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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
CITATION: R. v. Pathmanathan, 2023 ONCJ 142
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
RAMANAN PATHMANATHAN
Before Justice David Porter
Reasons for Sentence
Released on March 29, 2023
J. Stanton.................................................................................................................... for the Crown
B. Daley.................................................................................................................... for the Accused
OVERVIEW
1On October 26, 2022, the accused Ramanan Pathmanathan (Mr. Pathmanathan) entered pleas of guilty to 39 sexual offences in relation to 8 victims between the ages of 12 and 15, in addition to possessing and accessing child pornography.
2The victims were identified as K.Y. - 15 years old, C.M. - 13 years old, M.O. - 14 years old, G.A. - 13 years old, C.L. -12 years old, N.H. - 13 years old, L.D. - 13 years old, and E.R. - 14 years old.
3The offences for which guilty pleas were entered, and findings of guilt made, were the following, in relation to the victims specified:
- Luring a Child under 18: s.172.1(1) (a) in relation to N.H., L.D., and E.R.;
- Luring a Child under 16: s.172.1(1) (b) in relation to K.Y., C.M., M.O., G.A., and C.L.;
- Invitation to Sexual Touching: s.152 in relation to K.Y., C.M., M.O., G.A., and C.L.;
- Making Child Pornography: s. 163.1(2) in relation to K.Y., C.M., M.O., G.A., C.L., N.H., L.D., E.R.;
- Making Sexually Explicit Material Available to a Child: s. 171.1(1)(a) in relation to: K.Y., C.M., and M.O.;
- Criminal Harassment: s. 264(2)(b) in relation to K.Y., M.O., N.H., L.D., and E.R.;
- Voyeurism: s. 162(1)(b) in relation to K.Y., C.M., and M.O.;
- Extortion: s.346(1) in relation to C.M., G.A., and C.L.;
- Transmitting Child Pornography: s. 163 .1(3) in relation to G.A., C.L., L.D., and E.R.
4The above offences occurred in various time periods between April 1, 2019 and February 28, 2021.
5In addition, when arrested on March 10, 2021, Mr. Pathmanathan was found in possession of, and accessing, child pornography and was charged with committing both of those offences on that date.
6In the course of the sentencing hearing, the Crown withdrew the s.152 invitation to sexual touching counts. Accordingly, the plea of guilty in relation to those counts was struck and the finding of guilt on those counts vacated.
7A 47-page Agreed Statement of Facts was filed on the plea supporting findings of guilt on all of the above offences. A sealed copy of the Agreed Statement of Facts is attached to the information, and sets out in detail the criminal acts of Mr. Pathmanathan in which he engaged in the ongoing online sexual abuse, victimization, and exploitation of these 8 children, to satisfy his deviant sexual interest in young teenage children. From the manner in which he committed these offences I infer that, in addition to sexually exploiting these children, Mr. Pathmanathan sought to control, degrade, humiliate, and de-humanize his victims.
8It is difficult to over-state the seriousness of the offences committed by Mr. Pathmanathan, and the extent of the depravity exemplified in his actions, which inevitably have had, and will have in the future, a devastating effect on his victims. The facts are noteworthy in demonstrating the total lack of empathy on the part of Mr. Pathmanathan for the suffering inflicted upon the 8 children he victimized. It is clear that a proportionate sentence in this case must denounce his conduct in the strongest terms, and that society must be protected from Mr. Pathmanathan for a significant length of time. It is also clear that the sentence in this case must deter others tempted to engage in the online sexual abuse of children. A fit sentence must clearly communicate that society will not tolerate such conduct, and that such offences will result in lengthy periods of incarceration.
9An appreciation of the extent of the depravity, and cruelty, reflected in Mr. Pathmanathan’s conduct would require a recitation of all of his criminal conduct in relation to these victims. By way of summary, the seriousness of these offences is demonstrated by the following brief summary in relation to each victim.
Victim #1: K.Y. 15 years of age
10In April 2019, Mr. Pathmanathan began communicating online with K.Y., a 15-year-old child. The communication between them was sexual in nature and K.Y. sent nude and sexualized images of herself to Mr. Pathmanathan at his direction. Mr. Pathmanathan directed her to perform sexual acts on herself. He recorded these images in screen shots and online chats. He represented himself to be a 17-year-old boy and sent her a video of a fully exposed erect penis purporting to be of himself. He also sent her adult pornographic video clips during one video chat. He asked her to call him “daddy” and, using profane and violent language, asked her to imagine having sex with “daddy”. At his request, she exposed her vaginal and anal region to the camera and, at the direction of Mr. Pathmanathan, engaged in simulated fellatio with a dildo, and ongoing masturbation. She was told to imagine she was having violent sex with “daddy”. Throughout the interaction Mr. Pathmanathan dictated what the child must do, and she complied. He referred to her with degrading language calling here a “little slut”. He directed her to masturbate with her fingers in her vagina and a vibrator in her anus. He directed her to choke herself hard for a period of time, until she could not breathe, while masturbating. Throughout these interactions including, simulated fellatio, she obeyed his demands, while he took screen shots of her sexualized actions.
11Mr. Pathmanathan frequently refers to “daddy” owning K.Y. and directs her to say “u own every inch of me daddy.” He also sent pornography to K.Y. depicting women being injured, and of a male masturbating.
12Mr. Pathmanathan kept a file with the names of K.Y.’s social media followers. K.Y. filed a victim impact statement in which she states in part:
“You threatened me with blackmailing me which you did when you put photos on the web….”
Victim #2 C.M. - 13 years of age
13Mr. Pathmanathan committed his offences in relation to C.M., a 13-year-old child, between June 1, 2019 and January 31, 2020. In June 2019, he began communicating online on a social media platform with C.M. C.M. sent sexualized images of herself to Mr. Pathmanathan at his direction. He took screenshots of these images and saved them in a folder on his computer.
14In video chats via Facebook messenger, he instructed her to perform sexual acts on herself. He coerced C.M. to follow his direction to create sexually explicit material and during one of the video chats he sent her sexually explicit pornography. He created a sub-folder within a folder containing C.M.’s name and age in which he saved recordings of his video chats with C.M.
15His interactions with C.M. were controlling and cruel. At one point, C.M. told Mr. Pathmanathan that she was 13 and she was terrified. On one occasion when she attempted to get off the phone, he told her that “every inch of you belongs to me.” He said “you gonna act like im in charge in the bedroom like ur mine.” At one point, he told C.M. to “shut up” and she started to cry. He demanded that she dress in sexualized clothing and took screenshots of her. When he recorded himself uploading pornography on the video chat, he directed C.M. to do what was displayed in the pornographic video. C.M. pleaded with Mr. Pathmanathan not to send the pornographic videos. Mr. Pathmanathan directed C.M. to masturbate herself and to insert an object into her vagina. He engaged in vulgar, controlling, and threatening demands that she engage in sexual acts. At one point, she asked Mr. Pathmanathan to “please” let her go, and on another told him “I’m 13 I’m not supposed to do this stuff”. She complied with his demands and appeared visibly upset and miserable appearing at times to be in a dissociative state. At one point, Mr. Pathmanathan tells her “I own u”.
Victim Impact
16C.M. filed a victim impact statement in the sentencing proceedings. It demonstrates the profound harm she suffered as a result of her sexual exploitation by Mr. Pathmanathan. She notes that the offences have had a major effect on her relationships. She struggles to trust as well as let others get close to her. She describes having anxiety attacks over answering phone calls as well as being around male friends. She states:
“Since the offence I have often experienced panic attacks, anxiety attacks as well as episodes of depression. I do not feel safe in public unless I am with someone and will avoid going to hang out with friends if it means meeting new people ….. As a result of this I have forced myself to miss out on a lot due to not feeling safe. I lost most of my will to help others due to fear. I struggle to walk or go anywhere alone, go to new places and try new things. Thoughts of suicide had occurred after the offence, at a time I felt it was the only way to escape the burden and finally not feel the weight of what he had done to me.”
