Ontario Court of Justice
Date: June 25, 2025
Court File No.: Brampton 23-31113903
Between:
His Majesty the King
— and —
Akashkumar Narendrakumar Khant
Before Justice P.T. O’Marra
Heard on April 28 and May 29, 2025
Reasons for Judgment on Sentence released on June 25, 2025
Gregory Hendry and Eugene Wong — counsel for the Crown
David Bayliss — for the defendant Akashkumar Narendrakumar Khant
Introduction
1Mr. Khant appears before this Court having pleaded guilty to one count of the attempted commission of an indecent act, contrary to section 173(1)(b) of the Criminal Code. The Crown proceeded by summary conviction. This was a case that I extensively judicially pre-tried with both counsel.
2The Crown seeks a sentence of 90 days' custody. The Defence proposes a conditional discharge, accompanied by 12 months' probation with strict conditions, including a three-month period of house arrest.
The Acknowledged Facts
3On December 13th, 2023, the Peel Regional Police Human Trafficking Unit commenced Project Juno—an online investigation focused on individuals seeking to obtain sexual services from persons under 18 years of age.
4On the same day, Mr. Khant contacted a sex trade advertisement that was created by police on Leolist.cc.
5Mr. Khant engaged in conversation over text with an undercover officer by contacting the number listed on the advertisement. The text of that conversation was appended to the Agreed Statement of Facts as Tab A.
6Mr. Khant communicated with the undercover officer and was informed on several occasions during the conversation that she was 15 years old. Mr. Khant continued the conversation. An agreement was made for the purchase of a ‘girlfriend experience’ which entailed both oral and vaginal intercourse for $140.
7Mr. Khant received instructions to attend the Holiday Inn hotel located at 5595 Ambler Drive in the City of Mississauga to obtain the agreed-upon sexual services.
8Mr. Khant attended the designated room, knocked on the door and was subsequently arrested. A cellular phone and $140.00 cash were seized from Mr. Khant incidentally to his arrest.
9Mr. Khant attempted to commit an indecent act with the undercover officer. He was indifferent or reckless as to the presence of others during the attempted commission of the indecent act, and the act was therefore intended, in law, to be done willfully in the presence of one or more persons.
Mr. Khant’s Background
10I have gleaned much, if not all, of Mr. Khant’s background and risk from Dr. Kalia’s Psychosexual Risk Assessment dated September 18, 2024.
Personal and Educational Background
11Mr. Khant is 32 years old. He is originally from Surat, Gujarat, India. Raised in a stable and nurturing family environment, he reported no history of abuse, neglect, or domestic conflict. His parents emphasized moral values and education, and he maintains a close relationship with his sister, who resides in Germany. Mr. Khant excelled academically, earning a full scholarship to study civil engineering at Gujarat Technological University. After working in India for several years, he immigrated to Canada in 2019 to pursue a Master’s degree in civil engineering at the University of Windsor, which he completed in 2021. He has since worked in the construction and public transit sectors and became a permanent resident in 2023. He is currently in the final stages of obtaining his professional engineering licence and is also pursuing certification in project management.
Sexual History and Incident Context
12Mr. Khant described himself as sexually inexperienced before marriage, with a limited dating history. He met his wife, Sangna Patel, in 2021, and they married in 2023. Their sexual relationship initially was active, but later became strained due to her medical issues. Seeking variety and intimacy, Mr. Khant began browsing Leolist, a classified site for adult services. Since this incident, he has expressed deep remorse, disclosed the incident to his wife, and started counselling shortly thereafter. He emphasized to Dr. Kalia that he never intended to seek out underage individuals and was motivated more by unmet emotional and sexual needs than by deviant intent. However, I note that once he was advised that the escort was 15 years old, the text messages disclosed that he told her that “…if we get along then. I will see you quite often.” This is suggestive of a continued interest in underage girls.
