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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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: 2025-06-10
COURT FILE No.: Newmarket 4911 998 23 91108083 00
BETWEEN:
His Majesty the King
— AND —
Hesham Mahbub
Before Justice A. A. Ghosh
Heard on March 28, April 10, and April 28, 2025
Reasons for Sentence released on June 10, 2025
C. Downing — counsel for the Crown
N. Fakih — counsel for the defendant Hesham Mahbub
GHOSH J.:
Overview
1Mr. Hesham Mahbub pleaded guilty to “Child Luring”, “Sexual Assault”, “Invitation to Sexual Touching”, “Uttering a Death Threat” and “Breaching a Release Order”, contrary to the Criminal Code.
2When Mr. Mahbub was about 20 years old, he lured a 14-year-old girl online to engage in sexual acts with him by offering drugs and money. They met, but she never touched him. While on bail for that offence to stay away from children, he threatened to kill a 15-year-old girl that he had illegal sexual relations with. While on the same bail, he met a third victim, aged 15, kissed and touched her breast, and sent a photograph of the touching to the girl he had threatened to kill.
3The Crown submitted that the discreet culpability for each offence may have required a 9.5-year total sentence. Ultimately, applying the principles of totality and restraint, the Crown would have been content with a total sentence of 7 years with a proposed breakdown. The defence submitted for a global sentence of 4 years and 3 months.
4These are my reasons imposing a global sentence of 5 years and 3 months.
Summary of the Evidence
Child Luring under 16 (s.172.1(1))
5On March 23rd, 2022, 20-year-old Hesham Mahbub contacted 14-year-old A.N. on Instagram. She asked who was attempting to contact her, and Mr. Mahbub replied that it was “the guy who was coming to see her.” He asked her if she wanted to meet him and consume acid together. She replied that she was grounded.
6The offender again asked A.N. the following day to meet up and do drugs together. She simply replied “grounded”. He asked if she would meet him the following week, to which she replied “prolly not”.
7Four days later, Mr. Mahbub offered to pay her $50 to perform oral sex on him. A.N. did not respond. Days later, he messaged her “Yo”, to which she replied “Stop”. Days later, he offers her $100 and she failed to respond.
8Throughout the ensuing two months, Mr. Mahbub repeatedly asked A.N. to provide sexual services in exchange for money and drugs. On May 14th, 2022, after yet another request for sex, A.N. replied: “You know I’m a kid right? Ur just a horny 19 year old boy who cant get girls his own age so he preys on kids with addictions and shit for brains for a social life.” Mr. Mahbub asked her to add him back on Snapchat.
9They continued to communicate. On May 28, 2022, they agreed to meet in person. She initially agreed to perform oral sex on him in exchange for a vape pen. A.N. became nervous when they met and did not wish to follow through. Mr. Mahbub attempted to convince her to come to his car. When she refused, he told her not to ask him for drugs anymore, that he took time off work, that he was wasting time and money on her, and that he felt she was exploiting him for money.
“Utter threat” to shoot a child at school (s.264.1(1)(a))
10On March 23rd, 2023, Mr. Mahbub sent threatening messages involving two 15-year-old girls that caused a high school to go into lockdown. He sent C.Y. messages threatening C.M. He sent a photograph of a hand holding a handgun, with his bedroom as the background. The gun was in fact a BB gun. He then sent her a photo and video of a hand holding a bullet, stating that the bullet has C.M.’s name on it.
11Mr. Mahbub stated he was going to pay C.M. a visit at school with his “clip loaded.” He stated that he has friends that went to their school and that he would call them and that they have guns too. He was on a release term to stay away from children.
Sexual touching of 15-year-old C.Y. contrary to release order
12Mr. Mahbub met the child victim C.Y. through C.M. He knew C.M. from a prior sexual encounter. He asked C.Y. to meet up, and after some reticence, she decided she liked him and agreed to meet. They facetimed. Initially, she told him she was 16 years old, but later told him prior to their first meeting that she was 15 years old.
13Mr. Mahbub picked up C.Y. from her high school, drove her to a secluded area, and they kissed and made out. He asked to put his hand on her breast. She agreed. He took a photo of his hand on her breast, and that photograph was later collected by the police. Mr. Mahbub sent that photo to the other girl, C.M.
14Mr. Mahbub told C.Y. that he wanted to go further, but she said no and he relented. Nothing else happened between them. At the time, Mr. Mahbub was on conditions not to communicate with or be in the presence of anyone under 16 years of age.