17In a separate victim impact statement, C.M.’s mother notes the particular impact of these offences on C.M. because they were committed electronically:
“Electronic crime is so hard for so many to understand how much this affects the victims. Life now revolves around electronics. Soon after, COVID hit and electronics was the way for her education. Having to do anything with videos or live streaming her on-screen set of[f] anxiety attacks. Did not know why at the time as much of the situation came to light after. Did this affect her grades? Impossible to ever know for sure isn’t it, but definitely her mental state”.
Victim #3 – M.O. 14 years of age
18The offences in relation to M.O. occurred between August 1 and August 31, 2019.
19M.O. was 14 years of age at the time. Mr. Pathmanathan began communicating online with her on a social media platform. She sent nude and sexualized images of herself to him at his direction. He directed her to perform sexual acts on herself. He sent her a video of a fully exposed erect penis purporting to be of himself, a 17-year-old boy. He also sent her an adult pornographic video clip.
20On numerous occasions through the chats, he demanded in a controlling and aggressive manner that she engage in numerous sexual acts including masturbation, object insertion in her vagina and anus, simulated fellatio, and watching pornographic videos of fellatio.
21His interactions with her were cruel and controlling. He told her “u gonna learn to be a good little sub when we in bed.” Referring to himself as ‘daddy”, he told her that “you will obey” and “whatever daddy wants daddy gets.” He referred to her as “daddy’s good little fuck toy”. At one point, he told her that he has ejaculated, and he then sent a video of an ejaculating penis. Throughout the recorded interactions, he is consistently demanding, controlling, and vulgar in his repeated demands that she engage in ongoing sexualized actions notwithstanding the child’s protests and objections.
22M.O.’s mother filed a victim impact statement. In her statement, she stated in part:
“Your purposeful and heinous actions killed the little bit of faith I had left in humanity. My daughter was not your only victim. In my family you robbed my other children of their sister and of me, their mother. You’ve never been to my house, yet your presence sheds a darkness in our home, in our lives and in our heads….
I am not the mother I could be, because of you. [MO] is not the child she could be, because of you. She won’t be the mother, partner nor adult she could have been, she will carry the scars you inflicted.”
Victim #4 – G.A. 13 years of age
23Mr. Pathmanathan’s offences in relation to G.A. occurred between January 1, 2020 and January 31, 2020. He began communicating with her online on a social media platform when she was 13 years of age. She sent nude and sexualized videos of herself to Mr. Pathmanathan at his direction. He took recordings of these videos as well as screenshots of their chat history and saved them in a folder with her name and age. She also sent a sexually explicit video of herself at his request. He told G.A. that he had saved her social media followers list and threatened to leak her videos to her social media contacts if she blocked his account or deleted her own account.
24She sent multiple nude images of herself to him at his direction. She became afraid of him because he threatened to attend at her home. He extorted her to send more sexualized and nude images of herself or else he would distribute the content he already possessed to her social media contacts. As a result of his threatening behaviour, she was fearful that the images he had received from her would be posted on her parents’ social media accounts.
25G.A.’s mother filed a victim impact statement in which she stated, in part:
“My daughter’s life has been impacted negatively from this offence. She has experienced anxiety, depression and suicidal thoughts. Because of her anxiety and depression her school, family and social interactions have also suffered. She is still dealing with the trauma that has come along with what she was victim to…. The fear with respect to contact with the offender has been a fear from the beginning and is ongoing.”
Victim #5 – C.L. – 12 years of age
26Mr. Pathmanathan committed offences in relation to C.L. between January 1, 2020 and April 30, 2020. He began communicating with her online in January 2020. At the time, C.L. was a 12-year-old child. He pretended to be a 17-year old American. She sent nude and sexualized images of herself to him at his request. He took screenshots of these images and their chat history and saved them in a folder containing her name and age. At his request, she sent a sexually explicit video of herself which he recorded in which he is directing her on what sexual acts to perform.
27He described in vulgar and aggressive terms the way in which he would force her to perform fellatio if they were together or choke her while having sex.
28On one occasion, he sent to C.L. the screenshots of at least four of the sexually explicit images that she had sent of herself to Mr. Pathmanathan. He told her that he had saved her social media followers list and threatened to leak the images to everyone that goes to her school if she blocked his account. C.L. said she would kill herself if he did that. She told him that she was stressed out, and she was scared, and had never felt so manipulated in her life.
Victim #6 – N.H. – 13 years of age
29Mr. Pathmanathan committed the offences in relation to N.H. between July 1, 2020 and July 31, 2020 when she was 13 years old. He began communicating online with her in July 2020. The communication was sexual in nature and she sent sexualized videos of herself to him at his direction. He took recordings of these videos as well as screenshots from the video and their chat history and saved them in a folder with her name and age. In addition to the screenshots and the sexually explicit videos that he saved in the folder he created for N.H., there were also screenshots of her social media profile page. He created a subfolder within her folder that contained three saved videos of her, two of which were the sexually explicit videos that she had sent him. Her folder also contained a video recording of a child depicted to be engaging in bestiality.
30N.H.’s mother filed a victim impact statement stating, in part:
“She told me how excited she had been having such a handsome guy interested in her, the confusion and discomfort she felt when he asked her for pictures that she did not want to take. Finally, the shock, and humiliation that came with realizing that he was not at all who he had claimed to be and was in fact within a few years of her parents’ age. I don’t know if you can imagine a parent’s anger and feelings of helplessness while watching your child go through something as exploitative and degrading as this incident. No parent should have to. No child should have to….”
Victim # 7 – L.D. – 13 years of age
31Mr. Pathmanathan committed the offences in relation to L.D. between July 1, 2020 and July 31, 2020. He began communicating online with L.D. in July 2020 when L.D. was 13 years of age. She sent sexualized images of herself to him at his direction. He took screenshots of these images and the sexual communication between them and saved them in a folder with her name and age. He also kept in her folder screenshots of her social media profile, social media followers and multiple saved videos of L.D. In the online chats, he refers to himself as “daddy” and L.D. calls him “daddy”.
32His online chat with LD included his description of forcing her to perform fellatio on him if they were together, and of engaging in rough sexual intercourse with her “like daddy owns u”.
Victim # 8 – E.R. – 14 years of age
33In March 2020, Mr. Pathmanathan began communicating online on a social media platform with E.R., who was 14 years of age. The communication with E.R. was sexual in nature. She sent nude and sexualized images of herself to Mr. Pathmanathan at his direction. He saved them in a folder with her name and age marked on it.
34His folder contained screenshots of her social media profile and social media followers. One subfolder contains several nude and sexually explicit images of E.R. which he had saved. At his direction, she sent him a picture of herself in a bra and thong, and a photograph of full-frontal nudity. In his chat with E.R., he speculates about how her father must get “turned on” by her appearance and discusses the possibility of sex between her and her father in which he refers to her as “daddy’s sexy asf kinky girl”.
The Child Pornography Collection of Mr. Pathmanathan
35When he was arrested on March 10, 2021, Mr. Pathmanathan was found to be in possession of an extensive collection of child pornography beyond the child pornography created with the eight victims in this case. It is agreed in the Agreed Statement of Facts that “law enforcement has identified thus far 5600 images and approximately 200 videos that meet the Criminal Code definition of child pornography. Law enforcement has currently identified over 400,000 images and over 4800 videos that have not yet been categorized.”
