WARNING The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1) , (2) , (2.1) , (2.2) , (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences;

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) 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.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community.

486.6(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.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order.

COURT OF APPEAL FOR ONTARIO DATE: 20231103 DOCKET: C70546

Huscroft, Paciocco and Coroza JJ.A.

BETWEEN

His Majesty the King Respondent

and

M.V. Appellant

Counsel: Anthony Orazietti, for the appellant Brent Kettles, for the respondent

Heard: July 11, 2023

On appeal from the sentence imposed on March 22, 2022, by Justice Heather A. Mendes of the Ontario Court of Justice.

Paciocco J.A.:

OVERVIEW

[1] The appellant, M.V., entered pleas of guilty at the same proceeding to charges contained in two distinct informations. The first information contained sexual interference charges from several years prior (the “sexual interference Information”). The second information contained child luring and related charges, covering almost a three-month period that ended shortly before the appellant’s arrest in September of 2020 (the “child luring Information”).

[2] The trial judge imposed an eight-year global sentence on charges from both informations, notwithstanding that the Crown and the appellant advanced a joint position for one-year imprisonment on the sexual interference Information, leaving the sentence on the child luring Information open (the “remaining sentence”). I am persuaded that the trial judge erred in principle by relying on the aggravating circumstances arising from the sexual interference Information in determining the seven-year consecutive sentence on the child luring Information. In effect, the appellant was sentenced twice for the sexual interference charges, once through the jointly agreed sentence, and then again in quantifying the remaining sentence.

[3] I would therefore grant leave to appeal the sentence, allow the appeal, set aside the remaining sentence, and substitute a five-and-a-half-year global sentence. This considerable sentence appropriately reflects the joint position on the sexual interference charges, and a fit sentence for the charges on the child luring Information. The five-and-a-half year global sentence is quantified as follows:

1. a global sentence of one year of imprisonment on the two sexual interference convictions arising from the sexual interference Information (a 9-month sentence for the sexual interference offence the appellant committed against his daughter, and a 3-month consecutive sentence for the sexual interference offence committed against his stepson);
2. 42 months (or three-years and six-months) of imprisonment consecutive on the child luring charge, which involved two victims [1] ; and
3. one year of imprisonment consecutive on the child pornography offence.

[4] Since the trial judge attributed six months of Downes credit to the nine-month sentence on the sexual interference count involving the appellant’s daughter, and I would respect that decision, the net sentence of imprisonment remaining to be imposed for all offences would total five years.

THE MATERIAL FACTS

[5] The facts relating to the sexual interference convictions may be stated in brief compass because of their limited application to the child luring Information sentence that is materially the subject of this appeal.

[6] The appellant was in a relationship with a woman with whom he shared a daughter. The woman also had a son from another relationship. The appellant pleaded guilty to sexually assaulting their daughter on three occasions, commencing when she was approximately five years old. On all three occasions he touched her vagina, attempting once to penetrate her vagina with his fingers. On one occasion, he put his face to her vagina, and he asked her to touch his penis. Several years later, when his stepson was 10 or 11 years of age, the boy awoke to find the appellant fondling his penis, at which time the appellant asked if he could put the boy’s penis in his mouth. The boy “kicked away” and fled without reporting the incident.

[7] Several years later, the appellant was arrested for child luring offences involving two sisters, eight and ten years of age, whom the appellant had encountered on the internet, as well as for a possession of child pornography charge. The child pornography charge related to child pornography that was found on the appellant’s iPad during the search for evidence on the child luring offences. The appellant’s arrest on the child luring offences led the complainants in the sexual interference Information to come forward after not having done so for several years. It is necessary to describe the details of the offences on the child luring Information, as they form the subject matter of this appeal.

[8] The investigation into those offences began when the parents of the two girls, who lived outside of Ontario and did not previously know the appellant, alerted the police after finding disturbing images and communications on the girls’ iPad, including a photo of a mature male’s penis, and naked images of their 10‑year-old daughter.

[9] A forensic examination linked the communications to an internet account attached to the appellant’s email address, which led to the execution of a search warrant at his residence. The appellant was quickly identified as the perpetrator. His distinctive arm tattoo and a sports banner hanging over the door of his bedroom appeared in the images that had been sent.

[10] Forensic examination of the iPad seized from the appellant’s bedroom revealed communications with the 10-year-old over a three-month period, some of which were accompanied by pornographic images. Some of those images were particularly sordid, including photos of the 10-year-old urinating, defecating, and masturbating. Naked images of her 8-year-old sister sitting on a bed were also included. It was admitted that the concerning communications received on the iPad had been sent by the appellant, including attachments of a video of himself masturbating, photos capturing himself urinating, as well as child pornography involving other young children. In total, 20 images and videos of the children were sent to the appellant from his victims, and he sent them 44 images of child pornography, in addition to images and videos of himself masturbating.

[11] The forensic examination of the appellant’s iPad disclosed other child pornography unconnected to the child luring events consisting of close to 500 unique images, and 213 unique videos with a total run time of almost 18 hours.

[12] Further examination of the appellant’s iPad revealed conversations over three days between the appellant and an unknown user on his “Kik” application. The appellant sent this user child pornography, including six images of his two child-luring victims.

[13] No arrangements were made by the appellant to attempt to meet the children, and he never physically assault the young girls.

[14] Approximately a year after the appellant’s arrest for child luring, he entered a plea of guilty to charges on the child luring Information, without the facts being read in. The matter was put over for three months, during which time an Agreed Statement of Fact was prepared for both sets of charges and arrangements were made to bring the sexual interference Information forward for a plea on both informations. This was unquestionably done so that the appellant could benefit from the principle of totality, which I will describe below.

[15] Pending his final plea, the appellant had been on strict bail conditions, including house arrest, and had been compliant with his conditions, for a period of more than a year.

[16] When the matter was brought forward, the earlier plea on the child luring Information was struck and the appellant pleaded guilty to: (1) luring of a child under 16 by telecommunication for the purpose of facilitating an invitation to sexual touching relating to both the 8-year-old and 10-year-old victims, contrary to s. 172.1(1) (b) of the Criminal Code, R.S.C., 1985, c. C-46; (2) making sexually explicit material available to a child under 16 for the purpose of facilitating sexual touching relating to both the 8-year-old and 10-year-old victims, contrary to s. 171.1(1) (b); and (3) possession of child pornography, contrary to s. 163.1(4) . The trial judge conditionally stayed charge 2 and she convicted and ultimately sentenced the appellant on charges 1 and 3.

[17] At the same proceedings, the appellant also pleaded guilty on the sexual interference Information to two counts of sexual interference by touching a person under 16 with a part of his body, one count relating to his daughter, and one count relating to his stepson, both charged contrary to s. 151. The Crown had elected to proceed summarily on all of the sexual interference charges. Summary charges for this offence carry a maximum sentence of two years less a day: s. 151(b).

