minicounsel

DATE: March 11, 2022 Information No. 20-966

HER MAJESTY THE QUEEN v. JARED GOULD

REMOTELY BEFORE THE HONOURABLE JUSTICE S.N. LATIMER on March 11, 2022, for a BURLINGTON, Ontario proceeding.

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION PURSUANT TO SECTION 486.4(1) OF THE CRIMINAL CODE OF CANADA

Ontario Court of Justice DATED October 12, 2020

APPEARANCES: R. Morrow Counsel for the Crown B. Daley Counsel for Jared Gould

LATIMER J. (Orally)

Introduction

These are my reasons for sentence in Jared Gould’s matter. I should say this is approximately half an hour, I would estimate these reasons will take.

He has pleaded guilty to three counts of child luring and one count of inviting someone under the age of 16 to touch themself sexually. The Crown has proceeded by indictment.

The sentence hearing has largely proceeded in two stages. First, counsel for Mr. Gould brought a constitutional challenge to the current one-year mandatory minimum jail sentence for the luring offence on the basis that it would be grossly disproportionate towards a reasonable hypothetical offender. The applicant’s argument is strengthened considerably by a series of recent Superior Court decisions that have found this particular provision unconstitutional and therefore inoperative.

Success on the first stage of the hearing permits Mr. Gould the ability to submit that an appropriate sentence in his circumstances is a conditional sentence. Mr. Daley, on behalf of Mr. Gould, pointed to his guilty plea, his remorse, and mental health considerations as a legitimate basis to temper concern for deterrence and denunciation and ultimately impose a conditional sentence of sufficient length to balance all of the competing sentencing principles

Mr. Morrow, on behalf of the Crown, seeks and 18- month jail sentence, pointing to the repetitive nature of Mr. Gould’s conduct, the fact that it occurred while he was on probation for indecent exposure, and recent direction from the higher courts in our country for sentencing judges to place significant emphasis on principles of deterrence and denunciation. Mr. Morrow submits as well that specific deterrence is a live feature at this proceeding.

The Constitutional Challenge

With regard to the constitutional challenge, the Crown resists a finding that the indictable one-year mandatory minimum sentence is unconstitutional and, as such, stresses is that a conditional sentence is statutorily unavailable. In doing so, Mr. Morrow has made a submission regarding the analytical route a reasonable hypothetical should follow and points to the Superior Court judges’ failure to follow this approach as proof that their decisions are plainly wrong should not be followed.

I propose to deal with this issue in a somewhat expedited manner. The Crown’s argument is that a reasonable hypothetical in a given case should track the same secondary offence as the one facilitated in the case before the Court because s. 172.1(1) categorizes secondary offences under subsections a, b, and c.

It is submitted that there are differing levels of moral culpability between these subsections and a reasonable hypothetical should only focus on the same secondary offence that the applicant's conduct facilitated. This argument, while thoughtful, is not novel. It was made by the Crown appellant in the Morrison decision in 2019, in the Supreme Court of Canada. (See the appellant’s factum, which is available online on the Supreme Court’s website). It was not, however, addressed by any of the opinions of the judges of that court. Upon deliberation, I am not satisfied that this submission renders any of the prior decisions plainly wrong. I say so for the following reasons:

1The secondary offences facilitated by Mr. Gould are all found in subsections a, and b. These same subsections were discussed and engaged with by Justice De Sa in C.D.R. 2020 ONSC 645, Justice Leibovich in Faroughi, 2020 ONSC 780 and Justice Boswell in Sinnappillai, 2020 ONSC 780 albeit without express reference to the Brown decision relied upon in the Crown’s argument in the case at bar.

2In Cowell, 2019 ONCA 972, Justice Trotter’s minority opinion implicitly rejects this subsection specific approach to reasonable hypotheticals. For example, at paragraph 104, he writes,

However, I agree...that the mandatory minimum sentence in 172.1(2)(a) must be declared unconstitutional based on its application in reasonably foreseeable circumstances. I acknowledge that, as Moldaver J. clarified in Morrison, convictions under s. 172.1 will always be accompanied by a high level of moral blameworthiness. However, the wide range of conduct embraced by s. 172.1(2)(a), including the varied nature of the designated secondary offences, gives rise to situations in which the imposition of the one-year mandatory minimum sentence would be grossly disproportionate. Although these “outlier” cases are not likely to occur or to be prosecuted with great frequency, they are nevertheless reasonably foreseeable and demonstrate that in some cases, the mandatory minimum sentence in s. 172.1(2)(a) is grossly disproportionate.