36The child pornography collection possessed by Mr. Pathmanathan included child pornography from known series entitled “Vicki, Tara, American Socks, Psicol.” In each of these instances, the child depicted is an ascertainable child who was rescued and identified by law enforcement. The children in the series are sexually abused over time by an offender and portions of that abuse are collected by interested offenders.
37Child pornography including children who appear to be toddlers and children between the ages of 3 to 4 years was found in the collection.
38It included a lengthy video of a female child between the ages of 4 to 5 being raped anally by an adult male for a prolonged period of time. The child appears to be drugged or inebriated in some fashion. This particular child is located in more than one video in Mr. Pathmanathan’s collection. In one video, an adult male anally penetrates this child and in another video, an adult male forces his penis into the child’s mouth.
39A short representative sample of the child pornography was viewed by the court in the sentence hearing. It demonstrated that the pornography was at the extremity of depravity.
Psychiatric Assessment of Mr. Pathmanathan by Dr. Philip Klassen Dated October 15, 2022
40A comprehensive forensic psychiatric assessment prepared by Dr. Philip Klassen was filed on consent on the sentencing hearing. Dr. Klassen is an experienced forensic psychiatrist, and the court was greatly assisted by his detailed and comprehensive report.
41By way of background, Dr. Klassen notes that Mr. Pathmanathan is 37 years of age and when he was arrested on March 10, 2021 he was living with his parents, was romantically unattached and had no children. He supported himself by playing online poker.
42He was born in Sri Lanka and his family came to Canada when he was approximately 11 years of age in grade 6. His father was a teacher in Sri Lanka, but worked in Canada as a dishwasher and in security. His mother has a high school education and was employed in Canada but is now retired.
43Although Mr. Pathmanathan graduated from high school with an 84% average, and attended Brock University, he did not complete his degree and left when he was 20 or 21 years of age. He did not pursue formal education thereafter.
44While he reported that he had friends in high school and was involved in athletic extracurricular activities, at the age of 37 he has never had a job and has supported himself by playing on-line poker. He indicated that he had to play poker for nine or 10 hours a day to make an income. It is clear that he developed a very isolated life. He indicated to Dr. Klassen that while he was previously very extroverted, he became less so after the age of 30 and he increasingly abandoned former friends as they had real jobs and he felt out of place.
45He has never married and lived with a partner. He had one romantic relationship at the age of 20, but other than that one relationship he has not had any lengthy relationships beyond two or three months. He reported to Dr. Klassen that he was “addicted” to poker and online pornography and masturbation. As a result, he became a recluse. Latterly, he reports that he spent his days online playing poker, watching pornography and gaming and he really does not have any friends as he had abandoned relationships with all of them.
46In his report under the heading “Diagnoses”, Dr. Klassen states at pp.15-16 of his report:
“Mr. Pathmanathan is 37 years of age. The family was exposed to conflict, and experienced geographic upheaval, in Mr. Pathmanathan’s early years. There are reports of some challenges with respect to adaptation to Canada, both financially and culturally, and of conflict in Mr. Pathmanathan’s parents’ relationship.
Mr. Pathmanathan was reportedly able, academically, and matriculated. From the available information, there is no history of significant rebellion or conduct - disordered behaviour, as a child or adolescent. Mr. Pathmanathan was reportedly social, as a teen and into his early adult years.
One gets the sense that Mr. Pathmanathan is likely, temperamentally, both somewhat sensation-seeking, and has a significant autonomy drive, thus he left both university, and conventional employment, for online pursuits, including self-support through playing poker, video gaming, and heavy use of erotica. This process was reportedly progressive, with incremental social involution; this gentleman has not had an intimate relationship for years, and is reportedly estranged from his former friends. One gets the sense, further, that there was likely intra-familial tension or conflict, as a result of the family’s challenges with Mr. Pathmanathan’s brother’s addictions. There are also reports that Mr. Pathmanathan’s parents have been enablers of their sons’ difficulties. Mr. Pathmanathan’s sister and brother report that they questioned Mr. Pathmanathan about his trajectory, but did not receive satisfactory answers. That trajectory now includes a significant history of sexual offending, and exploitation.
… it is my opinion that this gentleman likely suffers primarily from a paraphilic disorder or disorders, the expression of which was facilitated by online access, and Mr. Pathmanathan’s own expertise in navigating the online community.
Mr. Pathmanathan’s self-report regarding his sexuality, with the undersigned, was limited. Further, there are indications of efforts to manipulate test outcome, in phallometric testing. Accordingly, I cannot be certain of this gentleman’s paraphilic disorder(s), in terms of both the existence thereof, and the specific interests, though I would submit that this gentleman likely presents with a combination of coercive sexual interest, and hebephilia (a sexual preference for approximately pubescent aged individuals). It is my opinion that this gentleman likely suffers from one or more paraphilic disorders as this gentleman has progressively eschewed normative sexual behaviour, and partner relationships, for the online domain, in which he can engage in paraphilic behaviour with greater range. With respect to his specific paraphilias, I note the age range of the victims, reference to “incest” and “daddy”, and themes of power and control, and submissiveness, including object insertion, nipple clamps, and tying/choking. Mr. Pathmanathan has indicated that his behaviour was not fundamentally driven by sexual interest, rather was driven by competitive urges, but from a clinical perspective I would disagree. He has acknowledged some sexual arousal to BDSM, incest, submission, and other variable[s] identified above.”
47I note that Mr. Pathmanathan had indicated to Dr. Klassen that he was not attracted to individuals in their teens, and that he chose individuals in that age range to contact because his goal was to “win” and he had more success winning with younger individuals. When asked if there was arousal value to control, he indicated to Dr. Klassen that his motivation was to put individuals in the “win” column. (Klassen Report, at p. 8).
48With respect to the risk of re-offence, Dr. Klassen concludes at p. 17 of his report,
“Accordingly from an actuarial perspective, Mr. Pathmanathan presents as being at above average but not high risk of sexual recidivism.”
49Dr. Klassen concludes at p.18:
“To reiterate, in my opinion the latent construct underlying this gentleman’s offending is likely a paraphilic disorder or disorders. From a risk management perspective, this gentleman should receive sex offender treatment programming.
This gentleman also clearly should engage in lifestyle change, at such time as he may return to the community. I note his sister’s emphatic comments about the change in this gentleman, when he was extracted from the basement during his time on judicial interim release.
This gentleman should have conditions placed on his online access at such time as he may return to the community.”
50Counsel for Mr. Pathmanathan filed a supplementary report from Dr. Klassen dated February 13, 2023. In the report, Dr. Klassen addressed concerns the court had raised in the course of counsel’s submissions about the significance of the evidence of cruelty in Mr. Pathmanathan’s interactions with the victims in this case. Dr. Klassen states the following in his supplementary report:
“With respect to the question of sadism, as indicated in my report, … I felt that this gentleman’s self-report regarding his sexuality was limited, and there were efforts to manipulate phallometric test outcome. Accordingly, as I stated, I can’t be certain of this gentleman’s paraphilic disorder or disorders, in terms of both the existence thereof, and the specific interests, though I felt that this gentleman may have a combination of a coercive sexual interest, and hebephilia.
Sadism is a coercive sexual interest; the DSM-5 definition of sadism is a sexual preference for arousal to the physical or mental suffering of another. It’s possible that this gentleman’s diagnosis is sexual sadism, but given that I can’t be certain about this gentleman’s diagnosis, sexologically I’m not able to offer that diagnosis. This gentleman’s reported interest in BDSM is common in the general population. As you know from the report, Mr. Pathmanathan’s position is that he has no non-consenting sexual interests or fantasies.”