Victim Impact Evidence
15None of the victims provided victim impact statements.
Circumstances of the Offender
16A “Sexual Behaviours Assessment”, pursuant to s. 21 of the Mental Health Act, was received in evidence. Mr. Mahbub was born on November 9th, 2001, and was 20 years old when he committed his first offence of child luring. He was born in Bangladesh and moved to Canada in 2015. At the time of his arrest, he was attending university in a business program and working part-time at a pizzeria.
17At the time of his arrest, he lived with his mother, sister, and grandmother. His father died when Mr. Mahbub was 10 years old. Their family fell on hard times financially, but their mother ensured the bills were paid.
18Mr. Mahbub disclosed that he had been a victim of sexual abuse between the ages of 6 and 9 by three former tutors and a male cousin. As a teenager, Mr. Mahbub had some age-appropriate intimate partner relationships. During his teenaged years, his low mood occasionally intensified, and he contemplated killing himself. He shared that he once tried to hang himself from a ceiling fan.
19The offender struggled academically in high school and post-secondary studies. As an adult, he was placed on academic probation, causing him to change programs. His main intimate partner relationship as an adult had been unstable and intermittently paused.
20Mr. Mahbub submitted to a Sexual Behaviours Assessment, pursuant to s.21 of the Mental Health Act. The report illuminated that:
In the context of his low self-esteem, possibly inadequate parts of his relationship, and history of depression, he inappropriately sought out sexual contact with adolescent females whom he met on social media. This does not appear to have been motivated by a wish to harm them nor by antisocial traits. It may be that Mr. Mahbub felt inadequate in relationships with women his own age, and impulsively engaged with these adolescent girls online. His engagement with adolescents may have been driven mainly by a desire to feel competent and in control, rather than deviant sexual desires toward children and/or adolescents. Based on his reporting, he does not appear to have an elevated sex drive (hypersexuality).
21The forensic assessor applied a commonly used actuarial tool called the Static-99R, employed to assess the future risk of hands-on sexual offenders. Mr. Mahbub was scored and placed in the “Level IV-b – well above average risk” category. A number of recommendations were consequently made, including treatment at an accredited sexual behaviours clinic and that he be prohibited from any contact with underage girls.
22The offender has been down about the charges and feels regret and remorse. He reported that his sex drive was not antisocial or especially intense or problematic. He also provided a thoughtful letter.
Analysis
Applicable Principles of Sentencing
23The principles of sentencing are codified in section 718 of the Criminal Code. For sexual offences against children, deterrence and denunciation are the primary sentencing principles engaged. Since 2020, an upward departure from past ranges for such offences has been required.1 Both sides agree that a penitentiary sentence is necessary here.
24Mr. Mahbub sexually preyed upon or threatened multiple girls under 18 years of age, confirming both aggravating factors and the primacy of deterrence and denunciation: ss.718.01 and 718.2(a)(ii.2). For first time offenders, rehabilitation, reintegration, and restraint must also be considered in determining a fit custodial term, but they must cede here to the primary sentencing objectives identified.
25Section 718.1 of the Criminal Code directs that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of parity codified in s. 718.2 (b) must also be considered.
Aggravating Factors
26The following aggravating factors have been proven beyond a reasonable doubt:
i. Child luring victim well under 16 years of age – Given her age, the luring victim was unable to consent to any sexual activity with Mr. Mahbub. Any sexual interaction with such a victim is illegal, beyond just the commodification of sexual activity. She was particularly young, at 14 years of age. This all heightens the offender’s moral blameworthiness.
ii. Arranged meetings – The luring went a step further to an arranged meeting. He met her to obtain fellatio, but she got “cold feet”. Mr. Mahbub went beyond the elements of the inchoate offence and took steps to meet the child victim to commit a sexual offence. He met her twice, despite the absence of any sexual contact.
iii. Procuring and communicating with a child for sexual service: Mr. Mahbub preyed on the addictions of A.N. and attempted to lure her into providing fellatio in exchange for acid and a vape pen. He offered money for the same sexual act as well.
iv. Persistence over child luring victim’s protesting and demurring: A.N. repeatedly told Mr. Mahbub she was grounded after he would ask her to meet up and consume drugs. He then offered $50 for oral sex, and she failed to respond. He urged her again by messaging her “yo”, to which she replied “stop”. He then offered $100 for the same act and she again failed to respond.
