Warning and Non-Publication Order
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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.
Ontario Court of Justice
DATE: 2025-05-07
COURT FILE No.: Pembroke 21-1142
Between:
His Majesty the King
— AND —
J.V.
Before Justice J.R. Richardson
Heard on March 3, 2025
Reasons for Judgment released on May 7, 2025
Counsel:
Conor Kyte — counsel for the Crown
Marni Munsterman — counsel for the accused
Introduction
1The issue in this case is whether the offender, who would normally be facing an upper reformatory or low penitentiary sentence for the crime of luring, should receive a lower reformatory or conditional sentence due to:
a) the inability of the reformatory to accommodate his physical health problems, particularly his Parkinson’s Disease;
b) the fact that at the time he committed the offence he was taking a drug for his Parkinson’s Disease that reduced his inhibitions, thereby establishing “diminished moral blameworthiness”;
c) the fact that he has a neurocognitive disability thereby establishing “diminished moral blameworthiness.”
Facts
2On March 3, 2025, JV entered a plea before me to one count of Luring, contrary to section 172.1(1)(b) of the Criminal Code.
3At the time of the offence, the accused was 49 years of age. He was residing in Renfrew.
4On August 13, 2021, JV had a conversation with an individual who he believed was a 14-year-old female. Once he learned that the person was 14, he discontinued the conversation.
5On August 30, 2021, JV re-engaged in the conversation. He exchanged text messages and they discussed sexual related topics. He sent the person a photo of his penis. He made arrangements to meet the person for the purposes of engaging in sexual intercourse.
6Unknown to JV, the person he was conversing with was a private citizen who poses as a female youth in order to catch child predators.
7Rather than call the police to report his findings, this person met JV and confronted him about his intentions to have sex with a 14-year-old. This resulted in a verbal altercation between JV and this person. Police were then called.
8When police attended, JV gave a cautioned statement. He was released at the scene without charge. He was arrested and charged on September 21, 2021.
9Defence counsel, on JV’s behalf, agreed to those facts. She also advised me of the following facts which the Crown did not contest:
a) JV was not initially seeking out someone who was “under age”. He was looking for a female who was 18 or 19 years old;
b) JV had difficulty deciding whether he should proceed with the meeting;
c) The private citizen posted videos of JV on social media. Some of those videos remain on social media today.
10The Crown seeks a carceral sentence of nine months in the reformatory. Defence seeks a conditional sentence in the range of 12 to 15 months.
JV’s Criminal Record
11JV has a criminal record with one entry for Dangerous Driving from 2000 for which he received a very modest fine. The record is so old and so unrelated that it is of little use to the Court in determining sentencing.
Pre-trial Discussions
12I originally became involved with this case in April 2022 as a Judicial Pretrial Judge. During the course of those discussions, I was advised that JV has significant mental health issues and he also suffers from Parkinson’s Disease.
13The parties agreed that an assessment with respect to whether JV was criminally responsible was appropriate and the Court ordered this assessment. I have discussed its contents below.
14Defence counsel also intended to bring an application for a declaration of invalidity with respect to the mandatory minimum sentence for Luring. Once the mandatory minimum sentence was struck down defence counsel abandoned that.
15The parties ultimately agreed that the accused would proceed to guilty plea before me and there would be an argument as to the appropriate sentence.
Dr. Venema’s Assessment
16Defence filed an assessment completed by a psychologist, Dr. Henry Venema, dated December 6, 2019. This assessment has been referred to in later reports of Dr. Gray and Dr. de Laplante, which I have discussed below.
17This assessment was directed to JV’s parents, which demonstrates that they were primarily responsible for assisting JV up until they were no longer able to do so. The results demonstrate:
a) Low average score in Verbal Comprehension.
b) Average score in Perceptual Reasoning.
c) Low average score in Full Scale IQ.
d) Scores in the first percentile for General Adaptives Composite, Practical Skills (community use, home living, self care).
e) Scores in the third percentile for Socialization.
f) Scores in the first percentile for Conceptual skills.
18Dr. Venema concluded that, “It is evident from these results that his adaptive skills are limited and managing adult life independently presents some challenges.”
The NCR Report
19On consent, a report of Dr. Neil de Laplante, a Forensic Psychiatrist with the Royal Ottawa Hospital, dated July 8, 2022 was filed as Exhibit 4.
20Dr. de Laplante is known to this Court to be a qualified forensic psychiatrist. Neither party took issue with his qualifications to give an opinion.