Character Materials Filed by the Defence
51Counsel on behalf of Mr. Pathmanathan filed materials relevant to Mr. Pathmanathan’s character. In a letter to the court, his father describes his son’s early years in Canada as pro-social in which he formed deep friendships with friends in middle school, and remained good friends through high school and attended university together. He describes his son as a young man as very close with his siblings, interested in outdoor activities and sports, and even after university he continued to meet friends regularly and maintain his outgoing and social personality.
52His father describes a gradual descent into isolation, in which Mr. Pathmanathan began to spend much of his time playing on-line poker, and became more socially isolated as his social life deteriorated. While his father perceived him through this time to be a caring and generous person, he indicates that in many ways Mr. Pathmanathan was still very much like a teenager “often playing video games playing poker and being oblivious to the realities and responsibilities of the real world.”
53His father describes his actual relationships with his nieces and nephews as positive. He states that he has always shown respect towards young women, and the young women in their family who have a close relationship with him are shocked to hear of these offences as they consider them to be inconsistent with the kind and respectful person they know Mr. Pathmanathan to be.
54He states that while Mr. Pathmanathan was on bail, his process of rehabilitation began as he exercised regularly, read numerous books and began to attend church regularly and read theology. He states that Mr. Pathmanathan expressed regret for the actions and decisions he made “and was genuinely ashamed for the burden and pain this has caused on our family and the other families involved.”
55His father states that he considers that Mr. Pathmanathan’s actions “were not reflective of his innate character.” He states that Mr. Pathmanathan “is deeply regretful for his actions and has already begun the process of rehabilitating himself – he has taken many workshop courses, Bible study and prayer group.”
56Counsel filed certificates with respect to a number of courses in religious studies which Mr. Pathmanathan has completed through the new life ministries, and numerous rehabilitation courses taken in custody covering many substantive areas including understanding feelings, anger management, goalsetting, changing habits, thoughts to action, managing stress, substance use, recognizing healthy relationships, and supportive relationships.”
57Counsel submits on behalf of Mr. Pathmanathan that he has taken every course available to him while in pre-sentence custody to improve himself. He submits that this is indicative of Mr. Pathmanathan’s potential for rehabilitation.
58He notes, as well, information from Mr. Pathmanathan’s family of his significant progress while on bail when he had rid himself of the internet usage with which he was preoccupied when he committed these offences. He submits this provides evidence of Mr. Pathmanathan’s potential for rehabilitation.
59While Mr. Pathmanathan’s time on release was relatively short, I note that he did not start any sex offender treatment or counselling so there is no evidence before me of his response to such treatment. It is deeply concerning to the court that, in his assessment by Dr. Klassen, Mr. Pathmanathan stated that when committing these offences “he felt like he was in a videogame, that the people that he was online with were not real people…. He stated that the victims were placed in the folders marked “win”, “lose”, or “fail”, based on the extent to which his extortion was, or was not successful…”
60Mr. Pathmanathan appears to not have accepted the sexual nature of his offending. As reported by Dr. Klassen at p. 8 of his report:
“I asked Mr. Pathmanathan about sexual elements in his offending; Mr. Pathmanathan stated that he was at times aroused, but … stated that he is not sexually attracted to individuals in their teens. I asked why, then, he chose females in that age range to contact and [he] stated that this was to “win”, as he had more success with younger individuals. I asked whether there was arousal value to control and he responded that his motivation was to put individuals in the “win column”.
61In my opinion, Mr. Pathmanathan’s failure to appreciate or acknowledge the sexual basis of his offences is an aggravating factor and makes his rehabilitation more challenging. It is deeply concerning, and an aggravating factor that increases the moral blameworthiness of Mr. Pathmanathan, that when he committed these offences, Mr. Pathmanathan considered his victims to be objects, not children, and that he was oblivious to, and indifferent to, the obvious suffering he was inflicting on the children he victimized.
Mr. Pathmanathan’s Statement to the Court
62In a hand-written statement filed with the court, and repeated orally, Mr. Pathmanathan apologized to his victims and to society and expressed regret for his offences. He stated in part:
“I realize now that my horrible actions had a chain effect of negative consequences; not only for my victims but also for their families, especially their parents. I know it sounds difficult to believe because of what I have done, but hearing their victim impact statements genuinely broke my heart, and I’m extremely sorry for the pain and trauma I caused you guys. I really wish I can undo the suffering I have caused, and for wronging you guys in a terrible way. From the bottom of my heart, I am truly sorry and please find it in your hearts to forgive me.”
The Applicable Sentencing Principles
63The general principles of sentencing are established in the following provisions of the Criminal Code. Section 718 states:
“The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender, and other persons, from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims, or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims or to the community”
64Section 718.2 states:
“A court that imposes a sentence shall also take into consideration the following principles:
(a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, ….
(b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”
65The fundamental principle of sentencing is the principle of proportionality. Section 718.1 of the Criminal Code states that a sentence,
“must be proportionate to the gravity of the offence and the degree of responsibility of the offender”.
66In R. v. Ipeelee, 2012 SCC 13, the Supreme Court of Canada defined the principle of proportionality as follows at para. 37:
“The fundamental principle of sentencing (i.e., proportionality) is intimately tied to the fundamental purpose of sentencing — the maintenance of a just, peaceful and safe society through the imposition of just sanctions. Whatever weight a judge may wish to accord to the various objectives and other principles listed in the Code, the resulting sentence must respect the fundamental principle of proportionality. Proportionality is the sine qua non of a just sanction. First, the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, 1985 CanLII 81 (SCC), [1985] 2 S.C.R. 486, at p. 533:
“It is basic to any theory of punishment that the sentence imposed bear some relationship to the offence; it must be a “fit” sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender “deserved” the punishment he received and feel a confidence in the fairness and rationality of the system.
Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.”
67Parliament has directed since 2005 in section 718.01 of the Criminal Code that when a court imposes a sentence involving the abuse of a person under the age of 18 years “it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.”.
68This enactment put in statutory form the sentencing principles in this context established in the prior jurisprudence. For example, as noted by the Ontario Court of Appeal in R. v. D.D., 2002 CanLII 44915 at para. 34:
“Adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price. In cases such as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s 718(a), (b), and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.”
69Parliament has also explicitly recognized the inherent gravity of child sexual abuse offences. Section 718.2(a) (ii.1) provides that evidence in any case that an offender abused a person under the age of 18 is to be treated as an aggravating circumstance in determining the appropriate sentence.
70Similarly, in determining the appropriate sentence, a court is required to consider evidence that the offence had a significant impact on the victim in light of their age and other personal circumstances including their health: s. 718.2(a) (iii.1).
71The court is required to have regard to a victim impact statement in determining an appropriate sentence: Criminal Code, s.722; R. v. Taylor, 2004 CanLII 7199 (ON CA), [2004] O.J. No. 3439 at paras. 41-42 (C.A.). The victim impact evidence filed in this case both from individual victims, and the community impact statements from the general counsel for the Canadian Centre for Child Protection Inc., demonstrate unequivocally the significant and long-lasting harm from the internet-based sexual abuse of children and from the proliferation of child pornography on the internet.
72Recent developments in the jurisprudence recognize the particular risks to children posed by the Internet and its widespread accessibility to persons seeking to sexually exploit children through Internet - based sexual offences.
73Thirteen years ago, the Court of Appeal stated in R. v. D.G.F., 2010 ONCA 27, [2010] O.J. No.127 at paras. 21-22:
“Over the last two decades, courts have been on a learning curve to understand both the extent and the effects of the creation and dissemination of child pornography over the Internet and to address the problem appropriately: see for example, R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45; ….
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.”