Justice Trotter’s reference to “the varied nature of the designated secondary offences” is at odds with the respondent’s position before me. Ultimately, the applicant's legal argument finds formidable support in the recent Superior Court authorities, that is the three cases I referred to a moment ago, as well as Justice Davies decision in a case called Mootoo, 2022 ONSC 384. I have not been convinced that these judgments are plainly wrong and I consider myself bound by them.

I will proceed on the basis that there is no applicable mandatory minimum sentence available with respect to the luring counts.

While the fourth count Mr. Gould has pled to, s. 152, equally has a one-year statutory minimum sentence, I am prepared to follow the same approach Justice Davies had in Mootoo and hold that the prior authorities she lists in paragraph 23 of her judgment are not plainly wrong and therefore applicable. In the result, I am satisfied Mr. Daley has convinced me that there is no operative mandatory minimum sentence of any sort in Mr. Gould’s case.

This finding, along with the Court of Appeal’s recent decision in a case called Sharma, 2020 ONCA 478 make a conditional sentence statutorily available provided I am satisfied that an appropriate sentence is under two years; that Mr. Gould would follow a conditional sentence order; and that such a sentence would be consistent with the principles of sentencing that guide sexual crimes against children.

I propose at this time to review the facts admitted in Mr. Gould’s case and then his personal circumstances before moving to a discussion the legal analysis appropriate in this case.

Facts

Mr. Gould pleaded guilty to the luring offence involving three different children, J., age 12, E., age 13, and Jas., also aged 13. He has also pleaded guilty to inviting J. to touch himself sexually, contrary to s. 152 of the Code.

With regard to J., he was a 12-year-old boy from Chicago who Mr. Gould, at the time age 20, met online through a video game. They conversed over the Xbox platform before transitioning to other social media platforms. Their conversations began about hockey before pivoting to more personal sexual discussions. Mr. Gould discussed sexual encounters he had engaged in as well as masturbation. He sent J. pornography and encouraged him to masturbate. He also, in the words of the agreed facts, “goaded” J. to take a picture of his erect penis and send it to him. J. agreed and did so. Their online contact took place for approximately seven months, between July 2018 and February 2019.

This is not the first time Mr. Gould has been before the criminal courts in Ontario. On May 17th, 2018, he pleaded guilty to indecent exposure to a person under 16 years of age contrary to s. 173(2) of the Code. He received a conditional discharge and three years of probation.

While I have not been provided the facts of this offence or the terms of probation, I am aware that the offence itself is a form of sexual offending against children. (See the Supreme Court’s decision in Friesen, 2020 SCC 9 at footnote two).

Mr. Gould was less than two months into his probationary term when he began engaging online with J.

E., the second victim, was J.’s 13-year-old friend. J. introduced Mr. Gould to E. over a social media application called House Party. They later began to interact over Snapchat. Similarly, Mr. Gould engaged in a sexualized discourse with E. and sent him a picture of a mostly naked male whom E. believed was Mr. Gould. He then asked for a similar photo from E. This led E. to block Mr. Gould online and cease all communication. Their online engagement occurred for the first two months of 2019.

I am satisfied the term “grooming” fits Mr. Gould’s conduct towards J. and E. He befriended each boy online beginning with benign conversation before moving towards increasingly sexualized and ultimately illegal behaviour. His request that the boys each send him naked photographs only occurred after a significant period of online discussion.

In a decision called R. v. A.G., 2004, 190 CCC (3d) 508, at para. 11, Justice Rosenberg writing for the Court of Appeal described grooming as “not a new concept. It is simply a compendious description of a course of conduct”.

While the particular nature of the conduct in A.G. differs from Mr. Gould’s case, I am satisfied the same descriptor applies. Had he initially asked J. to send a picture of his penis to a stranger online, I have no doubt he would have been rebuffed. It is only after months of increasingly sexual conversations that he was able to convince J. to do such a thing. It is, in large part, the mischief that the luring provisions seek to address. (See the Supreme Court’s decision in Morrison, 2019 SCC 15 at paragraph two).

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.

I have received a victim impact statement from E.’s mom. Her statement credibly documents the substantial impact Mr. Gould’s actions have had on E. and on the family unit at large. E. has been impacted socially, academically, and psychologically. He second guesses whether he can trust adults in authority, like teachers, and has gone to a counsellor to work through his trauma.