[18] When the pleas were entered the trial judge was advised that the parties had agreed to a joint position on the charges on the sexual interference Information of one-year incarceration, consisting of nine months relating to the appellant’s offences against his daughter, and three months consecutive relating to his stepson. The appellant sought a 21-month global sentence on the two non-stayed charges on the child luring Information, minus three and one-half to four months of Downes credit for his time on strict bail conditions.

[19] The appellant had a dated, limited, and unrelated criminal record consisting of a conviction for uttering threats in 1996, and a 2003 impaired driving conviction. The trial judge was presented with a favourable pre-sentence report for the 46 year-old appellant, showing him to be a contributing member of society and professing his remorse. He also presented a letter from an addiction treatment clinic confirming that he undertook alcohol counselling after the charges were laid and that he had maintained sobriety after his arrest.

[20] No written victim impact statements were presented but the mother of the children involved in the child luring Information spoke of the harm the offences caused to her family, including her children, her and her husband.

[21] The Crown sought a global sentence of eight years. In spite of affirming the one-year joint position sentence on the sexual interference Information and electing to proceed summarily on that information, the Crown submitted that, “[s]ix years is the sentence that’s appropriate for a single incident of sexual interference,” after the decision in R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424. The Crown also cited R. v. T.J., 2021 ONCA 392, 156 O.R. (3d) 161, submitting that “[t]wo years is the minimum sentence for [a single incident of sexual touching]”.

[22] It is clear that through its submissions the Crown was relying on the sexual interference offences to aggravate the remaining sentence to be imposed on the child luring Information charges. In discussing the principle of proportionality, the Crown referred to the “four victims” of the offences. It referred to the offences charged in the two informations as a “pattern of recidivism” over “a span of 13 years”, involving “separate offences charged including four different victims”. The Crown emphasized the breach of trust as an aggravating factor even though this factor applied solely to the sexual interference Information charges, and said, “multiple instances [of sexual assault offences] require a significantly higher sentence because they show that the offender each time is turning their mind to commit the same sexual act again to victimize a child again.”

[23] In specifying the sentence for individual offences, the trial judge took no issue with the one-year joint sentence on the two counts of sexual interference, ultimately imposing a combined one-year sentence for the two sexual interference offences, minus Downes credit. She then described the basis for the Crown’s request for an eight-year concurrent sentence on the offences on the child luring Information, a summary that included the aggravating features of the sexual interference offences. Indeed, it is fair to say that most of the details she drew from the Crown’s submissions in favour of an aggravated sentence for child luring related to the sexual interference offences, and not the child luring offences.

[24] The trial judge said:

In determining an appropriate sentence I have considered the relevant aggravating and mitigating circumstances that are presently at play. In terms of aggravating factors, I find the following to be aggravating. We have four separate victims. All of the victims were aged ten and under at the time the offences occurred. [The appellant] was fully matured when he committed the offences. [The appellant] was in a position of trust and authority to two of the victims as he was [one victim’s] father and [another victim’s] stepfather. The sexual offences spanned over a decade, 12 years to be precise. The offences involving [his] children involved touching of the genitals, kissing of the genitals, as well as digital penetration with respect to [his daughter]. [2] There were multiple occurrences with respect to [his daughter].

Regarding [his stepson], the incident occurred when he was sleeping and completely vulnerable.

[25] The trial judge also identified aggravating factors relating to the child luring and child pornography offences, identifying the size of the collection and the fact that the appellant groomed the children; counselled them to create child pornography; shared the pornographic images of the children “with other users” leaving “a footprint out there in cyberspace of these images for the rest of the children’s lives, leading to further revictimization” [3] ; and “sent pornographic material [to] the [child luring victims] exposing them to sexually explicit content”.

[26] In expressing the impact of Friesen on the global sentence she was going to impose she said, “[a]s this is a case involving sexual offences against children, [with] two of whom [the appellant] was in a position of trust and authority, I will follow the direction of the Supreme Court of Canada in Friesen .” After affirming that sentences must reflect “the gravity of sexual offences against children” and “the normative character [and wrongfulness] of the offender’s actions and the consequential harm”, including “the potential harm to children”, she commented that “mid-single digit penitentiary terms for sexual offences against children are normal” and “upper single-digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.”

[27] The trial judge then repeated the aggravating features of the offences the appellant committed against his own children, and how these offences as well as the victimization of “another set of children” “occurred over a period of time that spanned more than a decade and involved four different victims.” She found that, in spite of his guilty pleas having “saved the victims from having to testify and relive their experiences publicly”, “the nature of the offences and the repetition of the offences over a significant period of time calls out for a significant custodial sentence.”

[28] The trial judge rejected the defence submission that the appellant’s efforts to address his addiction were mitigating.

[29] The trial judge concluded, “I find that the appropriate and just sentence I can impose is a global sentence of eight years.” She broke this sentence down as three months’ imprisonment (nine months minus six months of Downes credit) on the sexual interference count against the appellant’s daughter; three months’ consecutive imprisonment on the sexual interference count against his stepson; and seven years’ consecutive imprisonment on the child luring count involving the two children, with a seven-year concurrent sentence of imprisonment for possession of the child pornography.

ISSUES

[30] The appellant argues that the seven-year concurrent sentences for his child luring and possession of child pornography convictions, consecutive to the one-year joint sentence for the sexual interference offences, are demonstrably unfit. Although the appellant did not articulate in his factum an error in principle by the trial judge, when he described the aggravating factors to be considered he confined his description of relevant aggravating factors to those arising from the child luring offences. The implication, of course, is that the trial judge should not have treated the facts surrounding the sexual interference offences as aggravating on the child luring Information sentences.

[31] During oral argument the appellant’s submissions featured the trial judge’s failure to respect the joint position relating to the sexual interference offences by using the aggravating factors from those offences to elevate the sentence imposed on the child luring and child pornography charges. During oral argument on the appeal, the appeal Crown responded to that issue, including when questioned from the bench. The issues on appeal can therefore be fairly stated as follows:

1. Did the trial judge err in principle by relying on the aggravating circumstances of the sexual interference offences when sentencing the appellant on the offences in the child luring Information? If so, did the error in principle have a material impact on the sentences imposed?
2. Were the sentences imposed for child luring and possession of child pornography demonstrably unfit?

[32] I would allow the first ground of appeal. I am persuaded that the trial judge erred in principle in this regard, and that this error in principle affected the sentences imposed. It therefore falls to us to resentence the appellant, without deferring to the sentence identified by the trial judge. As a result, it is unnecessary for us to consider the fitness of the sentence as a separate ground of appeal, and I will refrain from doing so.

ANALYSIS

A. Did the trial judge err in principle when sentencing on the child luring information?

[33] Although the trial judge articulated a one-year global sentence for the charges on the sexual interference Information, she erred in law by treating the aggravating elements of the sexual interference offences as a bases for elevating the sentence that she imposed for the charges on the child luring Information. In effect, she added additional punishment beyond the joint sentence agreed to on the sexual interference offences by imposing the joint sentence agreed to by the parties, but then reusing the aggravating features of the sexual interference offences when determining the length of the global sentence she would impose for the child luring and child pornography offences. It is impossible to tell how significant the overall increase in the sentence was, but the aggravating factors relating to the sexual interference offences clearly had a material bearing on the remaining sentences.