74The problem of the sexual exploitation of children, including in internet-based sexual offences, was more recently addressed by the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9 at paras. 47-48, 51, 52, and 76:
“New technologies have enabled new forms of sexual violence against children and provided sexual offenders with new ways to access children. Social media provides sexual offenders “unprecedented access” to potential child victims (R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C. R. 906, at para.102). The Internet both directly connects sexual offenders with child victims and allows for indirect connections through the child’s caregiver. Online child luring can be both a prelude to sexual assault and a way to induce or threaten children to perform sexual acts on camera (see R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d)81; R. v. Rafiq, 2015 ONCA 768, 342 O.A.C. 193). The Internet has also “accelerated the proliferation of child pornography” (R. v. Morelli, 2010 SCC 8, [2010] 1 S.C.R. 253, at para.114, per Deschamps J.)
48 Technology can make sexual offences against children qualitatively different too. For instance, online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child's life at any time (R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45 (S.C.C.), at para. 92; R. v. J.S., 2018 ONCA 675, 142 O.R. (3d) 81 (Ont. C.A.) [hereinafter S. (J.)], at para. 120).
51 The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children. This Court recognized the importance of these interests in Sharpe in the context of the production of child pornography. As this Court reasoned, the production of child pornography traumatizes children and violates their autonomy and dignity by treating them as sexual objects, causing harm that may stay with them for their entire lifetime (para. 92, per McLachlin C.J., and para. 185, per L'Heureux-Dubé, Gonthier and Bastarache JJ.). Sexual violence against children is thus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity (see Sharpe, at paras. 172, 174 and 185, per L'Heureux-Dubé, Gonthier and Bastarache JJ.).
52 We would note that the personal autonomy interest carries a somewhat different meaning for children than it does for adults…. personal autonomy refers to a child's right to develop to adulthood free from sexual interference and exploitation by adults (see Sharpe, at para. 185).
56 This emphasis on personal autonomy, bodily integrity, sexual integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotional and psychological harm that, as this court held in R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 S.C.R.72 (S.C.C.), “may often be more pervasive and permanent in its effect than any physical harm” (p.81).
76 Courts must impose sentences that are commensurate with the gravity of sexual offences against children. 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 (see M. (C.A.), at para. 80; R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90(S.C.C.), at para. 35). We thus offer some guidance on how courts should give effect to the gravity of sexual offences against children. Specifically, courts must recognize and give effect to (1) the inherent wrongfulness of these offences;(2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences.”
75As the Supreme Court of Canada held in Friesen, supra, at para. 90:
“Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable (R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3(S.C.C.), at para. 153). As L'Heureux-Dubé J. recognized in R. v. W. (L.F.), 2000 SCC 6, [2000] 1 S.C.R. 132 (S.C.C.), ‘As to moral blameworthiness, the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions’ (para. 31, quoting R. v. W. (L.F.) (1997), 1997 CanLII 10868 (NL CA), 155 Nfld. & P.E.I.R. 115 (Nfld. C.A.), at para. 117, per Cameron J.A. (‘L.F.W. (C.A.)’)). Offenders recognize children's particular vulnerability and intentionally exploit it to achieve their selfish desires (Woodward, at para. 72).”
76As noted by the Supreme Court of Canada in R. v. Friesen, Parliament has expressed its view as to the seriousness of sexual offences against children in the successive increases to the maximum sentences for sexual offences against children. In Friesen, the Court stated at paras. 95 and 99-100:
“Parliament has recognized the profound harm that sexual offences against children cause and has determined that sentences for such offences should increase to match Parliament’s view of their gravity. Parliament has expressed its will by increasing maximum sentences and by prioritizing denunciation and deterrence in sentencing for sexual offences against children
These successive increases in maximum sentences indicate Parliament’s determination that sexual offences against children are to be treated as more grave than they have been in the past
As Kasirer J.A. reasoned 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” (para. 175; see also Woodward, at para. 58). Sentencing judges and appellate courts need to give effect to Parliament’s clear and repeated signals to increase sentences imposed for these offences.”
77As the Court of Appeal noted in R. v. M.M., 2022 ONCA 441 at para.15:
“The Supreme Court’s instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here.”
78In upholding the trial judge’s 15 year sentence for several sexual offences in relation to the same child, LeBel, J. in R. v. L.M., 2008 SCC 31 noted the importance of considering the gravity of the totality of the offender’s conduct in determining the appropriate sentence. LeBel, J. stated for the majority at para.31:
“The judge also correctly understood the close relationship between the offences, the overall situation they gave rise to and the need to impose a global sentence suited to that situation. Viewed as a whole, the crime was complex. The offence of sexual assault was closely connected with three other offences of making, possessing and distributing child pornography that are subject to express sanctions under the Criminal Code. Each aspect of the offender’s conduct could be considered only in light of all these charges, viewed as a whole. As Judge Wilhelmy concluded, the global sentence was the crucial factor in determining the sentence in the case at bar.”
79In R. v. Rafiq, 2015 ONCA 768, [2015] O.J., No. 5878, the Ontario Court of Appeal noted the significant nature of the harm inflicted on children by their sexual exploitation over the Internet. The Court stated at para. 44 and 45:
“… The Internet has made it possible for abusers to get into the victim’s head and abuse remotely. The abuser can tell the victim what to do and how to do it, and record it- in text, video, or photograph- all for the abuser’s gratification. Thus, through manipulation and control over time by an adult abuser, the child victim becomes a participant in her own sexual abuse.
I see no reason to believe that the psychological consequences of such abuse are likely to be significantly less serious than the consequences of direct physical sexual abuse. The extent to which they will occur in any particular victim is impossible to predict.”
The Principle of Totality
80When an accused is sentenced for sexual offences against a number of victims, sentencing principles would suggest that consecutive sentences be imposed in relation to the offences against the individual victims.
81As the Manitoba Court of Appeal noted in R. v. Sinclair, 2022 MBCA 65, at para. 48:
“The accused engaged in separate and distinct acts involving multiple victims over an extended period, resulting in separate and distinct harm to the victims. Consecutive sentences were appropriate and warranted.”
82However, the totality principle reflected in section 718.2(c) of the Criminal Code states that “where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh”. This principle is closely related to the fundamental sentencing principle of proportionality in section 718.1 of the Criminal Code which requires that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
83The purpose of the totality principle is to ensure “that the total sentence imposed does not extinguish the rehabilitative potential of the offender”: R. v. Angelis, 2016 ONCA 675, per Watt J.A. at para. 51.
84However, the Court of Appeal has been clear that the totality principle must not be applied in such a manner that the global sentence fails to recognize the overall gravity of the sexual offences against children for which the offender is being sentenced. As Feldman, J.A. noted in R. v. F. (D.G.), 2010 ONCA 27 at paras. 26-27:
“… by focusing on the totality principle and imposing concurrent sentences for each of the offences, the trial judge failed to address the interrelation of the crimes and the need for a sufficiently long global sentence to address the seriousness and moral blameworthiness of the respondent’s overall criminal conduct.
Although the totality principle must always be considered in 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 way.”
85In Ontario, the accepted practice in approaching the requirement of totality in respect of sentencing an accused for a number of offences, is to determine an overall fit sentence in relation to the moral culpability of the offender in relation to all of the offences, and then impose individual sentences adding up to the total: R. v. Ahmed, 2017 ONCA 76, at para. 84-85; R. v. Friesen, 2020 SCC 9, at para. 157.
86To achieve this result, as noted in Sentencing, 10th edition, at p. 61:
“The totality principle has been applied in a number of ways to reduce sentences which, when viewed in isolation, are appropriate but, collectively, amount to a longer term than is warranted. Sentences that would normally be consecutive have been made concurrent; individual sentences have been made shorter than they would normally be to reflect that a number of consecutive sentences are involved; or a single concurrent term has been imposed as an appropriate sentence for all the charges under consideration”.