“E. cried for hours that night. He allowed us to tell his school counsellor what had happened. Over the next month he and J. missed class multiple times to go sit with the counsellor to try and process what happened and to talk about their fear and their anger. E. continued to work with the counsellor for many months. He had difficulty sleeping at night for many weeks and would wake up and tell me he had a nightmare. I found him crying on several occasions. His grades suffered that semester as he found himself unable to concentrate while studying. He said, “my mind just keeps having these thoughts pop up about it and I can’t control when they pop up”.

The third victim is Jas., a 13-year-old girl who lives locally, who Mr. Gould met in October 2018, again over an online video game. Despite knowing her age, Mr. Gould pursued a sexual relationship with Jas., sending her explicit images and video chatting with her while naked.

At his request she complied and sent nude images. She also undressed on a video chat at his urging. Their online contact extended over several months and included detailed discussions of what sexual acts they would perform together.

While the met briefly in March 2019, at a hockey game in a public setting, no physical contact took place. In May 2019, Jas.’s parents became aware of their contact and the police were notified.

Jas. has also provided an impact statement. She describes Mr. Gould as interested in “a type of relationship that she was not emotionally or physically ready for” because of her age and upbringing. She does not allege Mr. Gould made her feel uncomfortable or sexually pressured and wrote that he seemed to be accepting of her discomfort in certain aspects of their relationship when she would bring it up. The extended nature of the court proceedings have been difficult for her and the lack of closure has impacted her mental health.

“The seemingly endless nature of this legal process has been a huge burden throughout my time in high school and I would like to have the opportunity to move on and be given the mental and emotional freedom to live as I wish. I would have been able to over the recent years.”

These are the facts and circumstances relating to the offences Mr. Gould has committed. I now move to a discussion of him as an offender.

The Offender

He is presently 24 years old, having been born in February 1998. His only prior finding of guilt is the recent indecent exposure finding I earlier referred, for which he received a conditional discharge.

Mr. Gould spoke at length when given the opportunity during the sentence hearing. He expressed real insight into the impact of his offending on his victims and the pain his conduct has caused to his family. He is grateful for his family’s continued support. He describes struggling over the past eight years with low self-esteem and feelings of low self-worth and advised that he has made prior attempts on his own life. I’m advised by counsel that the most recent of these attempts occurred in 2014, pre-dating the offending before me.

While at one point he was a hockey player and an International Baccalaureate student, he links concussions he suffered with a resulting depression. He accepts that he lost sight of boundaries with his young online friends and willingly crossed lines that he now appreciates should never have been crossed. He is afraid of going to jail and points to counselling and relapse programming he has done as proof of his current rehabilitative potential. He states that he knows what he did was wrong but believes that the steps he has taken since his offending warrant a second chance.

I have not received corroborative documentation relating to some of the areas Mr. Gould touched upon in his statement to the Court. Though I am advised by both the Crown and defence that they agree that Mr. Gould has suffered a brain injury and does battle with depression and that these realities will have an impact on the particular harshness of any potential imprisonment and I accept that.

I now move to the legal analysis I am obligated to conduct.

Legal Analysis

The Criminal Code instructs that the goal of any criminal sentence is to protect society, contribute to respect for the law and help maintain a just, peaceful, and safe society. Sentencing judges attempt to achieve this goal by imposing just sanctions that address one or more of the traditional sentencing principles that are also contained in the Criminal Code. The lawyers made repeated reference to these principles during their submissions.

They include denunciation, general and specific deterrence, rehabilitation, making reparations to victims of crime and promoting a sense of responsibility in offenders and an acknowledgement of the harm that they have caused the community and specific victims in our community.

Ultimately, the fundamental principle of sentencing is to impose a sentence that is proportionate to the gravity of the offences committed and the degree of responsibility of the person who committed it. This means that for this sentence to be appropriate it must be tailored to Mr. Gould’s circumstances and the circumstances of the offences he has committed.

In determining that appropriate sentence it is helpful to consider the relevant aggravating and mitigating circumstances that are presently at play. This would include features of his background, features of the crimes he has committed, the timing of his guilty plea and any other evidence I have received. It would also include, as I will refer, legal direction, whether in the Criminal Code or provided by the higher courts, with regard to the particular aspects of this case that I am obligated to give significant consideration.

For example, the Criminal Code instructs under s. 718.01 that when sentencing someone for the abuse of a person under 18 years of age, I should give primary consideration to the objectives of denunciation and deterrence. I accept that abuse is given an expansive definition and is not simply restricted to a physical touching or some other application of force.