Mental Health and Psychological Testing
13Mr. Khant underwent a battery of psychological assessments. His intelligence was measured in the above-average range (IQ score of 117). He showed no signs of major mental illness, personality disorder, or antisocial traits. His responses on the Personality Assessment Inventory (PAI) were consistent and forthright, indicating a stable self-concept and no evidence of impression management. He reported mild anxiety and depression, which were interpreted as situational responses to the stress of legal proceedings. His interpersonal style was described as modest and reserved, with a tendency toward self-consciousness in social settings.
Counselling and Rehabilitation Efforts
14Following his arrest, Mr. Khant began offence-specific counselling in April 2024 and completed 12 sessions. The counselling addressed key areas such as consent, thinking errors, victim empathy, pornography use, and relapse prevention. He demonstrated strong engagement, insight into his behaviour, and a commitment to change. His therapist noted that he took full responsibility for his actions and showed a genuine desire to avoid future misconduct. He was particularly responsive to discussions about the impact of sexual exploitation on victims and the importance of healthy communication in intimate relationships. He remains open to continued therapy and joint sessions with his wife to strengthen their relationship further.
Risk Assessment Findings
15Mr. Khant was evaluated using several standardized risk assessment tools. On the Static-99R, he scored a 3, placing him in the average risk category for sexual reoffending. However, the Risk for Sexual Violence Protocol (RSVP-V2) found no indicators of sexual violence risk, such as deviant sexual interests, use of force, or psychopathy. The Psychopathy Checklist – Screening Version (PCL: SV) confirmed that he does not exhibit traits associated with psychopathy. Phallometric testing showed some response to younger females, which he acknowledged with surprise and agreed to explore further in therapy. Overall, his risk of reoffending is considered low, particularly given his remorse, lack of prior offences, and positive response to treatment.
Collateral Information and Support System
16Collateral interviews with his wife and therapist support the assessment’s findings. His wife described him as empathetic, responsible, and family-oriented. She acknowledged the strain in their sexual relationship due to her medical issues, but affirmed their emotional bond and his remorse. She remains supportive and is open to joint counselling. His therapist confirmed his motivation to change and his progress in therapy. Mr. Khant has not disclosed the incident to his parents, fearing it would cause them undue stress, and relies primarily on his wife and therapist for emotional support.
Clinical Summary and Prognosis
17Mr. Khant is described as a cooperative, polite, and anxious individual who is deeply affected by the legal and immigration consequences of his actions. He is considered naive and sexually inexperienced, with no history of deviant or predatory behaviour. His actions appear to stem from unmet emotional and sexual needs rather than malicious intent. He has demonstrated a strong commitment to rehabilitation and is expected to benefit from continued counselling. His prognosis is favourable, and he is deemed suitable for community-based management. The report concludes that he poses a low risk of reoffending and has the internal and external resources necessary to make healthy, lawful choices in the future.
Immigration Consequences
18According to an opinion from an immigration lawyer that was provided to Mr. Bayliss, a conviction for an offence that can be characterized as sexual would preclude Mr. Khant from sponsoring his wife, under section 133(1)(e)(i) of the Immigration and Refugee Protection Act (IRPA).
19Ms. Patel is currently in Canada on a work visa that expires on September 18, 2025. Upon the expiration of her work visa, she will be required to leave Canada unless she is sponsored as a permanent resident, qualifies for permanent residency independently, or otherwise qualifies for an extension of her work permit. Given the current immigration climate, obtaining work permit extensions is a challenging process. Without several years of work experience in Canada, it is also difficult to independently qualify for permanent resident status. Therefore, if Mr. Khant cannot sponsor her, it is likely she will need to leave Canada, resulting in the couple's separation. The bottom line is that if he faces a conviction instead of a discharge, his wife will likely be subject to a removal order.
The Applicable Sentencing Principles in Sexual Offences Involving Minors
20Sentencing for sexual offences involving minors is governed by the general principles outlined in sections 718 to 718.2 of the Criminal Code. The primary objectives in these cases are denunciation and general deterrence, reflecting the serious harm these offences pose to vulnerable victims and society at large. Courts are required to impose sentences that are proportionate to the gravity of the offence and the offender’s degree of responsibility (s. 718.1). While denunciation and deterrence are paramount, the principles of individualized sentencing, restraint, and rehabilitation remain relevant, particularly for first-time or youthful offenders.