21The report revealed that:
a) JV has no children and he has never married;
b) He has lived in the same apartment for 25 years;
c) He has been supported on ODSP since he was diagnosed with learning difficulties at the age of 18;
d) He has Parkinson’s Disease which affects his mobility;
e) He has one sister, who he does not have contact with;
f) JV was adopted as an infant. He did not know anything about his biological family, other than he was the product of an incestuous relationship between his mother and his grandfather. He told Dr. de Laplante that he was a “rape baby”;
g) JV’s adoptive father died in May 2022. His mother suffered from dementia. Until his parents’ death and incapacity, they managed JV’s affairs;
h) JV stated that his adoptive family raised him well. There was no abuse in the home;
i) JV was bullied through elementary school. He described himself as a loner;
j) He had one romantic relationship when he was in his twenties. It lasted two years. They did not cohabit;
k) JV had difficulty in school. He had learning problems and he was placed in remedial classes in both elementary school and high school. He stated that he was lucky to graduate and reported that his grades were bad. He attempted post-secondary education in Hotel and Restaurant Management but decided it was not for him;
l) He worked in fast food and food delivery jobs through high school. He last worked at a fast food restaurant in 2017;
m) A psychological assessment was completed in December 2019 which showed that JV was in the low average range (10th percentile) of intelligence (this is Dr. Venema’s assessment which I have discussed above);
n) He recalled having a concussion as a child after falling off his bike. He also had a fight in high school where he lost consciousness;
o) He was diagnosed with Parkinson’s Disease when he was in his twenties. When Dr. de Laplante interviewed him, he noted that he had a severe tremor, a shuffling gait and a tendency to drag his left foot;
p) He is on a number of medications for Parkinson’s Disease as well as anti-depressants, sedatives, medication for diabetes and medication to control cholesterol;
q) Given that he is adopted, there is little information available about his family history;
r) He does not have any difficulties with alcohol or drugs;
s) He is not Indigenous;
t) He stated that he had an episode of depression in his 30s after he was accused of molesting a young boy. He was admitted to Pembroke Hospital for two weeks. Records with respect to this period of hospitalization were not available;
u) There is a possibility that he has sleep apnea. He is obese;
v) He has had periods where he has felt suicidal but has never acted on it. He does not endorse panic attacks or symptoms consistent with mania, psychosis, obsessive-compulsive disorder or post traumatic stress;
w) He spends his days playing video games;
x) He has had body image issues, particularly related to the size of his penis, since his 20s;
y) He stated that he has a high sex drive. He has never paid for sexual activities. He denied looking at pornography except for one occasion when he was a teenager. He has not attended a strip club since he was in college;
z) He identifies as heterosexual, with an interest in adult women who are physically fit. He denies voyeurism, sado-masochism, killing or rape, transvestitism, frotteurism or pedophilia. Notwithstanding the nature of his charges, he denied a sexual interest in children or adolescents.
22A full neuropsychological assessment was completed which revealed the following:
a) Low Average (12th to 16th percentiles) scores for verbal comprehension, working memory processing speed and full scale IQ;
b) He has average (45th percentile) scores for Perceptual Reasoning;
c) His cognitive ability is at the 14th percentile;
d) He is in the borderline range (between the 5th and 9th percentiles) for mathematics, graphomotor processing speed, working memory;
e) He is in the impaired range (second percentile) for inhibition;
f) He was found to have given a genuine performance on the testing and may well have over-represented his actual ability, giving earlier findings (the December 2019 assessment).
23The psychologist performing the assessment stated: “[JV] is considered as having neurodevelopmental disorder based on Low Average IQ and very low adaptive functioning based on Dr. Venema’s assessment.”
24The psychologist also confirmed that JV has a developmental service worker, support from CMHA Ottawa and a PSW attends at his home twice a week to assist him. His finances are managed by the Public Guardian and Trustee.
25Dr. de Laplante diagnosed:
a) Neurodevelopmental disorder;
b) Parkinson’s Disease; and
c) Persistent depressive disorder.
26Dr. de Laplante found that JV did not meet the criteria for being not criminally responsible. He suggested that JV would be suitable for placement at St. Lawrence Valley Correctional Centre if sentenced to a period of incarceration. If released into the community, Dr. de Laplante recommended that JV follow the recommendations of his physician and he be restrained from having contact directly or indirectly with persons under the age of 16. Dr. de Laplante also recommended a Sexual Behaviours Assessment.
The Sexual Behaviours Assessment
27A Sexual Behaviours Assessment was completed by Dr. Jonathan Gray of the Royal Ottawa Hospital. It is dated January 24, 2023 and filed as Exhibit 2 in this proceeding.
28It reveals the following additional information:
a) Dr. Gray was able to obtain information concerning JV’s admission to the Pembroke Hospital in 2006. It revealed the following:
i) He was admitted for depression symptoms related to being accused of molesting a friend’s three-year-old son;
ii) He was in hospital for ten days;
iii) When he was released, his mood had improved but he continued to be labile;
iv) He was treated with anti-anxiety medication and sleep medication.
b) JV has been working with Nora Kasdorff for two years. Ms Kasdorff indicated that:
i) He is “relatively high functioning” and can live independently. She meets him every week or two;
ii) It has been difficult to get him to be active outside the house. He wants to stay home and play video games;
iii) He has complained to her that he has met people online who want money from him;
iv) His finances are managed by the Public Guardian and Trustee;
v) It is difficult to find activities that will provide him with social stimulation;
vi) He has expressed an interest in moving to Ottawa.
c) Dr. Gray assessed JV against various psychometric instruments and found that:
i) JV is an average level of risk to reoffend on the Static-99 risk assessment tool, a tool that is well known for measuring static risk factors for sex offenders;
ii) JV is at a moderate level of risk to reoffend on the Stable-2007 risk assessment tool. This tool is well known for measuring dynamic risk factors for sex offenders;
iii) JV’s “composite” assessment involving both risk assessment tools is at the average level.
d) Dr. Gray diagnosed JV as meeting the criteria for “neurodevelopmental disorder with borderline intelligence.” He stated:
This condition affected his judgment, and likely is one factor underlying his impulsivity. While not impairing his cognitive functioning sufficiently to render him incapable of making moral choices, it remains a significant factor facilitating his offences.
e) Dr. Gray revealed the evidence in detail in relation to the man who confronted JV. He noted that the man used the photo of a 24 year old woman on his profile and indicated on his profile that he was 18. He told JV that he was 14. JV discontinued the conversation at that point. He returned to the conversation and agreed to meet the person. Dr. Gray opined:
The scenario above does not demonstrate any evidence of a sexual interest specifically in pre-pubescent females.