Canadian courts have been on a learning curve over the past 20 years when it comes to the impact of sexual offending upon children. (See R. v. D.G.F. 2010 ONCA 27, at para. 21 from the Court of Appeal, R. v. Friesen, supra at paras. 46-49, 81-2 from the Supreme Court of Canada).

The Supreme Court of Canada made the point forcefully in paragraph 82 of its recent unanimous decision in Friesen.

We would emphasize that courts should reject the belief that there is no serious harm to children in the absence of additional physical violence.

I pause to say, this submission was not made in this case. I continue.

As we have explained, any manner of physical sexual contact between an adult and a child is inherently violent and has the potential to cause harm. Even in child luring cases where all interactions occur online, the offender’s conduct can constitute a form of psychological sexual violence that has the potential to cause serious harm.

Friesen is a recent decision that has been described as a landmark decision in this particular area of criminal law. It is a unanimous decision by the highest court in Canada and it is a clarion call for sentencing courts to acknowledge our modern understanding of harm to victims in this area and the need for sentences to increase in severity alongside Parliament’s acceptance of the increased gravity of this form of offending. At paragraph 110 the Court said,

A second reason why upward departure from precedents may be required is that courts’ understanding of the gravity and harmfulness of sexual offences against children has deepened, as we have sought to explain above. As Pepall J.A. observed in Stuckless (2019), there has been a considerable evolution in Canadian society’s understanding of the gravity and harmfulness of these offences. Sentences should thus increase “as courts more fully appreciate the damage that sexual exploitation by adults causes to vulnerable, young victims”. Courts should accordingly be cautious about relying on precedents that may be “dated” and fail to reflect “society’s current awareness of the impact of sexual abuse on children”. Even more recent precedents may be treated with caution if they simply follow more dated precedents that inadequately recognize the gravity of sexual violence against children.

The Friesen decision pointedly reminds sentencing courts that Parliament’s decision to increase an offence’s maximum sentence matters in subsequent sentencings. (See paragraph 100).

To respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences. As Kasirer J.A. recognized in Rayo in the context of the offence of child luring, Parliament’s view of the increased gravity of the offence as reflected in the increase in maximum sentences should be reflected in “toughened sanctions”. Sentencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences

I am reading these passages not for the purpose of hearing my own voice, but in an attempt to place the applicant’s request for a conditional sentence in an appropriate context. The earlier authorities such as Alicandro, El-Jamel, and Folino from the Court of Appeal, two of which did impose conditional sentence, have limited application in a post-Friesen world.

The maximum sentences have increased and our understanding of the scale and scope of this form of offending and the resulting harm that it visits upon victims has substantially increased. (See tab 26 of the Crown’s material, the statistical information from Justice Canada, as well as the Woodward decision 2011 ONCA 610).

I note that while the offence patterns were different, the impact on the victim, as summarized in paragraph 77 of Woodward, is unfortunately quite similar. In Woodward a penitentiary sentence was imposed.

This in my view takes these reasons to their critical point.

Notwithstanding the recent decisions doing away with the mandatory minimum sentences in this offence category, conditional sentences are not becoming more plentiful or likely, as a result of the strong jurisprudential comments by the Court of Appeal and in particular the Supreme Court of Canada. These decisions, which underline the importance of emphasizing deterrence and denunciation in cases involving the sexual abuse of children, render the mandatory minimum sentences unnecessary. (See R. v. John 2018 ONCA 702, at para. 41 from the Court of Appeal).

This statement is as true in the luring area as it is in the child pornography context.

In concluding that I am not satisfied that a conditional sentence is appropriate in this case, I have two discrete concerns.

First, Mr. Gould’s willingness to abide by a court order in light of his quick and repeated violations of the probation order he received in May 2018. However, that is very much the lesser of my two concerns as I accept, for the most part, that present day Mr. Gould, who has expressed genuine remorse and a better understanding of the impact of his actions on others, presents as a better candidate for obedience with a future order.

However, the second concern is more profound. I am not satisfied that a conditional sentence in this case would honour the principles of sentencing that I have reviewed and am obligated to apply. I say so while noting the follow aggravating and mitigating features of this case.