87In R. v. Hannora, 2020 ONCA 335, the Court of Appeal made a number of sentences concurrent as a means of satisfying the principle of totality. The Court stated at para. 12:
“It is recognized that one way to reconcile the overall sentence with the totality principle is to impose concurrent sentences, where otherwise sentences would be consecutive: Clayton Ruby, et al. Sentencing, 9th ed. (Toronto: LexisNexis, 2017), at 2.75. This approach has been favoured by this court in a variety of decisions, including R. v. Jewell (1995),100 C.C.C.(3d) (Ont. C.A.), where Finlayson J.A. said, at page 279:
“In performing this function, the trial judge will have to consider not only the appropriate sentence for each offence, but whether in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed.”
The Principle of Restraint
88Mr. Pathmanathan is a first offender. He has no prior record. The principle of restraint is applicable in sentencing all offenders, and in particular first offenders.
89As recently summarized by the Court of Appeal in R. v. Sousa, 2023 ONCA 100, at para. 37:
“Finally, the principle of restraint should be applied to first offenders. This court explained the principle in R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at paras. 32-35. This court has noted that the sentence imposed on a first offender should be as short as possible and be tailored to the individual circumstances of the accused: R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 30 O.R. (3d) 538 (C.A.), at p. 545. Rehabilitation is an aspect of restraint: R. v. Blanas (2006), 2006 CanLII 2610 (ON CA), 207 O.A.C. 226 (C.A.), at para. 5….”
Rehabilitation
90While it is clear that denunciation and general and specific deterrence are the paramount considerations in sentencing an accused in relation to sexual offences involving children, the rehabilitation of the accused must always be considered as one of the principles of sentencing. Indeed, as noted by the Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64, at para. 4:
“One of the main objectives of Canadian criminal law is the rehabilitation of offenders. Rehabilitation is one of the fundamental moral values that distinguish Canadian society from the societies of many other nations in the world, and it helps the courts impose sentences that are just and appropriate.”
The Range of Sentence for Luring
91Even prior to the watershed decision of the Supreme Court of Canada in R. v. Friesen, supra, the Court of Appeal in Ontario recognized the need to increase sentences for luring. In R. v. Woodward, 2011 ONCA 610, Moldaver J.A. emphasized the need for significant sentences to denounce and deter sexual offences against children and specifically online luring when he stated at paragraphs 75-76:
“Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term …
…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 do often 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.”
92In R. v. Woodward, supra, Moldaver, J.A. stated at para. 58 with respect to the range of sentence for luring:
“…I believe that much stiffer sentences, in the range of 3 to 5 years, might well be warranted to deter, denounce and separate from society adult predators who would commit this insidious crime.”
93As noted by the Manitoba Court of Appeal in R. v. Sinclair, supra, at paragraph 62:
“More recently, the court in R. v. Moolla, 2021 ONSC 3702, confirmed the combined effect of Woodward and Friesen resulted in an appropriate range of 3 to 5 years for internet child sex luring.”
The Crown’s Sentencing Position
94The Crown submits that the total proportionate sentence in this case is a period of incarceration in the range of 12 to 15 years. The Crown has provided a specific sentencing calculation allocating individual sentences to the various offences, using the principle of concurrent sentences where necessary, to submit that the appropriate total sentence in this case, before taking pre-sentence custody into account, is a sentence of 15 years.
95In its particular calculation, the Crown has endeavoured to allocate the sentences to the different offences to which Mr. Pathmanathan plead guilty in such a manner as to comply with section 718.3(7) of the Criminal Code which states:
“When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct
(a) That a sentence of imprisonment it imposes for an offence under section 163.1 be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another section of this Act committed against a child; and
(b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under section 163.1.”
96The Crown relied on a number of cases in support of its submission that the proportionate sentence having regard to all the circumstances in this case was a total sentence of 15 years in the penitentiary.
97The case which provided the greatest support to the Crown’s submission was the recent decision of the Ontario Court of Justice in Rex v. Bergsma (Unreported, November 3, 2022).
98In that case, the accused plead guilty to 24 offences in relation to 11 identifiable victims 9 of whom were the subject of luring by the accused. Nine actual children were the victims of these offences aged 15 to 17. He plead guilty to nine counts of luring, five counts of making sexually explicit material available, five counts of making child pornography, one count of invitation to sexual touching, one count of making an arrangement to commit a sexual offence against a child, two counts of making child pornography available, and one count of possessing child pornography.
99The accused admitted to using multiple platforms to possess and trade child pornography with others. The child luring offences in relation to nine children are similar to the offences before the court in this case. The accused invited the teenage victims to engage in sexual activity recorded during Internet conversations. In one instance, the accused encouraged one of the victims to commit suicide and referred to her in dehumanizing and denigrating terms.
100Sexually explicit images were exchanged with his victims over the internet and he encouraged each of the young victims to engage in sexual acts on the Internet. He sent to the victims photos of himself masturbating.
101The accused also admitted to distributing child pornography to his teenage victims. In relation to one victim, he attempted to arrange a meeting with a 17-year-old victim to have intercourse with her in his car, but he was unsuccessful in succeeding in persuading her to meet with him for that purpose.
102In relation to another victim, he actually met with the 17-year-old victim and had sexual contact with her in his apartment.
103The Crown sought a total sentence of 16 years in that case, and the court imposed a total sentence of 13 years.
104Mr. Bergsma was 32 years of age at the time of sentencing and had no prior record. He had, however, had a difficult childhood and was physically and emotionally abused by his father at a young age. As a result of the deficits in his upbringing he was never provided with basic skills to care for himself or to learn how to function as an adult. He never graduated from high school.
105I accept the defence submission that there are aspects of this case which are more aggravating than the case at bar. Mr. Bergsma made actual contact with several victims and had actual sexual contact with one of them. In one instance, he actually encouraged one of his victims to commit suicide. He was engaged in the distribution of child pornography. He sent videos to several of his victims in which he was masturbating.
106However, unlike Mr. Pathmanathan, Mr. Bergsma suffered deficits in his upbringing placing him in a disadvantaged position in society. In contrast, Mr. Pathmanathan was the beneficiary of a stable family upbringing, which apart from some family conflict, provided him with a loving supportive family, and the benefits of a university education which he chose not to complete.
107Like Mr. Bergsma, Mr. Pathmanathan plead guilty and expressed regret and apologized to the victims and the court for his offences.
The Defence Cases
108Defence counsel filed a number of sentencing authorities in support of his submission that the appropriate sentence range in this case is a global sentence of 8.5 to 10.5 years in the penitentiary.
109In support of his submission, he relies on a number of cases including R. v. J.R., 2021 ONCJ 14, in which Dellandrea, J. imposed a sentence of five years after a trial in which the accused was convicted of luring contrary to section 172.1 of the Criminal Code and extortion contrary to section 346 of the Criminal Code.
110The circumstances of that case were serious. The accused in violation of a prohibition order, committed the offence of luring in relation to his 16-year old daughter/granddaughter, who was the child of her step-sister, who the accused had impregnated following years of prolonged sexual abuse.
111As a result of engaging his daughter in luring, the accused received child pornography descriptions of his daughter which she had sent to him on Snapchat. The accused had a previous related criminal record. In that case the Crown sought a period of incarceration of six years. Justice Dellandrea imposed a sentence in relation to this single victim of five years, with an 18-month concurrent sentence for extortion.
112In R. v. Sinclair, 2022 MBCA 65, the Manitoba Court of Appeal allowed an appeal from a five-year sentence imposed at trial in relation to offences of child luring, possession of child pornography, making child pornography, extortion, and distribution of child pornography. The Crown sought a sentence of eight years in the case, and the Court of Appeal allowed the Crown’s appeal and imposed an 8-year sentence on appeal.