[JV] was initially drawn in with a picture of a woman in her 20s. He then continued with the profile listing her age as 18, an age at which the person certainly would have been post-pubescent. The private citizen then said he is 14. Given most females are at least pubescent, if not post-pubescent, at age 14, and given that the picture corresponding to the “14 year old” is a 24 year old woman, [JV] would have in mind that he was interacting with a post-pubescent female, even if he believed her to be 14 in her chronological age.
Therefore, even if [JV] was acting inappropriately towards what he thought was a minor female, his actions were not motivated by a sexual interest towards pre-pubescent females. His actions in the context of the index offences are not suggestive of pedophilic disorder, but rather opportunistic on a background of low cognitive functioning causing poor judgement.
29Dr. Gray made the following notable findings:
a) JV was socially isolated for many years. When the offence was committed, he did not have the professional support that he now has (Ms Kasdorff);
b) JV has no significant experience with long-term relationships. His developmental delay contributed to his lack of success in finding a suitable partner. He also has social skills deficits and issues with self-esteem;
c) At the time of the offences, he was vulnerable to being exploited and subjected to negative social influences among strangers using chat sites;
d) He has high sex drive;
e) He has poor cognitive problem-solving abilities, which hampers his “ability to ‘say no’” to people who are exploiting him;
f) His conduct in the incident in question – refusing to have anything further to do with the conversation, then going back to it, then agreeing to meet – demonstrates impulsivity.
30Dr. Gray recommended that:
a) JV needs to get involved in more structured social activities outside his home. Given his reluctance to go outside his home with Ms Kasdorff, a condition reinforcing this would be helpful;
b) He would benefit from counselling to address better problem-solving abilities and deal with “life stressors”;
c) Time spent on the internet is a risk factor for him;
d) He should not communicate with anyone under the age of 18 online;
e) He should not work or volunteer in a position that involves working directly and unsupervised with females under 14. I note that although Dr. Gray stopped short of diagnosing JV as a pedophile, he made this recommendation due to the nature of his index offenses;
f) If given a reformatory sentence, he should be incarcerated at St. Lawrence Valley;
g) He needs counselling to assist him in working on problem-solving skills, develop better coping mechanisms and deal with anxiety and boredom. General counselling with a “skilled therapist” will suffice. He does not need sex offender specific counselling.
Letter from Dr. Grimes
31Defence counsel filed (Exhibit 3, Tabs 1 and 2) the clinical notes from Dr. Grimes who practices at the Parkinson’s Disease and Movement Disorders Clinic at the Ottawa Civic Hospital dating back to June 20, 2019. These notes reveal the following:
a) It is clear that JV’s Parkinson’s Disease symptoms have been gradually getting worse.
b) During this period of time, his father died and his mother was diagnosed with Alzheimer’s Disease and also passed away.
c) During this period of time, he was largely living on his own but that has also become increasingly difficult for him.
d) He had some difficulty swallowing. He had to attend at the Renfrew Hospital to have food caught in his throat extracted. He also drinks coke to try to dissolve his food and will frequently have to vomit it back up to clear any obstruction. These episodes have become less common.
e) He spends his days at home playing video games.
f) He has consistently been gaining weight.
g) He does not exercise.
h) He acknowledged participating in online chat groups but denied any interest in child pornography. He had stated in 2023 that he had lost money on pornography web sites. In January 2025, he stated that his sexual urges are resolved but indicated that he was using pornographic websites “rarely”. This is contrary to information that JV provided in reports of both Dr. de Laplante and Dr. Gray.
i) Dr. Grimes noted, however, that some drugs used to treat Parkinson’s Disease can drive and aggravate impulse control behaviours.
j) JV expressed concern about not getting his medication if he were sentenced to a period of incarceration.
k) JV reported that living in Renfrew is a big source of stress and he wants to live in Ottawa.
l) In 2025, JV reported having a new female friend that he wants to spend time with.
Letter from Nora Kasdorff
32Nora Kasdorff is an Adult Protective Worker with Renfrew County Family and Children Services. She has been providing services to JV since 2021. She provided some notes and a letter (which defence counsel filed as Exhibit 3, Tabs 4 and 5). These documents reveal the following about her involvement with JV:
a) JV did not have developmental services supports before June 2021 because his parents took care of him. As of June 2021, they could no longer care for him which hastened her involvement.
b) Due to his Parkinson’s Disease, he requires mobility support and a barrier-free environment.
c) He walks slowly and has one foot that drags.
d) He has tremors associated with Parkinson’s Disease that have worsened and make many areas of daily living challenging.
e) He has swallowing issues that resulted in hospitalization and extraction of food from his esophagus.
f) He has respiratory issues that result in difficulty sleeping. He often sleeps upright in a chair.
g) Through a formal capacity assessment, he has been found to be incompetent for managing his finances and being vulnerable to financial exploitation by others. His financial affairs are managed by the Public Guardian and Trustee.
Email Chain from Amber Mahoney
33Amber Mahoney is a nurse employed at the Ottawa Carleton Detention Centre.
34An email chain from her was filed as Exhibit 1. She advised that medications, other than insulin, are administered in the OCDC twice a day. She also advised that if JV were rendered into custody, the physicians servicing OCDC would be responsible for ordering his medication.