21In R. v. Friesen, 2020 SCC 9, the Supreme Court of Canada emphasized that sentences for sexual offences against children must reflect the gravity of the harm and the need for increased penalties. However, it also reaffirmed the importance of proportionality and restraint, especially for first-time offenders.
Sentencing Parameters in this Case
22The maximum penalty for an offence under section 173(1) of the Code is two years’ imprisonment if prosecuted by indictment, and two years less one day imprisonment and/or a fine if prosecuted summarily. An attempted indecent act is charged under section 24(1) of the Criminal Code, which applies to any attempt to commit an offence, even if the act is not completed. The sentencing range for an attempt is generally the same as for the completed offence. Still, courts may impose a lower sentence based on the incomplete nature of the act and the offender’s level of culpability.
The Defence’s Position
23Mr. Khant is a first-time offender, relatively young, with no prior record, and has completed counselling. He faces devastating immigration and professional consequences if convicted.
24Mr. Khant’s background (engineering graduate, PR status, counselling, low-risk assessment) aligns with the rehabilitative focus emphasized in the jurisprudence. A custodial sentence would undermine his progress and prospects, contrary to the principle of restraint.
25Mr. Bayliss provided a helpful book of authorities and a sentencing chart, as well as legal principles and academic commentary relevant to sentencing, particularly focusing on the use of conditional and absolute discharges under section 730 of the Criminal Code.
26I do not propose to review every case and commentary; however, I wish to highlight some of the important cases and the applicable principles.
27The foundational case of R. v. Fallofield, 1973 BCCA 1412, [1973] B.C.J. No. 559 (BCCA), established the two-part test for granting discharges under section 730 of the Criminal Code: first, that a discharge must be in the best interests of the accused, and second, that it must not be contrary to the public interest. This case emphasized that discharges are not limited to trivial offences and that the public interest includes considerations of rehabilitation and the avoidance of disproportionate consequences from a conviction.
28Subsequent cases applied these principles in varied contexts. For example, in R. v. Goodwin, 2020 ONSC 449, a police officer who fired his weapon at a fleeing vehicle was denied a discharge due to the seriousness of the offence and the need for general deterrence and denunciation, particularly given his position of authority.
29In contrast, in R. v. Vicente, 2018 ONCJ 5438, the Ontario Court of Justice granted a conditional discharge despite the seriousness of the offence—domestic assault causing bodily harm. The court considered the offender’s lack of prior record, family responsibilities, and the potential employment impact of a conviction. The decision reinforced that discharges are not confined to minor offences and that the sentencing process must account for the broader context of the offender’s life.
30Similarly, in R. v. Oulianov, 2006 ONCJ 3341, a conditional discharge was granted for a fraud offence involving a forged cheque. The court emphasized the offender’s youth, lack of prior record, and the disproportionate impact a conviction would have on his future career. The judge rejected the Crown’s argument that the offence was too serious for a discharge, highlighting that the offence did not involve a breach of trust or result in financial loss. In R. v. Parkhomenko, 2006 OCJ 3904, a 24-year-old student received a conditional discharge after pleading guilty to possession of credit card data and blank cards. The court emphasized his youth, good character, and the rehabilitative potential that a conviction would hinder.
31R. v. Dicesare, 2018 BCPC 7067 and R. v. M.L., 2019 ONCJ 3809 similarly granted discharges in cases involving fraud, drug possession, and impaired driving, respectively, where the courts emphasized the offenders’ lack of prior records, rehabilitative efforts, and the collateral consequences of a conviction.
32Building on this, R. v. Mills, 2022 ONCA 2264 reaffirmed the importance of proportionality in sentencing. The Ontario Court of Appeal granted an absolute discharge on appeal, finding that the trial judge erred in requiring “exceptional” circumstances. The Court emphasized that the impact of a criminal record on the offender’s employment and rehabilitation prospects justified a discharge, especially where the offender had no prior record, had paid restitution, and demonstrated remorse.