[34] The trial judge’s reliance on the sexual interference offences in assessing the gravity and therefore length of the remaining sentence is amply illustrated in paragraphs 23-27 and 29, above. This was an error in principle.

[35] In R. v. Anthony-Cook, 2016 SCC 43, [2016] 2 S.C.R. 204, at para. 2, Moldaver J., for the court, reaffirmed that joint submissions on sentence “are vital to the efficient operation of the criminal justice system.” They are an “accepted and acceptable” means of plea resolution that provides benefits to all participants in the criminal justice system: Anthony-Cook, at paras. 2, 35. Given the importance of providing certainty to enable plea negotiations, and the other advantages joint-position sentencing brings, judges are to exercise restraint before departing from joint sentencing submissions. Indeed, judges are not permitted to reject joint submissions even to avoid a sentence that could be set aside on appeal as an “unfit sentence”. They may reject joint submissions on sentence “only where the proposed sentence would be viewed by reasonable and informed persons as a breakdown in the proper functioning of the justice system”: Anthony-Cook, at para. 42. This degree of restraint is required because even what would ordinarily be an unfit sentence may be acceptable in the context of a negotiated outcome, for example, where “the Crown may have difficulty proving [a very serious crime] because of deficiencies in its case”: Anthony-Cook, at para. 47. The trial judge will often not be privy to the basis for the joint sentencing submission.

[36] Safeguards are therefore built in before a judge can jump a joint submission on sentencing. If unsatisfied with the proposed sentence, the judge is required to notify the parties, giving them an opportunity to defend their joint position, and a chance to explain, to the extent they can do so within the bounds of privilege, why the joint position sentence should be accepted: Anthony-Cook, at paras. 53-58. The judge should also consider whether to permit the accused to withdraw their guilty plea: Anthony-Cook, at para. 59. If after this, the judge who has received the joint submission decides that they must reject the joint position they are to provide clear and cogent reasons for doing so: Anthony-Cook, at para. 60.

[37] In my view, by using the circumstances of the sexual interference charges as aggravating factors that increased the length of the remaining sentence, the trial judge effectively added additional punishment for the sexual interference charges beyond that agreed to in the joint position of the parties relating to the sexual interference offences. The trial judge should not have done so, at least not without complying with the requirements set out in Anthony-Cook.

[38] The error in principle I have identified had an undeniable effect on the sentence imposed. That error is therefore reversible: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44. As a result, this court is to consider the matter afresh, without deferring to the sentence imposed by the trial judge: Anthony-Cook, at para. 6. Since it is unnecessary to do so, I will refrain from commenting on the alternative ground relied on by the appellant, the fitness of the sentences imposed.

B. What Sentence should be imposed for the offences on the Child Luring Information?

[39] In my view, a sentence of four years and six months of imprisonment, consecutive to the one-year joint sentence of incarceration on the sexual interference Information, is a fit global sentence for the charges on the child luring Information – three years and six months for the child luring offences (42 months), and one-year consecutive imprisonment for the possession of child pornography. [4]

General Considerations

[40] I would begin by noting that the sentence imposed will be influenced by the goals of sentencing, identified in s. 718 of the Criminal Code, that predominate in the circumstances of the case. For child luring, the primary sentencing objectives are deterrence and denunciation: Friesen, at para. 101; and see s. 718.01 of the Criminal Code. The same holds true for the offence of possession of child pornography: R. v. Stroempl (1995), 105 C.C.C. (3d) 187 (Ont. C.A.); R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at paras. 3, 16 (citations omitted); R. v. McCaw, 2023 ONCA 8, 165 O.R. (3d) 179, at para. 28; R. v. S.C., 2019 ONCA 199, 145 O.R. (3d) 711, at para. 24, leave to appeal refused, [2019] S.C.C.A. No. 38625.

[41] To accomplish deterrence, a sentence must be serious enough to discourage both the offender (“specific deterrence”) and others (“general deterrence”) from engaging in such behaviour in the future. Indications that the offender is likely to reoffend can increase the length of sentence required to specifically deter the offender, just as indications of remorse and of rehabilitative steps can reduce the required length: see, for example, R. v. Ghadban, 2015 ONCA 760, 342 O.A.C. 177, at para. 23.

[42] In the case of offences against children, a sentence must also be sufficient to denounce the wrongfulness of the conduct and the actual and potential harm that the offences give rise to. This imperative, reaffirmed in Friesen, at paras. 50, 76-86, is not new. This court reminded sentencing judges of the same thing in R. v. D.(D.) (2002), 58 O.R. (3d) 788 (C.A.), at para. 45, and this was reinforced prior to Friesen, in R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752, at paras. 55-56, 70, per Huscroft J.A., and paras. 86-91 per Pepall J.A., (concurring).

[43] In Friesen it was made clear that trial judges are to sentence in a fashion that reflects both “potential harm” and “actual harm”: Freisen, at para. 76. “Potential harm” consists of reasonably foreseeable harm, based on the reasonably foreseeable consequences of the offence: Friesen, at para. 84. Beyond this, “actual harm” that has been proven can further aggravate the offence and is a “key determinant of the gravity of the offence”: Friesen, at para. 85. The importance of actual harm to a child victim is reflected in s.718.2(a)(iii.1) of the Criminal Code, which identifies “a significant impact on the victim, considering their age and personal circumstances” as a statutory aggravating factor.

[44] There are limits on how long sentences can be made to achieve the utilitarian goals of reducing crime and protecting society through deterrence and denunciation. It would violate the fundamental principle of proportionality to impose a sentence that either exceeds or fails to reflect the “gravity of the offence” and the “degree of responsibility of the offender”: s. 718.1. Therefore, offences of the same kind can yield a range of penalties, situated on a spectrum. The worse the offence and the greater the degree of responsibility, the greater the sentence should be.

[45] In measuring the gravity of the offence and the degree of responsibility of the offender and situating the offence on that spectrum, a court that imposes the sentence shall take into consideration the aggravating and mitigating circumstances relating to the offence and offender: see s. 718.2(a). The role of aggravating and mitigating factors is to assist in assessing the gravity of the offence and the degree of responsibility of the offender: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 11.

[46] It is helpful to think of the material aggravating factors as those that increase the gravity of the offence relative to other offences of the same kind, or that increase the degree of responsibility of the offender, relative to other offenders committing the same kind of offence. It is helpful, in turn, to think of material mitigating factors as those that reduce the gravity of the offence relative to other offences of the same kind, or that move the degree of responsibility of the offender downwards relative to other offenders committing the same kind offence.

[47] Aggravating and mitigating circumstances are not the only considerations in identifying a fit sentence for the crime in question. A proportionate sentence is also identified by applying the principles that govern sentencing for the offence in question and by considering the material sentencing objectives. I will refer to principles relevant to this case as they arise.

[48] Before applying this analysis to the facts of this case, I would make two general points about aggravating and mitigating factors, because these general points arise in this case.