35Attached to this email chain was an email between JV and his counsel in which he expressed concern that he takes medication four times a day.
Crown Submissions
36Crown counsel advocated for a nine-month custodial sentence with a recommendation that JV serve his sentence at the St. Lawrence Valley Treatment Centre. Crown counsel also seeks an order pursuant to the Sex Offender Information Registration Act for twenty years, an order for the taking of JV’s DNA and an order pursuant to section 161(a) through (d) of the Criminal Code.
37Crown counsel argued that the post-Friesen range for offences of this nature is three to five years in the penitentiary. He noted that if the offender engages in luring with an undercover police officer, who is posing as a child, the sentence range is between three and four years.
38Crown counsel argued that the Crown’s position involves a carceral sentence well below these ranges which pays sufficient heed to the individual circumstances of JV.
39Crown counsel reminded the court that the fact that JV was communicating about a “fictitious child” is not aggravating.
40Crown counsel argued that JV’s physical and mental health problems can be accommodated at St. Lawrence Valley.
Defence Submissions
41Defence counsel advocated for a conditional sentence in the range of 12 to 15 months, and three years probation.
42Defence counsel argued that this case involves not only significant physical and mental health problems that render a carceral sentence impractical, but mental capacity issues that reduce his moral blameworthiness and bring JV into the “exceptional circumstances” category.
43Defence counsel cited the following mitigating factors:
a) JV’s offence came to the attention of the police because of the efforts of a private citizen.
b) There is no evidence of online trolling or grooming.
c) This is more a situation of loneliness and opportunity to commit the offence rather than a case where the offender was seeking out the victim.
d) Although the plea has come very late in the process, JV has always indicated that he wishes to plead guilty and take responsibility for the offence.
e) JV expresses remorse for his crime.
f) He believed that he was speaking to someone who was at least 18 years of age for most of the conversation. He discontinued the conversation when he found out that the fictitious woman was 14. He then went back to it.
g) The medication that he was on to treat his Parkinson’s Disease can cause issues with impulse control.
h) He has significant mental health and mental disability issues as evidenced by the documents filed from Dr. Grimes, Dr. de Laplante, Dr. Gray, and Ms Kasdorff.
i) The custodial institution is not going to be able to accommodate JV’s specific medical needs.
j) JV has been pre-screened by Recovery Science as someone who qualifies for electronic monitoring (see Exhibit 5).
JV’s Address to the Court
44When I gave JV an opportunity to address me before sentencing, he told me that he felt “God-awful” for what he did. He expressed the opinion that there is no excuse for his behaviour and that what happened bothers him.
45He also indicated that he had strong feelings that he was detected through the efforts of the private citizen, as opposed to the police.
Analysis
The Criminal Code Sentencing Provisions
46Section 172.1(1)(b) of the Criminal Code (Luring) carries a maximum sentence of 14 years. The minimum sentence of one year was struck down by the Supreme Court of Canada in R. v. Bertrand Marchand, 2023 SCC 26.
47Section 718 of the Criminal Code 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 in 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.
48Section 718.01 sets out the following sentencing objectives when dealing with offences against children:
When a court imposes a sentence for an offence that involved the abuse of a child under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
49Section 718.1 of the Criminal Code establishes the fundamental principle of sentencing:
“A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”
50Section 718.2 of the Criminal Code sets out “other sentencing principles”:
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, and, without limiting the generality of the foregoing,
(i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,
(ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(ii.2) evidence that the offender involved a person under the age of 18 years in the commission of the offence,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
(iii.2) evidence that the offence was committed against a person who, in the performance of their duties and functions, was providing health services, including personal care services,
(iv) evidence that the offence was committed for the benefit of, at the direction of or in association with a criminal organization,
(v) evidence that the offence was a terrorism offence,
(vi) evidence that the offence was committed while the offender was subject to a conditional sentence order made under section 742.1 or released on parole, statutory release or unescorted temporary absence under the Corrections and Conditional Release Act, and
(vii) evidence that the commission of the offence had the effect of impeding another person from obtaining health services, including personal care services,
shall be deemed to be aggravating circumstances;
(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 and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Sentencing is an Individualized Process
51It is well developed in our law that sentencing is a delicate and highly individualized process. As my colleague Justice March has often said, “No two offenders are alike”. See also R. v. Parranto, 2021 SCC 46 and R. v. Lacasse, 2015 SCC 64.
The Cardinal Principle of Sentencing is Proportionality
52In R. v. Lacasse, supra, the Supreme Court of Canada determined that the “cardinal principle” of sentencing law is the principle of proportionality; that is, the more serious the crime and the greater the degree of responsibility, the more severe the sentence will be. This must be balanced against the moral blameworthiness of the offender.
The Principles of Sentencing in Cases of Sexual Offences Against Children
53Following the decision of the Supreme Court in R. v. Friesen, 2020 SCC 9, it is now well established that denunciation and deterrence are the primary sentencing principles in cases of sexual crimes against children including sexual assault, sexual interference, child pornography and luring. Additionally, Friesen called upon sentencing courts to increase sentences for sexual offences against children, noting that penitentiary sentences should not be unusual.
54In Friesen’s wake, sentences for sexual offences against children have indeed increased. Penitentiary sentences are now the norm. Reformatory sentences are exceptional; conditional sentences are rare. Pre-Friesen cases must be approached cautiously.
55This general trend was recognized by the Court of Appeal in R. v. MM, 2022 ONCA 441, where, at paragraph 16, the Court found as follows:
Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so.
