Court File and Parties

Court File No.: Brampton 17-1058 Date: 2018-05-08 Ontario Court of Justice

Between: Her Majesty the Queen

- and -

Andrew Barnes

Before: Justice James Stribopoulos

Heard on: October 27, 2017, January 17, and April 6, 2018

Reasons for Sentence Released: May 8, 2018

Counsel:

• M. Morris, for the Crown
• H. Derusha, for Mr. Barnes

Introduction

[1] Over the last quarter century, nearly every facet of modern life has been affected by the Internet. Today, the Internet has become the principal means by which we access news, music, movies, and other forms of entertainment, engage in all aspects of commerce and conduct research. The Internet has also quickly developed into one of our primary means of communication.

[2] Some degree of anonymity is a feature of much Internet activity. In fact, the anonymity of online activities can sometimes be essential to an individual's personal growth and the flourishing of an open and democratic society. Consequently, the Supreme Court of Canada has acknowledged that, depending on the totality of the circumstances, anonymity in a person's online activities may be subject to a reasonable expectation of privacy and therefore enjoy constitutional protection under section 8 of the Charter.

[3] That said, Internet anonymity also has its dark side. Like the law-abiding, those with nefarious purposes have also flocked to the Internet. Children, too, are voracious Internet users. The vulnerability of children when they go online is obvious. The Internet, especially social media, provides an all too easy point of contact between children, the most vulnerable members of our society, and those bent on exploiting them as objects of their sexual gratification.

[4] The Criminal Code now includes provisions meant to protect children when they venture online. Through his online activities, Mr. Barnes ran afoul of these legislated protections. On a formal level, he pled guilty to a single charge, making sexually explicit material available to a person he believed to be under the age of sixteen years, contrary to section 171.1(1)(b) of the Criminal Code. As part of the facts in support of his guilty plea, however, Mr. Barnes also acknowledged responsibility for the offences of child luring (section 172.1(1)(b)) and possession of child pornography (section 163.1(4)). The parties agree that these additional offences are an aggravating consideration to be taken into account in sentencing Mr. Barnes.

[5] The cloak of anonymity easily worn on the Internet means that things online are not always as they seem. Although Mr. Barnes undoubtedly believed that his online communications were with two adolescent girls, thankfully, throughout, he was corresponding with an undercover police officer pretending to be two different children.

[6] These are my reasons for sentencing Mr. Barnes. In the course of these reasons, I must address two principal issues about which the parties disagree. First, in light of all of the circumstances, the appropriate sentence for Mr. Barnes for his offence. And, second, whether or not in this case the Court has the authority to make an order under section 161 of the Criminal Code. The disagreement regarding the second issue deserves some brief introduction.

[7] The purpose of a section 161 order is to safeguard children from sexual offenders who are potential recidivists. These orders can be used to prohibit an offender from coming within a specified distance of places associated with a victim. Just as importantly, they may also limit an offender's ability to engage in a variety of otherwise lawful and everyday activities that could result in contact with children either in person or on the Internet. These orders are only available under subsection 161(1) if an offender is convicted or conditionally discharged of a sexual offence listed in subsection (1.1.), "in respect of a person who is under the age of 16 years." The offence committed by Mr. Barnes, making sexually explicit material available to a child, is listed in subsection (1.1). The parties differ on the availability of a section 161 order, given that in committing his offence Mr. Barnes was throughout communicating with an undercover police officer posing as a child rather than an actual person "under the age of 16 years."

[8] These reasons will proceed in five parts. The facts surrounding the commission of the offence are first detailed. The second part explains Mr. Barnes' circumstances. Third, the parties' respective positions are outlined. After that, an analysis of the appropriate sentence in this case will be addressed. The final part will consider whether or not in the circumstances a section 161 order is available.

Circumstances of the Offence

[9] The Ontario Provincial Police, as part of their mandate to investigate the exploitation of children on the Internet, conduct online undercover operations. To that end, the police employ proactive techniques, creating profiles by which a police officer poses as a child on different types of online platforms, for example on social media or on dating websites. These profiles include many of the trappings of an authentic identity, for example, a username, a stated age, and even a picture.