[49] First, given that the inquiry into aggravating and mitigating circumstances is undertaken to determine where the offences to be sentenced sit relative to other offences of the same kind, so that a fit sentence can be imposed, sentencing considerations that apply to all offences of a particular type do not perform this role and are not “aggravating” in the true sense of the term. It would therefore be an error in principle to use considerations that apply to all offences of the type being sentenced as a basis for pushing a particular offence up the sentencing range appropriate for that offence. For this reason, I would not defer to the trial judge’s decision to identify as aggravating the fact that the appellant was fully mature when he committed the offence. By definition, to commit the offence of child luring the offender must have attained the age of maturity required to commit an offence against a child. The fact that he groomed the children is also inherent in a child luring offence, although the nature, extent and duration of the grooming that occurred can certainly be an aggravating consideration: see R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 43; and see Friesen, at para. 125.

[50] I have already made the second general point that requires comment, but it warrants reiteration. To be appropriately considered, aggravating factors must relate to the offence being sentenced. In this case, that is the “remaining sentence” for the charges on the child luring Information, given the trial judge’s acceptance of the joint position on the sexual interference charges.

[51] Once the gravity of the offence and the degree of responsibility are identified, it falls to the trial judge to identify where within the appropriate sentencing range or relative scale of punishment the sentence will fit and what the sentence should be. The scale of sentencing that applies is crucial in arriving at those calculations, since “proportionality” offers no objective criteria for quantifying a sentence. In Friesen, at para. 33, Wagner C.J.C. and Abella J. explained that the principle of parity, which is closely linked to the identification of sentencing ranges, “gives meaning to proportionality”. Absent referable scales of punishment, reasonable people can disagree profoundly on how long a sentence of incarceration needs to be to promote effective deterrence, or to express denunciation. Sentencing ranges therefore anchor the scale or proportionality of sentences in pursuit of the central principle of justice that like cases should be treated alike, and they reflect the accumulated wisdom over time of numerous judges attempting to craft just punishments.

[52] Neither the Friesen position that sentencing ranges are “guidelines, not hard and fast rules,” para. 37, nor principles of appellate restraint in interfering with sentencing decisions, diminish the importance of sentencing ranges in identifying fit sentences. Those doctrines are intended to give maximum tolerable reach to sentencing discretion, and to limit sentence appeals to truly unjust outcomes. In my view, notwithstanding the limits of appellate review, a sentencing judge should set out to anchor their decision in the ranges exhibited by related cases, as affected by the directions of binding authority such as Friesen.

[53] The Supreme Court of Canada, writing in Friesen, sent a “strong message” to courts to ensure that sentences involving sexual offences against children, including child luring, are proportionate and reflect the “wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large”: Friesen, para. 5. The Court invited appeal courts to depart from past precedents to achieve this: see Friesen, at para. 35. It provided guidance on applicable sentencing principles in sexual offence cases involving children, including child-luring, to assist in this evaluation, but cautioned that because of the facts before them, the guidance it was providing focused on assault-based sexual offences: Friesen at para. 44.

[54] Noting that reports of child luring tripled between 2010 and 2017, the Court emphasized the dangers of technology in facilitating sexual offences: Friesen, at paras. 46-49. The Court also reinforced the emphasis that is to be given to the “personal autonomy, bodily integrity, sexual integrity, dignity, and equality” rights of children, and to focus on “emotional and psychological harm” to the child and to families: Friesen, at paras. 56, 63. It reinforced the wrongfulness in exploiting the vulnerability of children for sexual purposes and directed courts to consider that sexual offences against children are underreported: Friesen, at paras. 65, 67. The Court called for sentencing practices to reflect this “deepening and evolving understanding of [the] severity” of sexual offending, as well as the inherent “wrongfulness and harmfulness of sexual offences”: Friesen, at paras. 74-75. The Court also directed courts to ensure that sentencing ranges reflect Parliament’s intention to increase sentences through legislative increases in maximum sentences: Friesen, paras. 96-100, 108.

[55] The Court did not identify sentencing ranges for offences, leaving it to appellate courts to do so, but the Court commented 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”: Friesen, at para. 114.

[56] The message is clear. Given Friesen and the increase in the maximum penalty for child luring to 14 years in 2015 through the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, the sentencing ranges reflected in existing authority for both child luring and possession of child pornography require reconsideration. Given that the establishment of a sentencing range is best identified incrementally, I do not purport to determine a set range applicable to the kinds of offences that the appellant committed, but it is evident that the existing sentence range cannot be applied without adjustment, and I propose to do so.

Child Luring

(1) The Gravity of the Child Luring Offences

[57] The features that aggravate the gravity of the child luring offences in this case include: (1) the fact that there were two victims; (2) the young ages and the degree of immaturity of the victims, eight and ten years of age, respectively; (3) the extensive, sexually explicit communications that occurred; (4) the duration of the offending, a period approaching three months, during which repeated communications occurred; (5) the fact that the appellant sent pornographic images, including images of his penis, his own indecent acts, and child pornography to the victims; (6) directing the ten-year-old to engage in indecent acts; (7) inducing the children to create child pornography; and (8) sharing images of the children that constitute child pornography with another person.

[58] In this case there was also reasonably foreseeable or “potential” harm to the children, given their young age, the degree to which they were manipulated and degraded, and the appellant’s conduct in capturing and sharing images of the children. It is reasonably foreseeable, if not inevitable, that both the children and their family will suffer psychological harm going forward. I have considered this in determining a fit sentence.

[59] There was also evidence offered through the mother’s victim impact statement to show “actual harm”, including the loss of trust by the parents, their sense of helplessness, the loss of innocence of the children, and the counselling the parents arranged for the children. I have considered this evidence, as well, but in my view, this is not the kind of evidence of “actual harm” that should materially elevate the sentence within the range. Sadly, these are common if not inevitable sequalae of child luring offences and largely duplicate the presumed harm I have identified. To use the same considerations twice as separate aggravating factors would be to double count them unfairly. Moreover, using common if not inevitable sequalae of a type of offence as “actual harm” that further elevates the gravity of the offence would push almost all offences towards the top of the range, thereby defeating the utility in having sentencing ranges and impeding the ability to identify and respond proportionately to the relative gravity of offences within the range. In my view, the victims, including their families, have predictably and tragically been harmed, and this needs to be recognized, but this is not a case, such as R. v. Crawford, 2020 ONCA 790, where inordinate demonstrated harm rightly elevates a fit sentence to the upper reaches of the range.

[60] The gravity of the child luring offences is limited relative to some other child luring offences by the fact that the appellant did not attempt to meet with the children, and the luring did not lead to criminal physical contact, as it occasionally does. These are not mitigating factors per se but are relevant considerations in situating the gravity of the offence. Beyond this, there are no mitigating factors material in situating the gravity of the offence.

(2) The Degree of Responsibility relating to the Child Luring Offences

[61] There are few aggravating factors relating to the degree of responsibility of the appellant for the offences on the child luring Information. For example, he did not have a related criminal record, was not on probation or other conditions at the time, there were no assessments done establishing that the appellant presents a significant risk of reoffending, and he was not in a position of trust over the child luring victims.