56Recently, in R. v. Pike, 2024 ONCA 608, Chief Justice Tulloch discussed how sentencing judges should interpret the term “exceptional circumstances” in MM, stating, at paragraphs 180 to 182:
I must reconcile the “exceptional circumstances” term that M.M. used to express this point with the Supreme Court’s decisions in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, and Parranto. At first glance, M.M.’s use of this term might seem contrary to these cases, which respectively hold that appellate courts can neither create presumptions that conditional sentences are inappropriate for specific offences (Proulx, at paras. 80-83), nor require exceptional circumstances to depart from a range (Parranto, at para. 40).
But in my respectful view, M.M. did not and could not have intended to depart from Proulx by creating an offence-specific presumption against conditional sentences. Rather, it used the “exceptional circumstances” term to convey that, since Proulx, Parliament has increased maximum sentences and prioritized denunciation and deterrence for sexual offences against children and, further, that the courts’ understanding of the harmfulness and wrongfulness of these offences has deepened: Friesen, at paras. 109-110; see M.M., at paras. 13-15. Thus, while there is no presumption against conditional sentences, these post-Proulx changes require more compelling personal circumstances, mitigating factors, and/or the absence of aggravating factors, to justify a conditional sentence than might have been the case when Proulx was decided more than two decades ago.
Nor, in my view, did M.M. intend to depart from Parranto by requiring exceptional circumstances to impose a conditional sentence. Rather, M.M. used “exceptional circumstances” as shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate, as in R. v. Padda, 2019 BCCA 351, at para. 36. Not only is there no closed list of such circumstances and factors (M.M., at para. 16), but multiple seemingly non-exceptional factors taken together, such as being a young first offender with family support who poses little risk and takes responsibility for his actions, can collectively render a conditional sentence proportionate: R. v. Faroughi, 2024 ONCA 178, 435 C.C.C. (3d) 1, at para. 99. This is consistent with Parranto’s holding that sentencing must focus on proportionality, not pigeonholing cases into ill-defined exceptional circumstance categories: at para. 40; see R. v. Ellis, 2022 BCCA 278, 417 C.C.C. (3d) 102, at para. 118.
The Principles of Sentencing in Cases of Luring
57This case involves communication between JV and a civilian individual posing as a 14-year-old girl.
58Until Friesen, there was a tendency to view moral culpability of the offender caught in an undercover police sting operation as somehow lessened by the effect that there is no “real victim”.
59At paragraphs 93 and 94, Friesen established the following principles with respect to these cases:
a) The absence of a specific victim is relevant but it should not be overemphasized.
b) The offender cannot take credit for this fact.
c) It does not detract from the degree of responsibility of the offender for the offence.
d) Police sting operations are an effective tool in combatting child luring.
e) Children cannot be expected to police the internet. They need help.
f) Child luring should never be viewed as a victimless crime.
60In R. v. Bertrand Marchand, 2023 SCC 26, at paragraphs 37 to 45, Justice Martin established the following principles with respect to harm that can be caused by child luring:
a) Even where the interactions occur online, the offender’s conduct can constitute a form of psychological sexual violence that has the potential to cause serious harm, which is often more pervasive and permanent than physical harm. It is now well established that sexual offences against children cause significant harm. Victims of luring often suffer negative sexual development, substance misuse and depressive symptomology.
b) Online communications allow the offender to “get in the victim’s head” and abuse the victim remotely which can lead to serious long term psychological consequences.
c) Victims of luring often feel that they actively participated in their own abuse which increases self-blame, internalization and shame, which in turn, worsens psychological harm.
d) These effects on victims have “harmful ripple effects” on their families, community and society. It can destroy trust in friends, families and social institutions.
e) It may be helpful to differentiate between contact-driven luring and luring which occurs entirely online.
i) Contact-driven luring requires the Court to consider whether the online communication caused psychological harm that is separate and apart from any “hands-on” offence.
ii) Luring which occurs entirely online arises in situations where the offender has no intention to engage in hands on offending.
iii) There is also a hybrid of the two where the aim of the luring is to commit a designated offence which occurs entirely online. In this case, the offender uses technology to build a relationship, assert control and psychologically manipulate young persons. The offender then may also use that technology to carry out sexual acts.
f) Contact-driven luring is not necessarily more or less harmful than luring that leads to sexual abuse which occurs entirely online. The severity of the harm depends on the goals of the offender, the characteristics of the victim and the dynamic between the offender and the victim.
61It is open for a sentencing judge to infer the presence of harm, even in situations where no Victim Impact Statement has been filed. Citing Friesen, supra, Justice Martin found that the potential for reasonably foreseeable serious harm is present even if there is no actual harm, or to put it more accurately, no evidence of actual harm. See paragraphs 75-76.
62Sentencing judges must also consider whether there is evidence of grooming. Justice Martin defined grooming this way at paragraph 51:
Grooming is a process which allows the offender to forge a close relationship with a victim to gain trust, compliance and secrecy for the purpose of eventually engaging in sexualization and abuse (Rayo, at para. 149). The jurisprudence has yet to identify a universal definition of grooming. Understandably, this is in large part due to the difficulties in determining where the process begins and ends, as well as the variety of behaviours that may be involved depending on the offender, the victim, and the context. Indeed, grooming can involve, but is not limited to “rapport building, incentivization, disinhibition, and security management” (I. A. Elliott, “A Self-Regulation Model of Sexual Grooming” (2017), 18 Trauma, Violence, & Abuse 83, at p. 88). It is “a slow and gradual process of active engagement and a desensitization of the child’s inhibitions — with an increasing gain in power and control over the young person” (Rayo, at para. 139, quoting M. Ospina, C. Harstall and L. Dennett, Sexual Exploitation of Children and Youth Over the Internet: A Rapid Review of the Scientific Literature (2010), at p. 7).
