeared to be more interested in acting out sexual fantasies online than in person – for example he repeatedly demurred when offered opportunities to set up in person meetings while continually pressing “Abby” to send him photos of herself and her brother. His main interest appears to have been to act as an online voyeur rather than a hands-on offender. This does not detract from the seriousness of the offences – after all he was trying to entice “Abby” to engage in sexual acts with an even younger child, record the activity, and distribute the resulting child pornography. Had he engaged in this behaviour with a real child, he could have caused incredible harm. Nevertheless, I agree with Dr. Gojer’s assessment that the nature of his offending behaviour suggests that Mr. Razon bore a diminished appreciation of the wrongfulness of his actions.
25Dr. Gojer details in his report the extensive programming that has been undertaken in order to correct Mr. Razon’s cognitive distortions. As he writes, “individuals diagnosed with ASD have difficulty understanding abstract concepts, complex emotional reactions and issues like empathy and perspective taking.”10 He is also very socially isolated both as a result of his ASD symptoms and his overprotective parents, which provides context for his online offending. While none of these factors excuse Mr. Razon’s conduct, they do place it in context and suggest a diminished level of moral responsibility.
26At the same time, Mr. Razon is not unintelligent. He completed high school and successfully enrolled in a post-secondary program just prior to his arrest. The fact that he kept his child pornography collection and online activities a secret from his parents and siblings demonstrates that he certainly understood that his conduct was wrong. I agree with the Crown that it would be wrong to simply infer from the fact that Mr. Razon suffers from ASD that he is incapable of fully appreciating the wrongfulness of his conduct. However, that is not what I am being asked to infer. Rather, the argument is that the diagnoses of pedophilia and ASD together explain why Mr. Razon offended in these manners. His conduct is not excused for this reason, as he still appreciated that his actions were wrong; but on a scale, he bears less responsibility than someone who commits the same offences without suffering from the same diagnoses. On the whole of the evidence before me, therefore, I find that Mr. Razon’s level of moral responsibility for his conduct is significantly reduced owing to his particular psychological deficits.
27Having assessed the seriousness of these offences and Mr. Razon’s level of responsibility, I must now determine the appropriate range of sentence without regard to the mandatory minimums.
The appropriate sentence without regard to the mandatory minimums
28Denunciation and deterrence are the paramount sentencing considerations in all cases involving sexual offences against children, including possession of child pornography and luring cases involving undercover sting operations. Parity, rehabilitation and restraint remain important, though secondary, considerations.
29The Crown also argues that s.718.3(7) applies and requires that the sentences be consecutive. I disagree, for the reasons expressed by Rahman J in R. v. Freeman, [2019] O.J. No. 5232, at paras. 26-3511. The section in question requires the imposition of consecutive sentences where an offender is sentenced for both a child pornography offence and another sexual offence “committed against a child”, which I conclude means a real and not a fictional child. Therefore, I am not bound to impose consecutive sentences.
30This does not necessarily mean that consecutive sentences are inappropriate in the circumstances of this case. Each offence has distinct elements. While the luring offence occurred over a number of weeks in the late summer of 2019, Mr. Razon amassed his significant collection of child pornography over the preceding several years. At the same time, it is not unreasonable to view Mr. Razon’s course of conduct towards the undercover officer as a manifestation of his interest in child pornography. Ultimately, the question of whether the sentences should be concurrent or consecutive should be decided by first determining the fit length of sentence overall. The individual sentences can then be apportioned so as to fit within the overall length of sentence: see R. v. Stuckless, [2019] O.J. No. 3210 (C.A.), at paras. 78-80.
31There are clearly many aggravating factors present here. Both offences are the product of an ongoing course of conduct, and not momentary errors in judgment. The size and nature of the child pornography collection are seriously aggravating. The steps taken by Mr. Razon to entice “Abby” into committing sexual offences with a younger child, and then to record and disseminate that material, is highly aggravating. The fact that Mr. Razon distributed, in the course of the luring offence, both adult and child pornography to a person he believed was a 14 year old child is aggravating.
32There are also many mitigating factors present. Mr. Razon pled guilty and accepted responsibility for his conduct, thereby saving the court resources that would otherwise have been spent trying his case. He made the decision to plead guilty in the midst of a global pandemic when the court’s resources have been particularly strained. He is entitled to substantial credit for his guilty plea in those circumstances.
33Mr. Razon is also a youthful first offender with significant developmental delays. He has a loving and supportive family, was enrolled in college and has real potential. He engaged in a meaningful course of programming and counseling to address his offending behaviour. He has complied with conditions of release for an extended period of time without incident.
34Dr. Gojer, who has vast experience treating sexual offenders both in custody and in the community, explained in his testimony that incarceration would likely interfere with Mr. Razon’s rehabilitation. His intensive individual needs simply cannot be met either within the reformatory or penitentiary. He presents as low risk to offend in a hands-on manner against a child, and the best opportunity for meaningful intervention is while Mr. Razon is a young man. He has already engaged in a significant amount of programming which will be interrupted if he is incarcerated. From a rehabilitative perspective, Dr. Gojer was firmly of the view that incarceration would be detrimental for Mr. Razon. He also offered the opinion that Mr. Razon would be vulnerable within a prison setting given his developmental delays and social limitations.