First mitigating, as I’ve already said, I accept Mr. Gould’s remorse is genuine and I accept that his mindset and the counselling he has already taken make him a strong rehabilitative candidate.
I further accept that his guilty plea is deserving of mitigation in its own right. It relieves the State of the burden of trying to prove him guilty. It relieves the witnesses, two in the United States as well as Jas., from having to testify potentially more than once in open court. Jas.’s victim impact statement underlines why this would have been a trying experience. [3] I accept as well that this is a meaningful guilty plea and that the passage of time since the charge is more properly attributable to the pandemic’s impact on the court system. Throughout the extended pre- trial process in this case, Mr. Gould indicated through counsel, a consistent wish to plead guilty. I accept as well that a plea during the pandemic is meaningful as the system is tremendously backlogged with many serious cases vying for court time. [4] I accept that while I have received limited information about specifics, Mr. Gould’s mental health concerns would negatively impact his time in custody. It distinguishes him from an incarcerated individual lacking such concerns. [5] I am also prepared to accept that Mr. Gould’s mental state at the time of the offending isolated him socially and that isolation very well may have contributed to his poor decision to engage these victims in sexualized discourse and ultimately to prey upon them for naked online images and to have them engage in sexual acts in their homes. [6] I note his prior finding of guilt, which is recent and for a related sexual offence. This is aggravating. [7] I note that his pattern of offending occurred while on probation, which is another aggravating factor. [8] A further aggravating factor is the number of victims in this case and the duration of offending. These events took place over months, not hours or days as in other cases. This is also aggravating. [9] I accept that Mr. Gould’s conduct has had a significant negative impact on all three victim’s emotional and psychological well- being. (See s. 718.2(3)(i).1 of the Code and paragraph 142 of Friesen). Sexual offending is an insidious crime that can impact the spirit as well the body. E.’s mom’s statement in particular documents that reality.

For all of these reasons, I am not satisfied that a conditional sentence is an appropriate sentence or one that meets the post-Sharma statutory prerequisites remaining in s. 742.1 of the Criminal Code.

As I have tried to explain in these reasons, while Mr. Gould as a person is an important focus in this hearing, he is not its exclusive focus. (See the Rafiq decision 2015 ONCA 768 at paras. 50 through 54).

His acknowledgement of the pain and suffering he caused is important but it does not fully attenuate the impact of that offending when viewed through the appropriate lens. The primary sentencing objectives remain, denunciation and deterrence. I am obligated to denunciate Mr. Gould’s conduct and try to ensure that others do not repeat it.

I also have a lurking concern that, notwithstanding his statements in court, specific deterrence remains to some degree a factor for me to address as this offending occurred so close on the heels of his prior finding of guilt. For all of these reasons I remove a conditional sentence from consideration in determining an appropriate sentence.

I next have to determine the appropriate length of sentence in Mr. Gould’s case. The parties have provided me a great number of cases to consider. There is something called the parity principle, meaning that a sentence should be similar to a sentences imposed on similar offenders, for similar offences, committed in similar circumstances. (See s. 718.2(b) of the Code).

This principle promotes fairness and the equal treatment of all offenders, according to law. A compelling similar precedent in this case is the Court of Appeal’s ruling in Rafiq.

Mr. Rafiq pleaded guilty to luring in factual circumstances that are very similar to what occurred here. In that case there was one victim who was convinced to send Mr. Rafiq 38 naked images. In Mr. Gould’s case there are a greater number of victims, but fortunately less intimate images shared.

The trial judge in Rafiq imposed a two-year conditional sentence, focussing on Mr. Rafiq’s positive rehabilitative potential. It is notable that Mr. Rafiq was described by the sentencing judge in a very similar manner to Mr. Gould. He had pled guilty. He was sincerely remorseful and his plea spared the victim from having to testify. He had no prior criminal record and he had a strong employment history. He had received counselling and - a feature absent before me – presented an expert psychiatric report establishing that he was of negligible risk of committing future offences.

Despite all of these mitigating features, when the Crown appealed that ruling to the higher court, the Court of Appeal overturned the sentencing judge’s decision, ruling that her sentence focussed too much on Mr. Rafiq’s circumstances and too little on the impact of his offending on others, including the victim. At paragraph 52 Justice Strathy, the Chief Justice of Ontario, said as follows:

...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 [jail] 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.

A jail sentence of two years was imposed by the Court of Appeal.

In Mr. Gould’s case the Crown recommendation of 18 months is more than justified. I have come to that conclusion having considered all of the other sentencing cases both parties have provided to me. I do not see the need at this point to expressly refer to additional cases in these reasons, although I have considered them.