[62] In sentencing the appellant, the trial judge treated the prior sexual interference offences that the appellant had pleaded to before her as significantly aggravating the appellant’s overall degree of responsibility because those prior offences demonstrated an ongoing pattern of sexual offending. In my view, the fact that the appellant had committed the sexual interference offences prior to the child luring offences has little, if any, relevance in determining the length of the period of incarceration that the appellant should receive for the offences on the child luring information. I will explain.

[63] “Coke’s principle” holds that “subsequent convictions cannot be relied upon to aggravate the sentence imposed for a prior offence” (emphasis added): R. v. Wilson, 2020 ONCA 3, 384 C.C.C. (3d) 355, at para. 60; see also R. v. Skolnick, [1982] 2 S.C.R. 47. Put otherwise, even if offence #1 occurred before the offence being sentenced (offence #2), offence #1 cannot aggravate the sentence imposed for offence #2 unless the accused was convicted of offence #1 before committing offence #2. Stated in this way, Coke’s principle may be too broad. Some courts are of this view: R. v. Andrade, 2010 NBCA 62, 363 N.B.R. (2d) 159, at paras. 12-22; and see the obiter dictum in R. v. D.(G.), 2013 QCCA 726, at para. 20. Others are not: see, for example, R. v. Pete, 2019 BCCA 244, at para. 33. Uncertainty remains about the extent and intensity of the application of Coke’s principle in Ontario: see R. v. R.M., 2020 ONCA 231, 150 O.R. (3d) 369, at paras. 31-37.

[64] I do not propose to settle the general controversy over the entire influence of Coke’s principle but as I explained in Wilson, at para. 61, there is undeniable sense in the rule, depending upon the inference being drawn. For example, prior criminal convictions are ordinarily aggravating because it is contemptuous for offenders who have already been convicted to disregard that experience and offend again. If an offender has yet to be convicted of offence #1 that reasoning cannot apply. Similarly, a prior criminal record can be a predictor of the need for a harsher sentence to specifically deter the offender since the last penalty was not effective in doing so, given the subsequent offence. That inference is equally unavailable where no prior sentence has been imposed. Nor, in my view, can the earlier criminal conduct enhance the need for denunciation of the later offence. The sentence that denounces that offence is the one that is imposed for that offence.

[65] Having said this, it would be irrational not to recognise the relevance of repeat offending to the prospect of rehabilitation or even the need for incapacitation. This is so, regardless of the order in which the convictions occurred: R.M., at paras. 6, 31-37; Wilson, at paras. 65-67. Put simply, evidence that the accused was engaging in prior criminal conduct for which he was not yet convicted at the time of the offence being sentenced should not be treated as an aggravating factor calling for a harsher sentence as it does not speak to the gravity of the offence or the degree of responsibility of the offender, but it can appropriately impact on the goals of sentencing in the particular case, and influence the tools of sentencing that are employed, for example, incarceration or probation.

[66] In my view, there is little if any room in the circumstances of this case to properly use the fact that the appellant committed earlier acts of sexual interference when sentencing him for the offences on the child luring Information. There was never any doubt about the tools or objectives of sentencing that would predominate. The appellant would receive a denunciatory, deterrent sentence of incarceration. Although it is always to be hoped that offenders will rehabilitate, the sentence in this case is not materially driven by the goal of rehabilitation, nor the goal of incapacitation. This is not, as was the case in Wilson, a dangerous offender proceeding, and the Crown did not rely in its submissions on the need to lock the appellant away as a means of protecting children, nor could it have effectively done so without more compelling evidence of a significant level of ongoing threat. I am therefore persuaded that the fact that the appellant had committed the sexual interference offences prior to the child luring offences has little if any relevance in determining the length of the period of incarceration the appellant should receive for the child luring offences or the possession of child pornography offence, based on appropriate lines of reasoning.

[67] Most of the mitigating factors in this case relate to the appellant’s degree of responsibility and apply to both the child luring offences and the child pornography offences, which I will address below. Those mitigating factors include: (1) the absence of a relevant criminal record and the appellant’s prior prosocial conduct; (2) the pleas of guilty to the offences; and (3) the remorse the appellant had expressed and demonstrated not only through his guilty pleas but through his apology to the victims and the rehabilitative steps he had taken. The trial judge accepted that these were mitigating factors and they are therefore open for consideration now.

[68] In resentencing the appellant, I would not treat the absence of a related criminal record as materially mitigating, given that the appellant admitted committing other sexual offences during the same proceeding through his guilty pleas to the charges in the sexual interference Information. Quite simply, in the face of these admissions of earlier serious criminal misconduct, he is unable in the circumstances to benefit from the inference based on the absence of a related prior criminal record that he was of previous good sexual character.

[69] Similarly, his previous prosocial conduct has only limited significance in the sentencing of sexual offences, given that many sexual offences are committed by persons of prior good character and in many cases, prior good character helps enable sexual offences, see: R. v. Profit, [1993] 3 S.C.R. 637, at pp. 637-638 and R. v. R.W.D. (2005), 198 C.C.C. (3d) 541 (Ont. C.A.), at para. 12. This may well have been the case here, assisting the appellant in befriending the victims before sexualizing their communications and encouraging them to engage in sexual conduct.

[70] I would give greater weight to the guilty plea than the trial judge did because I am persuaded that this is required, as a matter of principle. I accept that the case against the appellant was overwhelming, and that this reduces the force of his guilty plea as an indication of remorse: Friesen, at para. 164. But a strong Crown case does not undercut all of the considerations that result in guilty pleas being given mitigating effect. Speaking generally, a sentence should be more lenient after a guilty plea than it would be after trial: Anthony-Cook, at para. 36. Were this not so, the incentive to plead guilty would disappear, resulting in more costly, stressful trials. More importantly, it would result in more victims being forced to testify, with the trauma and emotional cost that a trial entails, particularly in sexual offence trials: Anthony-Cook, at para. 39, citing R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, at para. 111, leave to appeal refused, [2011] S.C.C.A. No. 33984. In this case, the guilty plea may have spared young children from having to testify. The guilty plea should therefore be given material weight. Friesen, at para. 164, does not say otherwise. It simply held that, in the astoundingly horrific circumstances of that case, any error in principle that may have occurred because of a failure by the trial judge to consider the guilty plea did not have a material effect on the sentence. In my view, in the circumstances of this case, the guilty plea is an important consideration in identifying a fit sentence.

[71] I would also give effect to the appellant’s expressions of remorse, and his other indications of remorse, including his rehabilitative efforts relating to the substance abuse problems that he claims contributed to the offences. I appreciate that the trial judge rejected the appellant’s submission that his efforts at addressing his substance abuse problems should be given mitigating effect, but, with respect, she appears to have misapprehended the relevance of the appellant’s attempt to address his substance abuse issues. In rejecting his submission, the trial judge quoted from R. v. Berseth, 2019 ONSC 888, at para. 105, where Durno J. summarized the law by affirming that “self-induced intoxication is irrelevant to the gravity of the offence” and that although it can be mitigating on the degree of responsibility, it would be “minimally mitigating”. However, the appellant did not rely on his progress in addressing his substance abuse as reducing the gravity of the offence or mitigating his degree of responsibility. His point was effectively that his efforts at addressing his substance abuse are indicative of his remorse and his desire to prevent future offending by eradicating an underlying cause of his offending, both considerations that, if credited, can reduce the need for a punitive sentence to achieve specific deterrence. I would therefore consider his rehabilitative efforts in determining a fit sentence.