63At paragraphs 52 to 63, Justice Martin instructed sentencing judges to bear the following circumstances in mind with respect to grooming:
a) Grooming need not culminate in a sexual act to be harmful.
b) Judges must focus on the character, content and consequences of the messages as well as whether the communication resulted in the psychological manipulation of the child.
c) The presence of grooming may be aggravating with respect to sentence.
d) The absence of grooming is not mitigating.
64At paragraphs 72 to 73, Justice Martin set out the following non-exhaustive list of mitigating factors:
a) Whether the offender pleaded guilty;
b) Whether the offender expressed genuine remorse or gained insight into the offence;
c) Whether the offender has undertaken rehabilitative steps such as counselling and treatment;
d) Whether the offender has a prior criminal record;
e) Whether the offender has been honest and cooperative throughout the sentencing process;
f) The offender’s age at the time of the offence;
g) Whether the offender had a stable family life;
h) Whether the offender had stable employment;
i) The presence of addiction and mental health concerns and evidence of the offenders progress in overcoming them.
65At paragraphs 74 to 87, Justice Martin set out the following aggravating factors to the sentence in the case of luring:
a) The presence of grooming;
b) The character of the communications between the offender and the victim, including whether the duration and frequency of the communications were long-term. It is noted that while a longer period of communications are aggravating, shorter periods are not mitigating. Sending a large volume of messages or sending messages in a frequent or non-relenting way is aggravating;
c) Whether the communications were sexually explicit and objectifying, involved graphic sexual content, made use of manipulative communications such as expressions of love and affection or made use of trickery and lies;
d) Whether the victim was encouraged to share images;
e) Whether the victim was sent explicit images;
f) Whether the offender used a false name, identity or age;
g) Whether the offender used deceitful tactics such as encouraging the victim to erase the communications, discouraging the victim from telling her parents or other family members, encouraging the use of a platform that erases communications to avoid detection, or suggesting a more secure platform;
h) Whether the offender abused a position or relationship of trust, including parent-child, teacher-child and family friend-child or exploited the role of confidante;
i) The exploitation of younger children is aggravating. The exploitation of adolescent children is not mitigating;
j) Whether the victim was particularly vulnerable, such as the case of children in care of the Children’s Aid Society;
k) Whether there was a wide gap in ages between the victim and the offender.
66The Court of Appeal’s decision in R. v. MV, 2023 ONCA 724 was released the same day as R. v. Bertrand Marchand.
67In MV, Justice Paciocco, writing for himself and Justice Coroza, found that the upper end of the sentencing range for luring offences should be set at five years.
68Justice Paciocco noted the tension in the caselaw between a line of cases anchored by Justice Code in R. v. Moolla, 2021 ONSC 3702 on the one hand and decisions such as Justice McArthur’s decision in R. v. Collier, 2021 ONSC 6827 on the other.
69In Moolla, Justice Code found that the post-Friesen range for Luring was three to five years.
70In Collier, Justice McArthur declined to follow Moolla, noting that the Supreme Court’s reasoning in Friesen was better suited to violence-based sexual offences against children including sexual assault and sexual interference.
71In MV, the Court of Appeal adopted the five year upper limit in the range from Moolla but found that there was no lower limit in the range for the following reasons (see paragraphs 81 to 87):
a) Luring is an “inchoate offence”, or a “preparatory crime” that is designed to prevent assault-based sexual offences against children before they are committed. Typically preparatory offences carry a lower penalty than “fully consummated offences”. Luring therefore carries a range of sentence lower than assault-based sexual offences against children.
b) The comments at paragraph 114 in Friesen about the normal range of sentence for sexual offences against children as being mid-single digit penitentiary sentences with upper-single digit and double-digit penitentiary not being unusual or rare were aimed at addressing violence-based offences. The general principles in Friesen apply.
c) Luring is “a serious offence that will generally require incarceration”. It is however, a “broad offence which can be committed by a wide range of offenders in varied situations, some of which may not deserve elevated levels of punishment. Thus, the sentencing range “must not be narrow” or “have a harsh lower end.”
72MV continues to be good law. See R. v. AV, 2025 ONCA 6, which is the most recent Court of Appeal decision upholding MV.
Principles of Sentencing with respect to Medical Conditions
73In R. v. Rule, 2021 ONCJ 264, Justice Baxter dealt with an offender convicted of child pornography offences. He was 70 years of age. He had cancer which was in remission. As a result of his cancer, he wore and ostomy bag which required regular care. He suffered from COPD and had also suffered from a pulmonary embolism. He needed regular exercise. Justice Baxter imposed a custodial sentence. With respect to the offender’s health issues, she stated at paragraph 51 that these issues “…. can be addressed in a correctional facility as it is the state’s responsibility to protect and provide proper medical care for those in its care or custody.”
74This finding was undisturbed on appeal. The Court of Appeal found that Justice Baxter “appropriately considered” the offender’s health challenges, that some of the health challenges had resolved between the sentencing and the appeal and that “[t]he evidence does not establish that his medical conditions could not be treated in a custodial institution: R. v. Rule, 2023 ONCA 31 at paragraph 8.”