v. Pressuring and guilting the child luring victim: Mr. Mahbub went beyond grooming the child luring victim. He was aggressive when rebuffed. He messaged her telling her not to ask him for drugs anymore. He cursed in some of these communications as he admonished her for wasting his time and money. He gaslit her by calling her exploitative.
vi. Threatening death in school shooting context: This death threat was particularly jarring with rippling consequences to the community. The threat to shoot a girl at her school caused a school lockdown.
vii. Sexual contact with C.Y. was recorded and transmitted: The kissing and placing of his hand on C.Y.’s breast was problematic enough. Her participation in all this is neither mitigating nor relevant. It is aggravating that Mr. Mahbub photographed his hand on her breast and then sent it to her friend, C.M.
viii. Sexual contact with C.Y. while on bail to stay away from children: When Mr. Mahbub sexually assaulted C.Y., he was subject to a bail term to stay away from children.
ix. Violation of core term of release: Mr. Mahbub not only violated the primary term of his release order relating to A.N. to stay away from children, but he did so by committing another child sexual offence against C.Y. I caution myself not to “double-dip” a similar aggravating factor in applying it to the breach and the sexual offences against C.Y. The last two factors I have described are mirror opposites in application to each discrete offence. However, I will ensure this does not impact the quantification of the overall term, and specifically it will not impact the quantification for the sexual offences against C.Y.
Mitigating and Contextual Factors
27The following mitigating and contextual factors have been established:
i. Guilty Plea: Despite some of the counts supporting little discernable defence, the pleas of guilt spare the child victims from testifying and are mitigating to some extent.
ii. Youthful First Offender: Mr. Mahbub was 20 years old at the time some of the offences were committed. He had no criminal record.
iii. Prosocial Background: Mr. Mahbub has solid family support and was gainfully employed before his detention. He was in a post-secondary education program, despite some academic challenges.
iv. Offender as Victim and Mental Health: While the gravity of the offences and his moral responsibility for them must be deemed high, Mr. Mahbub himself had been sexually abused as a child. The s.21 report supports that he may suffer from several, likely related, diagnoses, which may include post-traumatic stress disorder, adjustment disorder, depression, and anxiety.
v. Risk of Sexual Offending: The defence acquiesced to the s.21 Mental Health Act report. I am reluctant to weaponize that transparent and instructive pursuit into an aggravating factor. Its intent was to distill Mr. Mahbub’s criminogenic risk factors and to guide treatment and rehabilitation. However, Mr. Mahbub was deemed “well above average risk” to sexually reoffend. This requires some attention and intervention in the correctional setting and frames his prospects of rehabilitation. It also represents the absence of the heightened mitigation that may accompany a “low risk” forensic assessment.
vi. Harsh Presentence Custody Conditions: Mr. Mahbub had spent 767 days in custody. He must receive the standard Summers credit of 1.5 to 1 for each day of detention, totalling 1151 days, as circumscribed by s.719.(3.1). He has also spent his detention under harsh presentence custody conditions. He was fully or partially locked down for over 500 of those days. He was triple bunked for 278 days. He was also assaulted and needed medical attention. Mr. Mahbub must receive heightened mitigation for the harsh presentence custody conditions. In accordance with appellate direction, I decline to quantify this mitigation, as quantification may serve to skew the calculation of a fit sentence.2 It will be a powerful mitigating factor to be applied to the overall sentencing analysis.
Discussion
I. Threatening Death to Child Victim
28There is no sentencing range for threats to cause death or bodily harm. Dispositions generally run the gamut from peace bonds, conditional discharges, suspended sentences and probation, to a spectrum of custodial terms in the reformatory.
29The defence position of nine months of custody is an illustration that Mr. Mahbub’s death threat engages a startling confluence of aggravating factors warranting a significant custodial term. This threat warrants a middle reformatory term in the 9–12-month range that frames the modest contest and the competing positions for this charge.
30First, Mr. Mahbub threatened to shoot a 15-year-old girl through a teenaged proxy. He threatened to shoot a child. Second, the facts support that he had an illegal prior sexual encounter at some point with the intended child victim. The only reasonable inference to draw is that there was an illegally sexualized component to his connection with the intended child victim of his death threat.