(3) Situating the Sentence within the Relative Range for Child Luring Offences

[72] The periods of incarceration I arrive at must also reflect the principles of restraint that must be considered when depriving an offender of liberty, identified in ss. 718.2 (d) and (e) of the Criminal Code, which oblige sentencing judges to impose the least intrusive sentence that reflects the principles of sentencing.

[73] In my view, the aggravating and mitigating factors I have just described, and applicable principles of sentencing, place a fit sentence for the appellant’s child luring offences in the middle of the range of sentences suitable for child luring. I accept that the aggravating features of the appellant’s child luring offences, which I have identified in paras. 57-60 above, are deeply troubling. They certainly require a sentence beyond the lowest end of the sentencing range for that kind of offence and, on their own, work towards a higher mid-range sentence. But those factors do not warrant a sentence at the highest range for child luring offences, since the child luring the appellant engaged in lacked a number of features that would materially elevate the gravity of the sentence, most notably: (1) any attempt to meet with the children; (2) successful luring which brings the offender and the victim together leading to direct physical contact; (3) a relationship of trust or the exploitation of a pre-existing relationship between the offender and the victim, beyond the kind of trust-building that is inherent in all cases of child luring; and (4) extortion or threats to secure compliance.

(4) The Sentencing Range for Child Luring

[74] Uncertainty remains as to the appropriate sentencing range for child luring cases, a fact commented upon recently by Superior Court justices, including in R. v. Kavanagh, 2023 ONSC 283, at paras. 95-116; R. v. Sinnappillai, 2022 ONSC 832, at para. 64; and R. v. Collier, 2021 ONSC 6827, at paras. 90‑ 99.

[75] Until 2011, this court appeared to endorse a sentencing range for child luring of 12 months to 2 years: R. v. Jarvis (2006), 211 C.C.C. (3d) 20 (Ont. C.A.); R. v. El-Jamal, 2010 ONCA 575, 261 C.C.C. (3d) 293. More recently, while dissenting on other grounds, Karakatsanis J. affirmed this range in R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 177, commenting, “[i]n most cases proceeding by indictment, the appropriate range will be from 12 to 24 months.” She based these numbers on an examination of existing sentencing trends, including in this court: see Jarvis, at para. 31.

[76] Moldaver J.A. (as he then was), expressed a different opinion in Woodward, at para. 58. He concluded that Rosenberg J.A. did not intend to set a range in Jarvis, but, even if he had that a range of three to five years “might well be warranted to deter, denounce and separate from society adult predators who would commit this insidious crime”: Woodward, para. 58. Justice Moldaver supported this provisional conclusion with the fact that Parliament has increased the maximum punishment, and that child luring is a pervasive problem: Woodward, para. 58.

[77] Despite Moldaver J.A.’s suggestion, few sentences imposed for the offence of child luring even meet the lowest end of that range, including sentences that have been upheld by this court. Even in child luring offences involving a real victim, rather than an undercover police officer, sentences almost invariably fall within the six-months to two-year range: see, for example, R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481 (18 months of a 23 month global sentence, including a sexual assault after successful luring); R. v. Rafiq, 2015 ONCA 768, 342 O.A.C 193 (two-years-less-a day); R. v. A.H., 2018 ONCA 677, 366 C.C.C. (3d) 69 (Ont. C.A) (15 months). This remains largely true even after the Friesen decision. This court has considered child luring sentences on at least four occasions since Friesen. In three of those cases, child luring sentences of two years or less have been upheld, including R. v. Mould, 2020 ONCA 78 (168 days); R. v. Stack, 2022 ONCA 413; (two years, and four months consecutive for related breaches); and R. v. Ritchie, 2023 ONCA 53, (16-months). In Crawford, a six-year global sentence was upheld that included a child luring conviction. However, the child luring that Mr. Crawford engaged in facilitated contact and sexual intercourse with an 11‑year‑old developmentally delayed classmate of Mr. Crawford’s son, who suffered significant psychological damage as a result of his offences, and whose relationship with her grandmother – her guardian – ruptured because the grandmother tried to keep her away from Mr. Crawford. Crawford is not instructive on the range of sentencing appropriate where the luring occurs without the commission of accompanying sexual offences.

[78] Decisions in the Superior Court of Justice are split. There is an expression of support for a post- Friesen movement to a three to five-year sentencing range (see, R. v. Moolla, 2021 ONSC 3702 (three-and-a half years)), but other decisions tend not to raise the sentencing range: See for example, Collier (two years less a day); Sinnappillai; (16 months); Kavanagh, (16 months), and R. v. Lypaczewski, 2023 ONSC 3696 (12 months).

[79] The range also continues to lean towards reformatory sentences in the Ontario Court of Justice: see, for example, R. v. Wickramasinghe, 2022 ONCJ 331 (global sentence of two-and-a half years for child luring of two victims, and possession of child pornography); R. v. Rasiah, 2021 ONCJ 584 (18 months); and R. v. Gould, 2022 ONCJ 187 (18 months concurrent on child luring and invitation to touching against three victims). Exceptionally, in R. v. J.R., 2021 ONCJ 14, the accused, who had a related record, received five years for luring and extorting sexual conduct from his daughter, who was between 11 and 12 years of age at the time of the offences over a seven-month period while she was in Children’s Aid Society care.

[80] In considering a provisional range that will enable a fit sentence for the appellant to be determined for the child luring offences, I would make the following observations.

[81] First, child luring is an inchoate offence, meaning that it is “a preparatory crime that captures conduct intended to culminate in the commission of a completed offence”: Morrison, at paras. 40, 176. Put simply, the function of the child luring offences is to prevent assault-based sexual offences before they happen. Often there is no real victim when child luring offences are committed, but an undercover officer posing as a victim: see examples: R. v. Haniffa, 2022 SCC 46, 475 D.L.R. (4th) 496; and R. v. Braithwaite, 2023 ONCA 180. Typically, preparatory offences carry a lower penalty than fully consummated offences, such as attempts, which generally carry a sentence that is half of the sentence imposed for a completed offence: s. 463 (d) of the Criminal Code. Child luring can therefore reasonably be expected to carry a sentencing range that is lower than the range applicable to assault-based sexual offences involving children.

[82] I agree with McArthur J. in Collier, at para. 97, that when the Supreme Court in Friesen made its comment at para. 114 about “mid-single digit penitentiary terms” being “normal”, and “upper-single digit and double-digit penitentiary terms” being neither “unusual” nor “rare”, the Court was addressing violence-based offences, which the Court defined earlier by listing assault-based sexual offences such as sexual interference and sexual assault. The context and language used by the Court in making this point supports this conclusion. In my view, this is one of the instances in the decision where the Court was focusing on the factual scenario before it, which involved sexual interference offences. This guidepost, offered by the Court, cannot be transplanted directly to the offences now under consideration, but the general principles must be.