75I note that the finding in Rule is in keeping with other appellate authority, including R. v. Drabinsky, 2011 ONCA 582 at paragraphs 169 and 170. See also R. v. Insanally, 2024 ONSC 722.
Application of the Sentencing Principles to JV’s Case
76JV does not have a prior, relevant criminal record. This is mitigating.
77JV entered a guilty plea. This is mitigating.
78JV has expressed remorse. This is mitigating.
79JV has significant medical problems, in particular Parkinson’s Disease. He must continue to see Dr. Grimes on a regular basis.
80Parkinson’s Disease is an irreversible medical condition. JV has a significant tremor as a result of his Parkinson’s. It has also affected his gait. He has had at least one situation in the past where it has affected his ability to swallow.
81He must have prescription medication four times a day. Based on the email chain from Nurse Mahoney, his medication regime cannot be accommodated if he is sentenced to custody in the reformatory.
82I also find that his Parkinson’s Disease makes him more vulnerable if he were in-custody. I have serious reservations about whether he would receive adequate care for his Parkinson’s Disease if he were sentenced to a carceral sentence in the reformatory.
83JV has persistent depressive disorder.
84JV has a neurodevelopmental disorder. He functions at a low-average level. Until his parents recently passed away, they managed his affairs and provided for his care. Since his parents passed away, he receives assistance from an Adult Protective Worker. His ability to care for himself is tenuous. The Public Guardian and Trustee makes financial decisions on his behalf. His neurodevelopmental disorder is life-long. It is not reversible with treatment. I find it makes him even more vulnerable in a custodial setting. If he is sentenced to a period of incarceration he will not have the assistance of his Adult Protective Worker.
85In my experience, if sentenced to a period of incarceration in the reformatory, JV would likely be held at Ottawa Carleton Detention Centre until classification and then transferred out. There is a strong likelihood, but not an absolute certainty, that he could serve a reformatory sentence at the St. Lawrence Valley Treatment Centre. Otherwise, in my experience, he would be transferred to the Central East Correctional Facility.
86For reasons I have expressed in R. v. KT, 2025 ONCJ 234 and R. v. SL, 2025 ONCJ 105, I find that if incarcerated in reformatory, he will be more likely to be subject to extremely harsh custodial conditions including overcrowding and frequent lock-down. The only possible exception to this is incarceration at St. Lawrence Valley.
87One issue which the parties did not provide me with any evidence about was whether JV’s care would be better if he were sentenced to a period of custody in the penitentiary. In my experience, conditions are generally better for offenders in the penitentiary, who are classified to a lower security rating. Given his mobility issues and vulnerability, JV would likely be quickly classified to a lower security rating.
88I understand that the parties did not turn their minds to this given the range of sentence that they were proposing and their general agreement that JV met the criteria for “diminished moral blameworthiness” which would reduce his sentence outside the penitentiary range. I will discuss my findings with respect to “diminished moral blameworthiness” below.
89I agree that it is the duty of the penal authorities to protect and provide proper medical care to individuals in custody, but as I discussed in KT and SL, I have grave doubts that JV will receive that protection and care in the reformatory.
90I agree that JV’s neurodevelopmental disorder and Parkinson’s Disease also diminish his moral blameworthiness. There is some evidence that the medication that he was taking at the time of the commission of the offences to help control his Parkinson’s Disease may have increased his impulsivity level.
91The interplay between intellectual disability and the commission of crime, particularly sexual crime, surprisingly, is not well understood. A 2022 Swedish study found that offenders with intellectual disability are much more likely to have a sexual crime as an index crime: Edberg, H.; Chen, Q; Andine, P; Larsson, H. and Hirvikoski, T., Crimes and sentences with individuals with intellectual disability in a forensic psychiatric context: a register-based study : Epidemiology and Psychiatric Sciences 2022; 31: e2.
92I take heed with respect to the comments of Justice Martin in Bertrand Marchand regarding the various aggravating and mitigating factors that present themselves in a luring case.
93In this case, I was not shown a copy of the communications between JV and the citizen that he was dealing with. This presents the following issues as it relates to the various sentencing factors identified by Justice Martin:
a) I do not have an evidentiary basis on which to find the presence or absence of behaviour indicative of grooming. (See below where I discuss the fact that JV sent the person he thought was 14 years old a photo of his penis.)
b) I do not have an evidentiary basis on which to make findings regarding the duration and frequency of the online relationship. It would appear that the online relationship was of short duration (less than a month) and there were only two instances of communication.
c) I do not have an evidentiary basis on which to make findings with respect to the nature of the communications, including whether they were sexually explicit and objectifying, or made use of manipulative communications, trickery and lies. With respect to “graphic sexual content”, JV did send the complainant a photo of his penis, which, as discussed below, is aggravating.
d) I do not have an evidentiary basis on which to rule whether the other party to the communications was encouraged to share images. It would stand to reason that by sending her a photo of his penis, however, he was tacitly encouraging her to send him images of herself.
e) I do not have any evidentiary basis on which to rule whether JV used a false name, identity or age.
f) I do not have an evidentiary basis on which to rule on whether the offender used “deceitful tactics” to encourage the would-be victim to take steps which would hinder detection.
g) It is clear that JV was not in a position of trust or authority towards the person that he was communicating with.
h) JV was communicating with someone he believed to be 14. Communicating with a younger child would have been more aggravating.
i) I do not have an evidentiary basis on which to rule on whether JV was communicating with someone who was particularly vulnerable, such as a child in the care of a Children’s Aid Society.
j) There is a wide gap in ages between JV and his would be victim. He believed her to be 14. When the offence was committed, he was 49 – more than three times her age.