33The constitutional dimensions of criminal records were addressed in P.H. v. Canada (Attorney General), 2020 FC 393, [2020] 2 F.C.R. 461 and Chu v. Canada (Attorney General), 2017 BCSC 630, [2017] B.C.J. No 742 (BCSC), where the courts found that criminal records constitute “punishment” under sections 11(h) and 11(i) of the Canadian Charter of Rights and Freedoms. These cases challenged the retrospective application of amendments to the Criminal Records Act (CRA) introduced by the Limiting Pardons for Serious Crimes Act (LPSCA) and the Safe Streets and Communities Act (SSCA), which increased the waiting period for record suspension applications and changed the criteria for granting them. The courts held that the transitional provisions applying these changes retrospectively violated the Charter, as they added to the punishment of offenders and could not be justified under section 1. These decisions underscore the severe and lasting collateral consequences of a criminal record, including barriers to employment, housing, and social integration.
34Together, these cases form a robust legal framework supporting the use of discharges in appropriate cases. They emphasize the importance of individualized sentencing, the need to consider the offender's potential for rehabilitation, and the disproportionate impact a conviction can have on future opportunities. They also affirm that the justice system must be responsive to the broader social and constitutional implications of criminal records, particularly for first-time offenders and those who have demonstrated genuine efforts at rehabilitation.
The Crown’s Position
35The Crown’s response reflects a firm stance on maintaining sentencing parity and upholding the principles of denunciation and deterrence, despite the unique mitigating factors presented by the Defence.
36The Crown acknowledges that Mr. Khant was the first individual arrested under Project Juno and the only one of the 32 charged to plead to attempted indecent act rather than child luring. While recognizing that the case had evidentiary weaknesses—such as a partial phone download, lack of surveillance footage showing him at the hotel room door, and a failed test call—the Crown maintains that the case was still strong and that these issues, while potentially affecting reasonable prospect of conviction, do not justify a discharge or non-custodial sentence.
37The Crown’s suggestion for a 90-day custodial sentence is consistent with the sentences imposed on others involved in Project Juno. They argue that parity is essential and that granting a more lenient sentence would undermine the principle of equal treatment. The Crown also emphasizes that denunciation and deterrence are paramount in offences of this nature, especially those involving sexual conduct and potential exploitation.
38In response to the Defence’s argument about immigration consequences, the Crown concedes that while these may be unfortunate, they are mitigating factors within the sentencing range, not outside of it. The Crown cited R. v. Solowan, 2008 SCC 62 to support the position that sentencing must remain within the statutory range, even for summary conviction offences—they are simply one of many factors to be weighed in determining a fit sentence within that range. The Crown also questions whether Mr. Khant’s conduct was truly anomalous, noting that he had previously used the acronym associated with sex work and had engaged with sex workers before.
39The Crown challenges the Defence’s suggestion that a discharge or suspended sentence would be appropriate, arguing that a criminal conviction carries necessary deterrent value. They assert that Mr. Khant’s moral blameworthiness is high, as he continued to engage in the conversation even after being told the undercover officer was underage. The Crown concludes that a discharge would be contrary to the public interest and an affront to the principle of parity, especially given the seriousness of the offence and the offender’s degree of responsibility.
40The Crown also relies on R. v. Faroughi, 2024 ONCA 178. This case involved a 19-year-old first-time offender who was convicted of child luring and communicating for the purpose of obtaining sexual services from a person under 18. The case arose from Project Raphael, a police sting operation using online ads to catch individuals seeking underage sex workers. The appellant responded to an ad, engaged in explicit communication with an undercover officer posing as a 14-year-old, and was arrested upon arrival at a hotel with the agreed payment.
41At trial, the appellant was convicted by a jury. The trial judge imposed concurrent sentences of seven months’ imprisonment, rejecting a non-custodial sentence. The judge found the offences serious and emphasized the need for denunciation and deterrence. Although the judge struck down the one-year mandatory minimum for child luring as unconstitutional, he did not address the six-month minimum for the communication offence, as the imposed sentence exceeded it.