35Despite Mr. Razon’s sympathetic circumstances and the rehabilitative efforts he has undertaken, I must not lose sight of the fact that denunciation and deterrence are the predominant objectives of the sentence I must impose. It is necessary in this case to impose a harsh sentence that adequately denounces Mr. Razon’s serious unlawful conduct, and that sends the appropriate deterrent message to him and others. I accept Dr. Gojer’s opinion that Mr. Razon would be a vulnerable inmate, and that a sentence of imprisonment would be detrimental to his rehabilitation. I also find that Mr. Razon would not pose an undue risk to the community if permitted to serve his sentence in the community. Although this case does call for the application of both punitive and rehabilitative sentencing principles, it is the punitive objectives that are dominant due to the serious harm wrought by child sexual abuse. Therefore, in my view, this is one of the rare cases where a conditional sentence of imprisonment would simply be inadequate. A conditional sentence would not properly convey society’s abhorrence of the sexual offences against children committed by Mr. Razon, nor would it properly reflect the harm done to the many victims of the child pornography offence. Despite his significantly reduced level of responsibility for committing these offences, I nevertheless find that a period of incarceration is required. However, Mr. Razon’s diminished level of responsibility, his personal circumstances and the application of the principle of restraint persuade me that a global sentence of 18 months imprisonment is fit. The sentence for each offence should be 18 months so as not to diminish the seriousness of either offence. In order to achieve a fit global sentence, the sentences for each offence will run concurrently.
Conclusion
36The Charter challenge is moot, as I have determined that the appropriate sentence for each offence in Mr. Razon’s case exceeds the mandatory minimum sentence. In the interest of judicial economy, I decline to decide whether the mandatory minimums would infringe s.12 in the case of a reasonable hypothetical. I am aware that in R. v. John, 2018 ONCA 702, the Court of Appeal found that the former 6 month mandatory minimum sentence for possession of child pornography infringed s.12 of the Charter on the basis of a reasonable hypothetical. The court also held, at para. 41, that “[t]he mandatory minimum is entirely unnecessary” because of the primary importance of the principles of denunciation and deterrence. In Mr. Razon’s case, I also conclude that the mandatory minimum sentence is unnecessary for the same reason.
37The sentence for the child luring offence is 18 months jail. The sentence for the child pornography offence is 18 months jail, to be served concurrently. I recommend that Mr. Razon serve his sentence at the St. Lawrence Valley Treatment Centre where he can receive offender specific treatment.
38The jail sentence will be followed by a period of three years probation. In addition to the statutory terms, he is required to report to a probation officer, cooperate and sign all necessary releases, and to attend for assessments, counseling and rehabilitative programming for sexual offending. The order will be prepared using the standard wording for these terms.
39The Crown’s application for a DNA order is granted on each offence. On the luring offence, there will be a s.109 weapons prohibition order in the usual wording for a period of 10 years and life. He is ordered to comply with the requirements of the Sex Offender Information Registration Act for life.
40The parties agree that it is appropriate here to make 10 year prohibition orders pursuant to paragraphs 161(1)(a), (b), (c), and (d) of the Criminal Code. They have agreed upon wording for the internet prohibition order that strikes the appropriate balance between the need to protect the public and Mr. Razon’s rehabilitative needs. Those orders will be made. For the sake of clarity, the s.161(1)(d) order is as follows. Mr. Razon is prohibited from using the internet or other digital network, except in accordance with the following terms:
You may possess an internet capable device and use it to access the internet in accordance with the conditions below; however, you must do so on a device for which you are the sole owner and user. Further, the internet service must be in your own name or else provided through your employer or the education institution you are attending, if applicable.
You may not access the internet using public wi-fi services, internet cafes, or via shared public computers (e.g. computers at a public library).
You shall not use any encryption software or security program designed to prevent access to the contents of your internet capable devices or take independent action to encrypt any digital storage devices in your possession. You shall not install or permit to be installed on your internet capable device any software or service designed to defeat forensic analysis of the internet capable device.
You shall not use or permit to be installed on any device in your possession any program or service designed to allow anonymous use of the internet (e.g. TOR browser).
You shall not use or permit to be installed on any device in your possession any scrubbing software or software that saves files in an encrypted fashion.
You are not to directly or indirectly access any Peer-to-peer file sharing networks (including but not limited to “kik” “discord” “Pinterest” “Skype” “motherless”, “LimeWire”, “gnutella”, “bearshare”).
You are not to use any telecommunication device to access the Internet or other digital network in order to possess or access content that violates the law.
41The victim surcharges totalling $400 apply. Given the length of the jail sentence I have imposed, Mr. Razon has 3 years to pay.
42I wish to thank both counsel for the focussed and professional manner in which they dealt with this matter.
Released: December 1, 2021
Signed: Justice S. W. Konyer
Footnotes
- Exhibit 2, Skype messages, at p. 29
- Exhibit 5, Transcript of Mr. Razon’s statement to DC Perks, p. 29
- R. v. Friesen, 2020 SCC 9, at para. 5
- Friesen, supra, at para. 76.
- Friesen, supra, at para. 45.
- R. v. Morrison, 2019 SCC 15, at para. 153.
- Friesen, supra, at para. 90.
- R. v. Inksetter, 2018 ONCA 474, at para. 22
- Psychiatric assessment prepared by Dr. Julian Gojer, Sentencing Exhibit 11, at p. 26
- Ibid., at p. 24.
- The same reasoning was also endorsed in R. v. Moore, [2021] O.J. No. 1725, at paras. 58-9