[83] Second, the Court in Friesen did not abolish central, statutorily affirmed principles that have long played a crucial role in guiding sentencing decisions. The range that is determined cannot subvert but must reflect the principles of restraint, identified in ss. 718.2 (d) and (e). Sentencing ranges for child luring offences must go up, but with due regard for the liberty implications of doing so.

[84] Third, although child luring is a serious offence that will generally require incarceration, it is a broad offence that can be committed by a wide range of offenders in varied situations, some of which may not deserve elevated levels of punishment: Morrison, at para. 179, per Karakatsanis J. The sentencing range that is established must not be narrow and must not have a harsh lower end.

[85] It is material, in this regard, that child luring (not unlike possession of child pornography) can proceed either as a summary or indictable offence. A summary conviction prosecution for each offence carries a maximum of two years imprisonment: s. 172.1(2)(b) (child luring) and s. 163.1(4)(b) (child pornography). It would make little sense to establish a sentencing range for an indictable prosecution of these offences that begins at a higher level than the maximum sentence for summary prosecutions. In practice, doing so would encourage a largely unused sentencing range. There are also principled reasons to be cautious about starting a sentencing range for indictable offences that begins above or at the top of the maximum sentence for summary conviction offences. Doing so would arguably give prosecutors undue influence on the minimum sentence likely to be imposed by electing to proceed by indictment when it is for judges and not prosecutors to assess fit sentences, in all of the circumstances.

[86] Fourth, when the jurisprudence of this court does mature to the point where sentencing ranges should be established, the admonition of the Court in Friesen, at paras. 30-31, requires consideration. Both the category of the offence and the logic behind it must be described clearly.

[87] At this juncture, based on those principles, I am prepared to proceed on the child luring offences with the benchmark that an upper-range sentence is marked not by the two years that predominates in current authority, but by the five‑year mark identified by Moldaver J.A. (as he was then) in Woodward. I have significant reservations about endorsing a three-year sentence as the bottom of the range, for the reasons I have expressed.

(5) A Fit Sentence for the Child Luring Offences

[88] On this basis, I am persuaded that, prior to considering the principle of totality, a sentence of four years is a powerful mid-range sentence that is fit for the appellant’s child luring conviction. [5]

Possession of Child Pornography

(1) The Gravity of the Possession of the Child Pornography Offence

[89] Considering the possession of child pornography conviction, in R. v. Kwok, at para. 27, Molloy J. provided a helpful list of aggravating factors utilized in sentencing for possession of child pornography. In my view the only aggravating feature included in the non-exhaustive list that Molloy J. offered that was established on the evidence at trial, or before us, relates to the size of the collection which, although smaller than such collections often are, was significant. Other aggravating factors identified by Molloy J. are absent, or were not established, including how graphic the collection was, or whether the child pornography was gathered in circumstances that would encourage its creation (such as by trading images to acquire it, by purchasing it, or using sophisticated means of acquisition).

[90] To be sure, the production and distribution of the child pornography that the appellant induced his child luring victims to create would ordinarily operate as a significant aggravating factor in determining a fit sentence for possessing that child pornography. However, I have already considered this misconduct as aggravating behaviour relating to the sentence to be imposed for the child luring offences. It would not be fair to double count it by using the production and distribution of this child pornography to lengthen both the sentence for child luring and the sentence for possession of child pornography.

(2) The Degree of Responsibility of the Possession of Child Pornography Offence

[91] The same considerations that apply in situating the degree of responsibility of the appellant for the child luring offence apply here. The mitigating factors, including the guilty plea, the remorse, and the efforts that the appellant has made to prevent future offending must be considered in gauging the appellant’s degree of responsibility.

(3) Situating the Sentence within the Relative Range for Possession of Child Pornography Offences

[92] I am of the view that the appellant’s possession of child pornography offence invites a sentence trending to the lower range for child pornography possession offences. Possession of child pornography is always disturbing and dangerous, inviting strong social censure. But some offences are more disturbing and dangerous than others, as are some offenders. It would be contrary to the principles of sentencing to treat every case of possession of child pornography as worthy of the highest range of sentence without regard to the relative seriousness of the offence, and the relative moral fault of the offender.

[93] There are few proven aggravating factors relating to the child pornography offence the appellant committed, particularly given that I have already considered the distribution of the child pornography in sentencing the child luring offence. The collection is significant, but not “massive,” compared to many collections, which not uncommonly include thousands if not tens of thousands of images. And as I have pointed out, this case lacks a number of common aggravating factors, including material aggravating factors relating to the degree of responsibility of the offender. Then there are the material mitigating factors, most significantly, the guilty plea. I am persuaded that this offence and this offender warrant a sentence in the lower range for this offence.

(4) The Sentencing Range for Possession of Child Pornography

[94] The sentencing range for possession of child pornography is uncertain, just as the range for the child luring offence remains uncertain. In Kwok, Molloy J., based on the authority available in 2007, identified a sentencing range for possession of child pornography of 6 to 18 months. That range is still applied by some courts, even after Friesen: see, for example, R. v. Snead, 2021 ONSC 7017, at para. 23 (12 months), and see R. v. Noonan, 2023 ONSC 3351, (12 months, concurrent to 3 years for child luring); R. v. Branco, 2019 ONSC 3591, (179 days). Another line of authority is endorsing a sentence range of six months to “about” three years, but even these cases tend to impose sentences in the lower range: R. v. John, 2017 ONSC 810, 376 C.R.R. (2d) 91, aff’d 2018 ONCA 702, 142 OR (3d) 670 (10 months), and see R. v. Beierle, 2017 ONSC 5377 (12-month global sentence).

[95] Cases in this court vary. Some pre- Friesen cases tend towards the lower of those ranges [6]: see R. v. Schulz, 2018 ONCA 598, 142 O.R. (3d) 128 (45 days intermittent); R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670 (10 months). In other cases, longer sentences are imposed. In R. v. McCaw, 2023 ONCA 8, 165 O.R. (3d) 179, a sentence of three years was upheld for a small collection of child pornography, but Mr. McCaw had two prior convictions for the same offence, and in Inksetter, a three year concurrent sentence of imprisonment was imposed for possession of child pornography conviction and three and one-half years imprisonment concurrent was added on an additional conviction of the more aggravated offence of “making available”.

[96] Sentences in the Ontario Court of Justice, where summary prosecutions are more common, only rarely exceed one-year imprisonment: see, for example, R. v. A.M., 2023 ONCJ 181 (nine months); R. v. Bellas-Menzie, 2022 ONCJ 444 (six months); R. v. Scattolin, 2019 ONCJ 357 (seven months), R. v. Hems, 2019 ONCJ 779 (two months consecutive to sentence for luring), but see R. v. Kaardal, 2022 ONCJ 441 (400 days for possession of highly intrusive images, aggravated by evidence of distribution).