94Three things about the accused’s involvement in this case strike me as being extremely aggravating:
a) First, he considered that the person posing as the young person specifically told him that she was underage and he proceeded anyway.
I am not at all moved by the fact that the accused first dismissed the conversation because he went back to the conversation and pursued the person he understood to be a fourteen year old girl. To suggest that his moral culpability is somehow reduced by the fact that he ignored his initial instinct that this was wrong is not (but for the findings of diminished moral blameworthiness as a result of the prescription medication he was taking to combat his Parkinson’s) mitigating.
A person who is accused of murder is not rewarded because they thought about it, abandoned it, but then thought about it some more and decided to proceed. If anything, it is ordinarily indicative of a higher blameworthy state because it demonstrates that the accused is unable to control his urges, considered the wrongfulness of his intentions and proceeded anyway.
b) Secondly, there is evidence that the accused sent the person he was in conversation with a photograph of his penis. As I have set out, as per Bertrand Marchand, supra, this is aggravating.
c) Thirdly, the accused acted on the online discussions and meetings and went to meet the complainant for the purpose of committing a hands-on offence. This makes the case very different from a case where the offence occurs entirely online.
95This is very much a case where the online discussions and the meeting could have resulted in significant harm to a child.
96I am also very troubled by the fact that since the offence was committed, JV’s use of a computer remains unchecked and he may well be using a computer for the purpose of looking at pornography, something that no doubt enhances his risk to reoffend.
The Sentence Imposed
97In balancing the aggravating and mitigating factors, if I were dealing with an individual who:
a) did not suffer from moderate Parkinson’s Disease symptoms that will only worsen with time and which will make him extremely vulnerable in-custody;
b) was at the time of the offence, on medication for his Parkinson’s Disease that may have reduced his inhibitions resulting in a finding of diminished moral blameworthiness; and
c) have a significant neurocognitive disability, which also results in a finding of diminished moral blameworthiness,
I would have been inclined to impose a sentence in the area of two years in the penitentiary or two years less a day.
98I find that a carceral sentence in the reformatory, such as the Ottawa Carleton Detention Centre, would expose JV to untenable conditions. Only a placement at an institution such as the St. Lawrence Valley Treatment Centre would mitigate those conditions. Such a placement is in no way guaranteed.
99While a carceral sentence in a penitentiary may well have alleviated some concerns with respect to the quality of the health care that he would receive in custody, it does not sufficiently account for his diminished moral blameworthiness in committing the offence given the other factors I have identified. A penitentiary term of longer than two years, would also prevent me from making a probation order. A probation order is attractive because it would allow for a much longer period of supervision which would address his risk level.
100With respect to the suitability of a conditional sentence, I find that the preconditions for a conditional sentence are met.
101The only area I have some difficulty with is the issue of the risk to the public. I accept, however, that JV is largely a recluse, that he does not go out, and that it has been a struggle for his worker to identify exercise opportunities for him.
102Any issue with respect to JV committing another online offence will be attenuated by the Order that I intend to make as part of the conditional sentence, the probationary disposition that will follow and an Order that I intend to make under section 161 of the Criminal Code.
103I therefore impose the following sentence:
104JV will receive a conditional sentence of two years less a day. There will be a house arrest component of twelve months.
105JV will receive a three year probation order.
106JV will submit to an Order for the taking of his DNA. Luring is a primary designated offence.
107Pursuant to section 161(a) of the Criminal Code, I make an Order prohibiting JV from attending any public park or swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre unless he does so under the supervision of an adult who is aware of his offending behaviour. This is a lifetime order.
108Pursuant to section 161(b) of the Criminal Code, I make an Order prohibiting JV from seeking, obtaining or continuing in any employment, whether or not the employment is remunerated, or being a volunteer in any capacity, that involves being in a position of trust or authority towards persons under the age of 16 years. This is a lifetime order.
109Pursuant to section 161(c) of the Criminal Code, I make an Order prohibiting JV from having any contact, including communicating by any means, with persons who are under the age of 16 years, unless he does so under the supervision of an adult who is aware of his offending behaviour. This is a lifetime order.
110Pursuant to section 161(d) of the Criminal Code, I make an Order prohibiting JV from using the Internet or other digital network, unless he does so under the supervision of an adult who is aware of his offending behaviour. This is a lifetime order.
111Given that Luring is a “primary offence” as defined by section 490.011 of the Criminal Code that is punishable by a maximum sentence of fourteen years, pursuant to sections 490.012 and 490.013 of the Criminal Code, I make an Order requiring JV to comply with the Sex Offender Information Registration Act for a period of 20 years.
112Pursuant to section 109 of the Criminal Code, I make an Order prohibiting JV from possessing any firearm, etc. for a period of ten years.
113Given that JV is on social assistance, and given that his affairs are managed by the Public Guardian and Trustee, I find it would constitute an undue hardship for him to pay the victim fine surcharge and I order it waived.
Released: May 7, 2025
Signed: Justice J.R. Richardson
1Justice Huscroft dissented based on the final sentence that Justice Paciocco imposed in the circumstances of MV’s case. He did not address Justice Paciocco’s findings that the upper end of the range should be set at five years and there is no lower end of the range.