31Third, Mr. Mahbub expressly invoked other shooters who would join him for what can only be inferred to be a school shooting. The photographs he sent of the handgun and bullet support that he was able to carry out his threat. This reached the school administration and it went into lockdown. Such threats strike at the heart of Canadian values and jar and disrupt our collective sense of safety and security in schools. The school and home are presumptively the safest of havens for our precious children.
32Fourth, he was on a release term not to communicate with children. He violated that central bail term by threatening a child. A deterrent custodial term is required. The original Crown position of 12 months is fit, and the application of restraint and totality causes me to arrive at the defence position of 9 months.
II. Sexual Assault and Invitation to Sexual Touching of C.Y.
33Counsel agreed to the totality quantification of 1.5 years for the sexual offences against C.Y., so I will not spend much time on this analysis beyond to acknowledge it as restrained. Whether it is treated as a joint submission or not, the proposed term is fit, especially considering the totality principle.
34Its seriousness must be discussed when assessing the overall fitness of the total sentence. C.Y.’s participation in her abuse cannot be a mitigating nor even a relevant factor on sentence. Mr. Mahbub was the adult. He also initiated the sexual contact. The absence of coercion merely signals the absence of an additional aggravating factor.
35While kissing and touching a breast may not fall at the most serious end of the spectrum of intrusion, it nonetheless warrants a deterrent custodial term. The lesser degree of physical interference here only signals the absence of yet another aggravating factor. On that point, I remind myself that any sexual contact with a child is both inherently violent and harmful.3 The degree of intrusion does not necessarily correlate to the degree of harm to the child.
36The victim was 15 years old. Importantly, Mr. Mahbub was subject to a release order to stay away from children when he committed this offence. Finally, Mr. Mahbub further violated the child’s privacy and sexual autonomy by photographing his hand on her breast and then sending it to another child.
37It is valuable to return to the Supreme Court’s direction in Friesen that an upward departure was required from previous sentencing ranges for sexual offences against children:
(I)t is incumbent on us to provide an overall message that is clear… That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim.4
38As the pre-totality original Crown position of 2.5 years signals, this could have been a lower penitentiary or a maximum reformatory sentence. The application of the principles of totality and restraint support the fundamentally joint submission of 1.5 years.
III. Child luring offence against A.N.
39From the Crown position, the child luring offence is the most serious of Mr. Mahbub’s intersecting child abuse offences. As the Supreme Court reflected in R. v. Bertrand Marchand:5
To protect a range of social interests, Parliament enacted the offence of "luring a child"… The online world and digital communications between adults and children warrant special regulation because children are particularly vulnerable to manipulation in online settings… The internet has infinitely expanded the opportunity for offenders to attract or ensnare children and the enactment of a distinct crime protects them from the possibility of sexual exploitation facilitated by the internet… The luring offence helps keep children safe in a virtual environment and was intended to meet "the very specific danger posed by certain kinds of communications via computer systems"…
The purpose of s. 172.1 is both remedial and preventative. It was enacted "to combat the very real threat posed by adult predators who attempt to groom or lure children by electronic means"… The provision seeks to safeguard children from sexual abuse by identifying and apprehending offenders before they commit a designated offence.
40The Supreme Court in Friesen accepted evidence that incidents of child luring had more than doubled between 2010 and 2017. This must be juxtaposed with the proximate development that Parliament twice increased the maximum sentence for this offence in 2007 (from 5 to 10 years) and 2015 (from 10 to 14 years).
41Increases in maximum sentences signal Parliament’s intention that related custodial sentences increase in length. As far back as 2006, our Court of Appeal observed that trial level rulings seemed to support a sentencing range for child luring of 12-24 months. By 2011, the same court questioned whether that decision even supported a range but reflected that any such range “needs to be revised” as too low, given the 2007 increase in maximum sentence.6 It is certainly insufficient by today’s appellate standards, given the subsequent increase in the maximum sentence and the guidance in Friesen.