Rafiq is a significant binding precedent for the Crown. Whatever limited dissimilarity exists between Mr. Rafiq and Mr. Gould, that dissimilarity does not inure to his benefit in this hearing. In my view the Crown’s recommendation is within the appropriate range of sentence and balances the aggravating and real mitigating features of Mr. Gould’s case. It is a fit sentence for a young man in his specific personal circumstances. In my view, having reviewed other sentences similarly situated offenders have received, anything less than 18 months would risk becoming unfit for the reasons explained in Rafiq.

I am however of the view that Mr. Gould’s mental health concerns and pattern of offending would both benefit from him serving his time at the Ontario Correctional Institute a correctional facility that can provide access to greater treatment and rehabilitative options than a traditional jail, for among other things sexual offending. I will direct on the warrant of committal that real consideration be given to him serving his time at OCI and that his risk for self-harm should be assessed immediately by the correctional authorities.

Disposition

I impose a sentence of 18 months jail on count two on the Information, less credit for two real days served in pre-trial detention. So, two would be credit to three. On the other counts I impose on each, 10 months jail concurrent. The total sentence is 18 months. I additionally impose a two-year probation order with terms for reporting, no contact or communication with any of the victims and counselling for sexual offending. He will sign any releases as well.

I am obligated to make a DNA databank order and I do so. I am obligated to make what we call a SOIRA order for life, which will obligate Mr. Gould to have certain reporting conditions in the future which will be spelled out in the order. I am obligated to make an order under s. 109 of the Code prohibiting him from possessing firearms and related material, items I do not believe he has or would have access to in the future, but in any event, is prohibited from having access for the next 10 years.

I have already signed a forfeiture order. I additionally make a 10-year order under s. 161 of the Code prohibiting Mr. Gould from – under subsection (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 centre, school ground, playground, or community centre unless in the company of a family member. Being within one kilometre of any dwelling house that any of the three victims reside.

Under subsection (b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming a volunteer in a capacity that involves being in a position of trust or authority towards people under the age of 16 years; (c) having any online contact, including communication by any means with a person who is under the age of 16 years unless Mr. Gould does so under the supervision of a family member; (d) you may use the internet, digital network or any similar communication services provided you do not do any or all of the following:

Access any content that violates the law.
Access any social media site, social network, internet discussion forum or chat room or maintain a personal profile on any such service.
Share any material that meets the definition of pornography or obscenity.

I retain the ability to amend this order over the 10-year period, Mr. Daley in the event the circumstances justify reconsideration. The fine surcharges are waived.

Mr. Gould, this has been a difficult matter for me. I understand the implications of what I’ve just imposed. You’re a young man. There is a path through this process and you need to keep your eye on the future and on your future. That’s all I have to say. I wish you luck. Mr. Daley, Mr. Morrow, other than the remaining counts I expect being withdrawn, Mr. Morrow is there any I failed to expressly consider?

MR. MORROW: There was a request for an order...

THE COURT: It’s hard to hear you, sir.

MR. MORROW: Sorry, Your Honour, I’ll speak up. There was a request for an order under s. 743.21. It’s a no contact order with the complaints while serving custody, I think is the only point that wasn’t addressed.

THE COURT: I’ll make that order. I don’t think there’s any scenario where Mr. Gould is contacting any of these people while in custody, but for sake of completeness I’ll make that order as well, Madam Clerk. Mr. Daley?

MR. DALEY: No, Your Honour that’s – I have – maybe some submissions on 161, but that’s – that’s precisely what I pretty much prepared my client for in terms of what the – the conditions would be in terms of the cyber world so I have no further submissions.

THE COURT: Historically Mr. Daley I’ve had concerns about potential overbreadth or over-reach in s. 161 and I’ve – for my part I’ve done my best to try and narrow it to the degree that I think appropriate.

MR. DALEY: Yeah and I – and I agree, Your Honour. Like there’s nothing – there’s nothing that I would have objected to that’s in there. That’s – that’s pretty much what my take on what it would likely be [indiscernible] with my client. So, in other words his main concern was work and [indiscernible] as far as I can see materially interfere with any future career plans.

THE COURT: If the future is different and warrants reconsideration, I’m happy to reconsider.

MR. DALEY: We come back. Thanks.

THE COURT: That completes this hearing.

MR. MORROW: Just to conclude I’ll ask that the remaining counts be withdrawn.

THE COURT: So, ordered. Thank you very much.

... MATTER CONCLUDED

R. v. Gould, 2022 ONCJ 187

Case Summary

Introduction

The Constitutional Challenge