42On appeal, the appellant challenged both his conviction and sentence. The Court of Appeal dismissed the conviction appeal but allowed the sentence appeal. The appellant submitted fresh evidence of significant post-sentence developments, including:
- Completion of an engineering degree
- Founding a business
- Onset of serious health issues requiring surgery and ongoing therapy
43The Court admitted this evidence, finding it relevant and credible, and concluded it could have affected the sentencing outcome.
44The Court found that the trial judge failed to properly consider the principle of restraint, particularly the availability of a conditional sentence, given the change in the law that occurred after sentencing. This was treated as an error in principle justifying appellate intervention.
45The Court imposed concurrent conditional sentences of nine months, including house arrest for the first half. It held that a conditional sentence could still meet the goals of denunciation and deterrence, especially for a youthful first-time offender with strong rehabilitative prospects.
46The Court declared the six-month mandatory minimum under s. 286.1(2)(a) unconstitutional as applied to the appellant, finding it grossly disproportionate in light of his age, health, and rehabilitative efforts. The Court emphasized that incarceration would undermine his recovery and rehabilitation.
Analysis
47I start by noting that the Court in Faroughi did not consider a discharge or suspended sentence appropriate, even for a youthful, first-time offender. It emphasized that custodial sentences are often necessary to reflect the seriousness of the offence.
48The Crown argues that if a discharge was not appropriate in Faroughi, it is even less so in Mr. Khant’s case, where the Crown has already offered a plea to a lesser offence. A discharge would undermine public confidence and fail to meet the objectives of denunciation and deterrence.
49The Faroughi case can be distinguished as supporting a more lenient sentence than the one imposed. In contrast to the serious and completed sexual offences in the Faroughi case, Mr. Khant pleaded guilty to a significantly less serious offence—attempted indecent act—which carries a lower maximum sentence and no mandatory minimum.
50Moreover, in the Faroughi case, there was clear and compelling evidence, including explicit text messages, confirmation of the complainant’s age, and the accused arriving with the agreed-upon payment. In contrast, Mr. Khant’s case was marked by evidentiary weaknesses—a partial phone download, no direct link between the phone and Mr. Khant, and surveillance footage that failed to show him at the hotel room door. These gaps, along with the fact that the ad initially stated the woman was 18, could raise entrapment concerns that were not present in Faroughi, further reducing Mr. Khant’s moral blameworthiness.
51Another key distinction lies in the collateral consequences. Mr. Khant is a permanent resident seeking Canadian citizenship and professional licensing. A conviction would not only delay his citizenship by four years but could also prevent him from sponsoring his wife and obtaining his engineering licence. These immigration and professional consequences are far more severe than those faced by Mr. Faroughi, who was a Canadian citizen with no such vulnerabilities. Courts have recognized that such consequences can justify a more lenient sentence, including a discharge.
52Additionally, Mr. Khant has demonstrated strong rehabilitative efforts, including completing 12 counselling sessions and receiving a low-risk assessment. While Mr. Faroughi also had positive rehabilitative indicators, the Court still imposed a conditional sentence due to the seriousness of the offence. Given that Mr. Khant’s offence is less serious and his rehabilitation is well underway, a discharge would be more appropriate and proportionate.
53Finally, the Crown in Faroughi sought a sentence within the 12–24-month range, and the Court imposed a nine-month conditional sentence. In Mr. Khant’s case, the Crown is seeking only a 90-day custodial sentence. If a conditional sentence was appropriate in Faroughi despite a higher sentencing range and more serious offence, then a non-custodial sentence is even more justified in Mr. Khant’s circumstances, where the offence is less serious, the sentence sought is shorter, and the mitigating factors are substantial.
54Mr. Khant presents with numerous mitigating factors that support a lenient sentence. He is a first-time offender with no prior criminal history. He pleaded guilty. The Psychological Risk Assessments, by Dr. Monik Kalia, indicate that he poses a low risk of reoffending and does not exhibit any signs of deviant sexual interests or antisocial behaviour. He has demonstrated genuine remorse and has taken proactive steps toward rehabilitation, including completing 12 counselling sessions. His background is marked by academic excellence and professional stability—he holds a Master’s degree in civil engineering, is employed in a skilled role, and is on track to become a licenced professional engineer. He also has strong family support and a stable marriage.