113The Manitoba Court of Appeal was guided by the decision of the Supreme Court of Canada in R. v. Friesen. A distinguishing feature of the case was that the accused suffered from cognitive deficits, and was Indigenous thus engaging Gladue factors. In allowing the Crown’s appeal, the Court of Appeal stated at paragraph 78:
“Given our present understanding of the seriousness of child sexual offences and, in particular, online child sexual exploitation, the sentence imposed failed to properly reflect the accused’s high level of moral culpability, the seriousness of his offending behaviour and, most importantly, his risk to the public. A five year sentence failed to appropriately hold the accused to account. I agree with the Crown that an eight year sentence is more in keeping with the accused’s moral culpability”.
114On behalf of Mr. Pathmanathan, Mr. Daley places substantial reliance upon the decision of Justice Forestell in R. v. Bahamonde, 2022 ONSC 916. In that case, the accused entered pleas of guilty to numerous offences, but not guilty to voyeurism, for which he was convicted after a 3-day trial.
115He plead guilty to 12 offences including criminal harassment, threatening bodily harm, luring, distribution of child pornography, threatening bodily harm, possession of child pornography, criminal harassment making child pornography distributing child pornography, luring and failing to comply with a recognizance. The offences involved 4 identified individual victims. The child luring offences included an offence in relation to a 15-year-old victim to whom he sent sexually explicit material which met the definition of child pornography. In one exchange, he threatened to rape her. The accused was 20 or 21 years old when he committed the first offence, and was 28 years of age at the time of sentencing. He had no prior record.
116He was diagnosed in a psychiatric assessment as having a personality disorder, with borderline and narcissistic traits.
117By the time of sentencing, he had engaged in weekly or biweekly psychotherapy sessions at a community centre, and he had attended a 20 session sex offender group therapy session with Dr. Julian Gojer. He was described by Dr. Gojer as actively engaged in therapy and that he had developed insight. Because he had engaged in treatment and developed insight, his risk of future sexual offences was described as low to low moderate and his risk of future violent offence was low.
118In determining the appropriate sentence, Justice Forestell considered Mr. Bahamonde to be a youthful first offender and noted at para.78:
“Rehabilitation has added importance for a first offender and restraint should be used in imposing a first penitentiary sentence on a youthful offender”.
119Justice Forestell concluded that the shortest sentence consistent with the relevant sentencing principles was 8.5 years, which she reduced to eight years to take into account the exceptionally harsh conditions of his presentence custody at the Toronto South Detention Centre including 96 days of lockdowns.
Analysis
120The fundamental principle of sentencing is the requirement in section 718.1 that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
121In my opinion, the gravity of the totality of the offences in this case is very high. Not only did the accused engage in the sexual exploitation of children over the Internet, he did so in a degrading and threatening manner in which he demonstrated total indifference to the suffering which he was imposing upon these children by demanding that they perform highly intrusive sexual acts to satisfy his deviant sexual interest. In several instances, he threatened to disclose their on-line sexual activity to their social media contacts to force them to continue to perform intrusive sexual acts at his command.
122The harm experienced by the eight victims in this case is obvious and clearly reflected in the victim impact statements filed. The jurisprudence in Canada has now recognized the extremely harmful nature of the Internet-based sexual exploitation of children. The Supreme Court of Canada has clearly stated that trial courts must reflect the moral blameworthiness of the accused who engage in this activity by imposing significant penitentiary sentences guided by the sentencing principles of general and specific deterrence, and denunciation. Significant periods of incarceration are required to reflect society’s abhorrence of this conduct and to deter other like-minded individuals from engaging in the harmful exploitation of children which occurred in this case.
123The aggravating circumstances in this case are numerous. They include the number of victims, the degrading and dehumanizing way in which Mr. Pathmanathan interacted with his victims in his online communications, and the fact that in addition to creating child pornography with his eight victims, and engaging in sexually exploiting offences in relation to them, he was also in possession of other child pornography reflecting content at the extreme end of depravity involving explicit sexual offences involving very young children.
124The mitigating circumstances in this case include the fact that Mr. Pathmanathan expressed his remorse and saved significant court time by entering a plea of guilty to these offences. He has expressed to the court and to the victims his remorse for having committed these offences. There was also no evidence that he actually distributed the child pornography he forced his victims to create.
125Dr. Klassen has stated that Mr. Pathmanathan is at above average, but not high, risk of recidivism. However, Dr. Klassen has noted that Mr. Pathmanathan made efforts to manipulate the test results of his phallometric testing, and was limited in his self-report concerning his sexuality and the sexual nature of his offences.
126In my view, Mr. Pathmanathan has not yet shown insight into the motivation for his offences. When he committed them, he did not internalize that his victims were vulnerable children who he was exploiting sexually but rather, he regarded them as participants in a game he sought to win. He was not forthcoming in his self-report to Dr Klassen on his sexuality.
127Accordingly, in my view, his prospects of true insight and rehabilitation are uncertain. Given the harm that would be caused by a repetition of these offences, the public needs to be protected from Mr. Pathmanathan for a significant period of incarceration, during which he should receive sex offender treatment and counselling.
128Mr. Pathmanathan is a first offender, and the principle of restraint requires that his prospects for rehabilitation must be reflected in a fit sentence. Nevertheless, general and specific deterrence, and denunciation, remain the paramount sentencing principles for these offences.
129On behalf of Mr. Pathmanathan, Mr. Daley submits that a “Duncan credit” reduction in sentence should be given as a result of the exceptionally harsh pre-sentence custody conditions experienced by Mr. Pathmanathan.
130The Court of Appeal has recently clarified the distinction between the “Summers” credit for pre-trial custody, in which enhanced credit is given for pre-sentence custody on a ratio of 1.5 days of enhanced credit for one day of pretrial custody, and the “Duncan “credit for exceptionally punitive conditions experienced in pretrial detention.
131In R. v. Marshall, 2021 ONCA 344, Doherty J.A., stated for the Court at paras. 50-53:
“A “Duncan” credit is given on account of particularly difficult and punitive presentence custody conditions. It must be borne in mind the 1.5:1 “Summers” credit already takes into account the difficult and restrictive circumstances offenders often encounter during pretrial custody: Summers, at paras. 28-29. The “Duncan” credit addresses exceptionally punitive conditions which go well beyond the normal restrictions associated with pretrial custody. The very restrictive conditions in the jails and the health risks brought on by COVID-19 are a good example of the kind of circumstance that may give rise to a “Duncan” credit: R. v. Morgan, 2020 ONCA 279.
It is also important to appreciate and maintain the clear distinction between the “Summers” credit and the “Duncan” credit. The “Summers” credit is a deduction from what the trial judge determines to be the appropriate sentence for the offence. The “Summers” credit is calculated to identify and deduct from the appropriate sentence the amount of the sentence the accused has effectively served by virtue of the pretrial incarceration. The “Summers” credit is statutorily capped at 1.5:1. It is wrong to think of the “Summers” credit as a mitigating factor. It would be equally wrong to deny or limit the “Summers” credit because of some aggravating factor, such as the seriousness of the offence: R. v. Colt, 2015 BCCA 190.
The “Duncan” credit is not a deduction from the otherwise appropriate sentence, but is one of the factors to be taken into account in determining the appropriate sentence. Particularly punitive pretrial incarceration conditions can be a mitigating factor to be taken into account with the other mitigating and aggravating factors in arriving at the appropriate sentence from which the “Summers” credit will be deducted. Because the “Duncan” credit is one of the mitigating factors to be taken into account, it cannot justify the imposition of a sentence which is inappropriate, having regard to all of the relevant mitigating or aggravating factors.