[97] Conditional sentences for possession of child pornography are not uncommon: see, for example, R. v. Jongsma, 2021 ONSC 796 (one-year conditional) R. v. S.B., 2022 ONCJ 536 (two years less a day conditional); R. v. Prendivoj, 2022 ONCJ 257 (six months conditional); and R. v. Cusick, 2022 ONCJ 590 (six months conditional).

[98] The maximum sentence for an indictable prosecution for the offence of possession of child pornography was doubled from five years imprisonment to 10 years imprisonment in 2015: Tougher Penalties for Child Predators Act, S.C. 2015, c. 23. The range for this offence must also increase.

(5) A Fit Sentence for Possession of Child Pornography

[99] In my view, even after the Friesen factors are considered, a sentence of one year consecutive is the appropriate sentence for the offence of child pornography committed by the appellant, which, as I indicated, should trend towards the lower range of sentence for this offence. In the circumstances, a one-year sentence reflects an increase in the kind of sentence likely to have been imposed for this offence prior to Friesen.

The Principle of Totality and the Sentences Imposed

[100] There is one further consideration. The appellant was being sentenced by the trial judge consecutively of four offences. The principle of totality “requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences to ensure that the cumulative sentence rendered does not exceed the overall culpability of the offender”: R. v. M.(C.A.), 1996 SCC 230, [1996] 1 S.C.R. 500, at para. 42. This principle must be observed in appropriate cases to preserve the principle of proportionality and to reflect the fact that where sentences are combined, the functional value in imposing the sentences can generally be achieved without multiplying fit sentences: R. v. Johnson, 2012 ONCA 339, 285 C.C.C. (3d) 120, at paras. 15-25. Simply put, an offender is not typically going to need to fully serve each component for the principles and goals of sentencing to be satisfied. In my view, the principle of totality requires an adjustment in the global sentence imposed on the child luring Information. To accomplish this, I would impose a sentence of 42 months (three-years and six-months) of imprisonment for the child luring conviction, and a sentence of one-year consecutive imprisonment on the possession of child pornography offence, for a global sentence on the child luring Information of four-year and six-months incarceration.

[101] In assessing whether the cumulative sentence imposed on both the sexual interference Information and the child luring Information exceeds the overall culpability of the offender, and adequately fulfills sentencing objectives, it is important to accept that the degree of culpability for the sexual interference charges must be confined by the Crown’s summary election and the joint position it took. Regardless of one’s own views on the appellant’s level of culpability for the sexual interference charges, the application of the principle of totality cannot be determined as though no joint position or summary election was ever expressed. Hence the global sentence on all charges of five-years and six-months.

[102] Finally, the trial judge provided Downes credit of six months, a determination which has not been challenged or questioned on appeal and I would defer to it. I would apply that credit to the sexual interference charges, as the trial judge did.

[103] I would therefore impose a net sentence of five years, broken down, as described below.

CONCLUSION

[104] I would grant the appellant leave to appeal his sentence and allow the sentence appeal.

[105] I would not interfere with the sentence imposed on the sexual interference Information (Information # 002095) of three months consecutive for Count 1 (after six months of Downes credit, on the sexual interference contrary to s. 151 of the Criminal Code, committed against the appellant’s daughter) and three months consecutive on Count 4 (sexual interference contrary to s. 151 of the Criminal Code, committed against the appellant’s stepson), to be served consecutively to the sentences I would impose on the child luring Information (Information # 001798).

[106] I would set aside the sentences imposed by the trial judge on the child luring Information (Information # 001798), and substitute sentences of 42 months consecutive on Count 1 (child luring involving both victims, contrary to s. 172.1(1) (b) of the Criminal Code), and 12 months consecutive on Count 5 (possession of child pornography, contrary to s. 163.1(4) of the Criminal Code.)

[107] The ancillary orders made by the trial judge were not subject to appeal. I would not alter them.

“David M. Paciocco J.A.”

“I agree. S. Coroza J.A.”

Huscroft J.A. (dissenting in part):

[108] I agree that the sentencing judge erred in relying on the circumstances of the sexual interference offences as aggravating factors in determining the appropriate sentence on the child luring and possession of child pornography counts, and that this error affected the sentence. However, I do not endorse Paciocco J.A.’s broader sentencing discussion, nor do I agree with the sentence that he would impose.

[109] Parliament has increased the maximum sentences for both child luring and possession of child pornography and emphasized that denunciation and deterrence must be prioritized. Although Paciocco J.A. acknowledges the Supreme Court’s direction in Friesen that sentences for sexual offences against children should increase, with respect, the sentence he would impose fails to give effect to that direction.

[110] As my colleague notes, the maximum sentence for an indictable prosecution for the offence of possession of child pornography was doubled from five years imprisonment to 10 years’ imprisonment in 2015: Tougher Penalties for Child Predators Act, S.C. 2015, c. 23. I do not accept that the possession of child pornography offence in this case invites a sentence at the lower end of the range, as he concludes. The appellant possessed a large collection of child pornography – 500 images and 213 videos totalling approximately 18 hours. The agreed statement of fact does not indicate how graphic the collection was but does indicate that the appellant shared 20 images and videos with another online user, including 6 images of the children he lured, in an attempt to obtain additional child pornography. A one-year sentence is simply inadequate in these circumstances.

[111] In my view, a global sentence for the luring and possession of child pornography offences of 6 years is required. I would apportion the sentence as follows:

1. 4 years’ imprisonment on the child luring charge, which involved two victims, and
2. 2 years’ imprisonment consecutive for possession of child pornography.

[112] The one-year sentence for the sexual interference convictions is based on a joint submission that must be respected. It should be added to the global sentence, to run consecutively, making a total sentence of 7 years. I would respect the sentencing judge’s decision to provide six months of Downes credit, resulting in a net sentence of imprisonment remaining to be imposed for all offences of 6.5 years.

Released: November 3, 2023 “G.H.” “Grant Huscroft J.A.”

Footnotes

[1] Although only one child luring charge was laid and one conviction entered, because there were two victims, I will refer to offences captured by that charge as the “child luring offences”.

[2] The trial judge misapprehended the Agreed Statement of Fact, which admitted attempted digital penetration, not actual penetration. This misapprehension was not featured in the appeal, and I will say no more of it.

[3] The Agreed Statement of Fact admitted sharing the image with only one other user, and although this surely created a risk that the images could be posted on the internet or otherwise further distributed, a factor appropriately to be considered, there was no evidence that the image had in fact been posted. Again, this misapprehension of evidence was not featured in appeal submissions either.

[4] As I will explain, although in isolation the child luring offences would warrant a four-year sentence, and the possession of child pornography offence would attract a one-year consecutive sentence, the principle of totality requires a reduction in the combined length of these sentences, hence the three-years and six-months sentence I would impose for the child luring offences.

[5] I would reduce this global sentence of 4 years (48 months) to a 42 months net sentence to account for the principle of totality, discussed below.

[6] I have not included probationary orders that are not uncommonly combined with sentences of incarceration.