42Several courts have now acknowledged that the sentencing range for child luring may be 3-5 years when the Crown proceeds by indictment. In 2023, our Court of Appeal in R. v. M.V. confirmed that the upper range for child luring is now 5 years, while expressing reasoned apprehension in setting any lower range.7
43As far back as 2011 in Woodward, the same Court held that a range of 3-5 years would be proper if the child luring became a “pervasive social problem.”8 As the Supreme Court confirmed in Friesen, the problem had certainly become pervasive, as it inferentially may have “commended” this prospective range in Woodward. The 3–5-year range for child luring was soon further and explicitly supported by our Superior Court in R. v. Moolla.9
44I have considered the submitted post-Friesen sentencing rulings for child luring, and have found the following instructive:
R. v. M.V., 2023 ONCA 724 – The CA intervened to resentence the first-time offender and determined a fit sentence for the “internet child luring” offence was 4 years, before totality was applied. The offender had pleaded guilty to charges from two distinct but facially unrelated prosecutions relating to child sexual abuse. The child luring offence involved two sisters, aged 8 and 10, that the offender had encountered online. He sent them 44 images of child pornography along with videos of himself masturbating. A significant child pornography collection was found upon an examination of the offender’s devices. He never attempted to meet nor abuse the girls, although he had sent some of their nude images to at least one other person.
R. v. Moolla, 2021 ONSC 3702 – The offender was sentenced after trial to 3.5 years for “child luring”, and 6 months concurrent for breaching probation. The “making sexually explicit material available to a child” was conditionally stayed. He was 35 years old with four entries on his unrelated criminal record. Mr. Moolla had placed an ad on Craigslist seeking a sexual relationship with a girl “at least 16 and at most 19”. An undercover officer responded, posing as a 14-year-old girl. They communicated over some days with the expressed intention to meet for sex. Mr. Moolla engaged “her” in sexually explicit communications and sent her a photograph of his penis. While en route to the agreed upon meeting place, police arrested him.
R. v. Rosin, 2023 MBPC 72 – The offender was sentenced after trial to 18 months for child luring. He was 33 years old with no criminal record. Mr. Rosin communicated over 3 days with an undercover officer posing as a 15-year-old girl. The discussions showed evidence of grooming and explicit sexual content of the acts the offender hoped to perform on the girl. He was arrested as he attended an agreed upon meeting place.
45I will apply the upper range of 5 years for child luring, mindful that there is jurisprudential support for a lower end of 3 years. I agree with the defence that I cannot be restrained by the suggestion of a lower end of 3 years, given our Court of Appeal has specifically declined to embrace it.
46The facts and circumstances relating to Mr. Mahbub, support that the luring sentence must fall to the middle to lower end of such a range, even before totality is considered. I find the upper range of 5 years should not be applied here. I also find the two years proposed by the defence to be too restrained.
47I have discussed several aggravating facts. Mr. Mahbub aggressively lured A.N. and preyed on the addictions and vulnerabilities of a particularly young child, aged 14. Given her age, A.N. was unable to consent to any sexual activity of any sort, so Mr. Mahbub’s moral responsibility exceeds the mere commodification of sexual activity with a child under 16 years of age.
48He went beyond the mere elements of the inchoate offence of child luring, and in fact arranged to meet A.N. twice to attempt to engage in sexual activity. He was dogged and assertive in his pursuit. His luring went beyond grooming and involved attempts to commodify her sexual engagement with him in exchange for drugs and money. This requires a penitentiary sentence above 2 years.
49That said, Mr. Mahbub pleaded guilty. He was a very youthful first offender, mere years older than the adolescent victim. While a significant gap in age can be additionally aggravating,10 the absence of such a gap is relevant in situating the moral responsibility of a youthful, first-time offender.
50In applying the principle of totality and restraint, I have determined the fit quantification of sentence for the “child luring” offence is 3 years.
Positions on Sentence
51I have summarized the competing positions at the end of my reasons, to orient the reader in how I determined the contest for each offence from a totality perspective. The Crown submitted the individual sentences may have totalled 9.5 years. While I accept the ultimate Crown position as reasoned and reasonable, I disagree that successive sentences for guilty pleas to each offence would have warranted such a crushing individual quantification for this youthful first offender. Each successive sentencing court would have to consider any proximate sentence being served, mindful of the related order of the offence dates.
52Accounting for totality, the Crown finally submitted for a global sentence of 7 years. This is the only Crown position that I will address for this hearing, as it is the ultimate one for a contested sentencing. The Crown submitted the sentences should be apportioned as follows:
i. Child Luring (A.N.) – 5 years
ii. Sexual Assault and Invitation to Touching (C.Y.) – 1.5 years consecutive (joint submission, after totality applied)
iii. Utter Threat (C.M.) – 6 months consecutive (before totality, at 12 months)
iv. Fail to Comply – 6 months concurrent to the sexual assault.