Often times, a specific number of days or months are given as “Duncan” credit. While this quantification is not necessarily inappropriate, it may skew the calculation of the ultimate sentence. By quantifying the “Duncan” credit, only one of presumably several relevant factors, there is a risk the “Duncan” credit will be improperly treated as a deduction from the appropriate sentence in the same way as the “Summers” credit. If treated in that way, the “Duncan” credit can take on an unwarranted significance in fixing the ultimate sentence imposed: R. v. J.B. (2004), 2004 CanLII 39056 (ON CA), 187 O.A.C. 307 (C.A.)”
132Materials filed by the defence show that Mr. Pathmanathan was subject to a total of 182 lockdown days in his 537 days of pre-sentence custody. In addition, as a result of the COVID pandemic, he was subject to periods of quarantine, droplet precaution due to COVID in which he was kept in his cell for the entire day with the exception of 30 minutes, and periods of time in which public visits were cancelled as a result of the ongoing COVID pandemic. Mr. Pathmanathan testified that at times there were three prisoners housed in a cell constructed for two prisoners, and during his period of pre-sentence custody he contracted COVID. He testified that there were substantial periods of time at the Toronto East Detention Centre, where he was incarcerated, that he was denied access to the required 20 minutes of fresh air per day as a result of overcrowding.
133I am satisfied based on the record before me that, as a result of the lockdowns experienced on 182 days out of his 530 days of presentence custody Mr. Pathmanathan experienced significant adverse effects from the lockdown conditions, exacerbated by the ongoing impact of the COVID pandemic.
134In accordance with the Court of Appeal decision in R. v. Marshall, supra, I have considered this impact as a mitigating circumstance in my determination of the appropriate total period of incarceration.
135In my opinion, having regard to the sentencing principles previously discussed, the fit sentence in this case, proportionate to the gravity of the offences committed, and the degree of responsibility of Mr. Pathmanathan, is a total period of incarceration of 12 years, or 4,383 days.
136Mr. Pathmanathan has served 537 days of pre-sentence custody as of March 29, 2023. This entitles him to enhanced credit of 806 days pursuant to R. v. Summers and s.719(3.1) of the Criminal Code, leaving a sentence to be served of 4,383-806 = 3,577 days = 9.8 years = 9 years7months and 20 days.
137The Crown suggested the following allocation in its submission in support of a 15 year sentence less pre-sentence custody:
138Time minus PTC = 15 years (or 180 months) minus 26.5 months (PTC on a 1.5 basis) = 153.5 months OR 12.7916 years.
Allocation:
4814-998-21-45000794 (original 24 count information)
4814-998-21-45003045 (subsequent 68 count information with Canadian victims)
s. 163.1 Offences: TOTAL 4 YEARS
Make CP: 8 (Counts 4, 15, 26, 37, 46, 53, 58, 64)
Make available CP: 4 (Counts 40, 49, 61, 67)
Access CP: 1 (Count 24, Info 4814-998-21-45000794)
Possess CP: 2 (Count 25, Info 4814-998-21-45000794)
139The Crown submits that the sentences for the s.163.1 offences can run concurrently on all counts, but must be consecutive to the following grouping (sex offences against children):
Child Sex Offences: TOTAL 8.7916 YEARS (or approximately 8 years and 9.5 months)
Child 1 K.Y. – luring (Count 2), voyeurism Count 11), make sexually explicit material avail (Count 9) – 15.17 months (broken down as: 6 months MM for making sexually explicit material available + 9.17 months for remaining offences)
Child 2 C.M. – luring (Count 13), voyeurism (Count 22), make sexually explicit material avail (Count 19) – 15.17 months (broken down as: 6 months MM for making sexually explicit material available + 9.17 months for remaining offences)
Child 3 M.O. – luring (Count 24), voyeurism (Count 33), make sexually explicit material avail (Count 31) – 15.17 months (broken down as: 6 months MM for making sexually explicit material available + 9.17 months for remaining offences)
Child 4 G.A. – luring (Count 35) – 12 months
Child 5 C.L. – luring (Count 44) – 12 months
Child 6 N.H. – luring (Count 52) – 12 months
Child 7 L.D. – luring (Count 57) – 12 months
Child 8 E.R. – luring (Count 63) – 12 months
*Must run consecutive to each child and consecutive to the s 163.1 offences
Offences that ARE NOT subject to 718.3:
Criminal harassment: 5 (Counts 10, 32, 56, 62, 68) – 3 years concurrent
Extortion: 3 (Counts 21, 41, 50) – 3 years concurrent
140I have modified the Crown’s allocation to reflect the 12 year sentence I have imposed, before taking pre-sentence custody into account.
141The sentence to be served, after deducting the enhanced credit for pre-sentence custody of 806 days from the 12-year sentence, is 9 years 7 months and 20 days.
142It is to be allocated as follows on the 2 informations containing the counts to which Mr. Pathmanathan plead guilty:
(i) 4814-998-21-45000794 (original 24 count information)
(ii) 4814-998-21-45003045 (subsequent 68 count information with Canadian victims)
The s. 163.1 Offences: TOTAL 1 YEAR
Make Child Pornography: 8 (Counts 4, 15, 26, 37, 46, 53, 58, 64) 1 year on each count concurrent
Transmits Child Pornography: 4 (Counts 40, 49, 61, 67) 1 year on each count concurrent
Access Child Pornography: 1 (Count 24, Info 4814-998-21-45000794) 1 year concurrent
Possess Child Pornography: 1 (Count 25, Info 4814-998-21-45000794) 1year concurrent
143The sentences of 1 year on the s.163.1 counts are concurrent on all counts, but consecutive to the following grouping (sex offences against children):
Child Sex Offences: Total 8 years
Child 1 K.Y. – luring (Count 2), voyeurism Count 11), make sexually explicit material available (Count 9) – 1 year concurrent on each count, but consecutive to all other sentences for other offences
Child 2 C.M. – luring (Count 13), voyeurism (Count 22), make sexually explicit material available (Count 19) – 1 year concurrent on each count, but consecutive to all other sentences
Child 3 M.O. – luring (Count 24), voyeurism (Count 33), make sexually explicit material available (Count 31) – 1 year concurrent on each count, but consecutive to all other sentences
Child 4 G.A. – luring (Count 35) – 1 year consecutive
Child 5 C.L. – luring (Count 44) – 1 year consecutive
Child 6 N.H. – luring (Count 52) – 1 year consecutive
Child 7 L.D. – luring (Count 57) – 1 year consecutive
Child 8 E.R. – luring (Count 63) – 1 year consecutive
Offences that are not subject to 718.3 (7) :
Criminal harassment: 5 (Counts 10, 32, 56, 62, 68) –1 year on each count concurrent with all other sentences
Extortion: 3 (Counts 21, 41, 50) – 7 months and 20 days on each extortion count concurrent to each other, but consecutive to all other sentences.
Total Sentence to be Served: 9 years, 7 months and 20 days.
Ancillary Orders
144The defence does not oppose the following ancillary orders which are requested by the Crown and are granted on consent:
(i) An order of prohibition pursuant to section 161(1) (a) - (d) of the Criminal Code. for a period of 10 years.
(ii) A Forfeiture Order in the form submitted by the Crown;
(iii) An order requiring Mr. Pathmanathan to comply with the Sex Offender Information Registration Act for a period of 20 years pursuant to section 490.013(2) of the Criminal Code.
(iv) An order that Mr. Pathmanathan provide a DNA sample pursuant to section 487.05 of the Criminal Code.
145I would like to thank counsel for their assistance and professionalism in their conduct of this matter.
Date: March 29, 2023 ______________________________
Justice David Porter