55Importantly, Mr. Khant faces severe collateral consequences if convicted.
56A criminal record would likely prevent him from sponsoring his wife, who is on a work visa set to expire in September 2025, potentially resulting in their separation. It would also delay his eligibility for Canadian citizenship and jeopardize his professional licensing. In R. v. Pham, 2013 SCC 15, the Supreme Court of Canada held that immigration consequences are a relevant and legitimate consideration in sentencing. The case involved a non-citizen who received a two-year prison sentence, which triggered automatic deportation under immigration law. The Court found that, although the sentence fell within the statutory range, it failed to account for the severe collateral consequence of deportation. As a result, the Court reduced the sentence to two years less a day to preserve the offender’s right to appeal the removal order. This decision affirmed that sentencing must be individualized and proportionate, taking into account not only the offence and the offender’s responsibility but also the broader impacts of the sentence, including on immigration status. The Pham decision stands for the principle that collateral consequences, while not determinative, can justify a lower sentence within the legal range to avoid disproportionate hardship.
57The offence itself technically was not completed, and there was no physical contact or harm to a real person. The Crown’s case had some evidentiary weaknesses, including a partial phone download, a lack of direct evidence linking the phone to Mr. Khant, and gaps in surveillance. These factors collectively support the appropriateness of a discharge or conditional sentence.
58Despite the mitigating circumstances, there are aggravating factors that must be acknowledged. The offence involved an attempted indecent act, which, while not completed, is inherently serious due to its sexual nature and the potential for public harm. The Crown argues that Mr. Khant continued to engage in the conversation even after being told the undercover officer was underage, suggesting recklessness or indifference to the age of the person he believed he was meeting. Additionally, the Crown points to a statement made by Mr. Khant—“we could do this a lot depending on how this goes”—as indicative of a possible intent to repeat the conduct.
59The Crown also emphasizes the importance of sentencing parity, noting that other individuals charged under Project Juno received custodial sentences. A discharge, in their view, could undermine public confidence in the justice system and fail to denounce the offence adequately. These aggravating factors must be carefully weighed against the mitigating circumstances to determine a proportionate and just sentence.
The Appropriate Sentence
60In my view, in these rare circumstances, custody is not an appropriate sentence in Mr. Khant’s case due to a combination of compelling mitigating factors that significantly reduce his moral blameworthiness and support a rehabilitative approach.
61I believe that imposing a conditional discharge with 12 months of probation, which includes three months of house arrest with exceptions, reflects a balanced and rehabilitative approach to sentencing. It acknowledges Mr. Khant’s potential for reform, the absence of a prior criminal record, and the necessity to avoid the long-term consequences of a conviction. A conviction would lead to severe collateral consequences, such as jeopardizing his immigration status, delaying his citizenship, and preventing him from sponsoring his wife, which would likely result in their separation. These consequences would be disproportionate to the offence and would undermine his rehabilitative progress. Considering these factors, a custodial sentence would be unduly harsh and contrary to the principles of proportionality, restraint, and individualized sentencing, making a conditional discharge with probation a more just and effective outcome. At the same time, it ensures accountability, promotes public safety, and provides structured support to encourage lawful behaviour and successful reintegration into the community.
62Mr. Khant, you will be placed on probation for 12 months, subject to the following conditions:
- Keep the peace and be of good behaviour.
- Appear before the court when required.
- Report to a probation officer immediately and thereafter as required.
- Notify the probation officer of any change in name, address or employment.
- For the first three months of the probation order, you are confined to your home with the following exceptions:
- Travelling directly to and from your place of employment.
- Any medical emergencies involving you or your immediate family.
- Meeting with your probation officer.
- Shopping for the necessities of life on Sundays between noon and 3 p.m.
- Attending medical, dental, or mental health appointments.
- Participation in religious worship or ceremonies.
- Attend any counselling programs as recommended by your probation officer for healthy relationships and sexual boundaries and sign all releases that are necessary to monitor compliance with this condition.
63I will give Mr. Khant one year to pay the victim fine surcharge.
Released: June 25, 2025
Signed: Justice P.T. O’Marra