53The Defence joined the Crown in some of the individual sentences, and in her approach to totality and concurrent and consecutive sentences. In submitting for a global sentence of 4 years and 3 months, counsel proposed the following apportionment of sentence:
i. Child Luring (A.N.) – 2 years
ii. Sexual Assault and Invitation to Touching (C.Y.) – 1.5 years consecutive.
iii. Utter Threat (C.M.) – 9 months consecutive
iv. Fail to Comply – 2 months concurrent to the sexual assault.
Conclusion
54I will respect the joint agreement on the approach to concurrent and consecutive sentences, some of it mandated to be consecutive by statute. Mr. Mahbub victimized three girls under the age of 16: one, he lured to commit sexual acts for consideration before she declined any sexual contact; another, he threatened to kill at her school; and the last, he kissed and touched her breast.
55The final two sets of offences were contrary to the release order for luring that prohibited contact with children. While this aggravating factor cannot be counted twice, it goes into the overall assessment of a fit global sentence.
56I have determined that a fit and proportionate total sentence is one of 5 years and 3 months, to be apportioned as follows:
i. Child Luring (A.N.) – 3 years, less 1.5-1 credit for 767 days in presentence custody.
ii. Sexual Assault and Invitation to Sexual Touching (C.Y.) – 1.5 years consecutive to the Child Luring offence, but concurrent to each other.
iii. Utter Threat (C.M.) – 9 months consecutive to sexual offences against C.Y.
iv. Fail to Comply – 3 months concurrent the sexual offences against C.Y.
57A Sex Offender Information Registration Act (SOIRA) reporting order is required. As it relates to the Crown application for a lifetime SOIRA order, I accept Mr. Mahbub was sentenced for three designated offences. However, only the “child luring” sentence exceeds 2 years. Given that these are his first findings of guilt, and the only “hands on” offence involved kissing and the touching of a breast, I am not persuaded that the offences show a “pattern of behaviour” supporting that he presents an “increased risk of reoffending” to meet the preconditions of a lifetime SOIRA reporting order. Note, the test does not readily contemplate the troubling forensic risk assessment. I will impose a 20-year reporting order under the SOIRA.
58Similarly, I accept a s.161 order is required to prohibit access to spaces where children can be found. The Crown requests a 20-year order, while the defence advocates for 5 years. Despite offending against three children, his burgeoning and limited insight as a young adult offender is growing and I am prepared to balance restraint with sustained public safety. The s.161 order will be for 10 years.
59Thus, I will impose the following ancillary orders:
i. DNA – on all primary and secondary eligible offences
ii. S.109 weapons prohibition for 10 years to applicable offences
iii. SOIRA order – 20 years
iv. S.743.21 non-communication order with C.Y., C.M., and A.N.
v. Victim fine surcharges waived (undue hardship)
vi. Forfeiture order of seized items on consent
vii. S.161 order for 10 years, prohibiting him from:
(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre.
(a.1) being within 500 metres of any place of residence, employment or education of C.Y., C.M., and A.N.
(b) seeking, obtaining, or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years.
(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of an adult over 30 years of age.
(d) using the internet or other digital network, unless with an internet capable device to access the internet with the restrictions as follows:
- He must only access the internet on a device for which he is the sole owner and user.
- The internet service must be registered in his own name.
- He is not to directly or indirectly access any social media sites, social network, internet discussion forum or chatroom, or maintain a personal profile on any such service (such as X – formerly Twitter, Tinder, Bumble, Snapchat, Instagram or any equivalent or similar service).
- He is not to use any telecommunication device to access the internet or other digital network in order to possess or access content that violates the law.
58My thanks to counsel.
Released: June 10, 2025
Signed: Justice A. A. Ghosh
Footnotes
- R. v. Friesen, 2020 SCC 9, paras. 108-114
- R. v. Marshall, 2021 ONCA 344, para. 52
- Friesen, paras. 138-144 – Degree of Physical Interference
- Friesen, para. 114; R. v. T.J., 2021 ONCA 392, para. 30
- R. v. Bertrand Marchand, 2023 SCC 26, paras. 7-8
- R. v. Woodward, 2011 ONCA 610, para. 58
- R. v. M.V., 2023 ONCA 724, para. 87
- Woodward, para. 58
- R. v. Moolla, 2021 ONSC 3702, para. 21
- Bertrand-Marchand, para. 87