[10] On May 11, 2016, the police created a profile on an online dating site under the username of "Jessika". Beyond a username, the profile included a photograph (purportedly of "Jessika") and also represented that she was just fifteen years old. The very next day, Mr. Barnes, who was fifty-four years old at the time, messaged "Jessika" to ask if she would "care to chat with an older man." His username was "Andy 54," and his profile included a photo of himself. A police officer, posing as "Jessika", responded.

[11] Over nearly a two-week period, Mr. Barnes repeatedly communicated with "Jessika" over the Internet. During these exchanges, he consistently directed the discussion towards sexual topics. He did so, despite "Jessika" maintaining throughout, as noted on "her" profile, that she was only just fifteen years old. The messages from "Jessika", both in form and substance, were in keeping with someone of her stated age. At some point, the communications moved from the online dating site to a text application. On at least a few occasions Mr. Barnes also encouraged "Jessika" to download Skype so that they could engage in video chats. Understandably, the undercover police officer who was posing as "Jessika" never accepted that invitation.

[12] At various points while they were communicating, Mr. Barnes sent "Jessika" some photos of his erect penis. After he sent one such photo, Mr. Barnes asked "Jessika" if she had shown the photograph to any of her friends and, when she indicated that she had, Mr. Barnes also began to express a sexual interest in that "friend" (who, he was told, was just fourteen years old). Eventually, Mr. Barnes participated in a "group" chat with "Jessika" and her "friend", whose online profile also indicated that "she" was just fourteen years old. Of course, that profile, like the first, was created and controlled by the police.

[13] During these various communications, Mr. Barnes made no secret of his intentions. As noted, during these online exchanges Mr. Barnes repeatedly raised the topic of sex. He also inquired about the physical characteristics of the "girls," the extent of their sexual experience, and their interest in a variety of sexual acts. At one point, Mr. Barnes candidly acknowledged that "I want a girl 15". This was more than just talk. On many occasions, Mr. Barnes also expressed a strong interest in meeting "Jessika", along with her "friend", for sexual purposes. As he told "Jessika", at one point, "I want to meet bad."

[14] Ultimately, Mr. Barnes and "Jessika" agreed to meet on May 24, 2016. Mr. Barnes was to travel to Barrie on that date, where he understood "Jessika" to live, from Brampton, where he lives and works. Although the police were waiting for Mr. Barnes in Barrie at the time and location agreed on, with the intention of arresting him, he did not attend the scheduled meeting. Afterwards, he explained to "Jessika" that: "I was too tired."

[15] At some point during the online communications, Mr. Barnes mentioned that he had previously communicated with an eleven-year-old girl on Skype. Given their concern that an actual child might be in jeopardy, rather than attempting to schedule a further meeting, the police decided to end their undercover operation and arrest Mr. Barnes. On May 25, 2016, the police attended Mr. Barnes' home in Brampton, with a warrant to search his residence. Mr. Barnes was located asleep in his bed and arrested by police.

[16] During the execution of the warrant, police seized a cellular telephone. When searched, the phone contained the chats with "Jessika," as well as those with her "friend." The police also seized a laptop computer, two portable data storage devices, and two CDs. An analysis of these various digital devices revealed the presence of about ten images of child pornography. Some of the photos were duplicates. The subject is a pubescent girl, clothed only in underwear; the girl's breasts and groin are the focus of the images. The sexualized nature of the images is readily apparent.

[17] Police interviewed Mr. Barnes following his arrest. In a statement, that was both video and audio recorded, after being cautioned by police, Mr. Barnes admitted that he had previously communicated with an eleven-year-old girl on Skype. He was only able to provide the police with the girl's first name. The precise nature of these communications did not form part of the record at the sentencing hearing.

Circumstances of the Offender

[18] Mr. Barnes is fifty-six years of age. He does not have a criminal record; he is a first offender.

[19] Mr. Barnes was born and raised in Trout River, Newfoundland. He is the second youngest of seven siblings. His mother passed away when he was just five years old, and his father raised him. Although the family was of modest means, his father, who worked as a fisherman and a cook, always managed to provide the necessities for the family. Importantly, Mr. Barnes had a positive relationship with his father and his siblings. He reports growing up in an environment that was free from either physical or emotional abuse.

[20] Regarding his education, Mr. Barnes struggled academically and left school after grade seven. He started working at the age of 16. In the early eighties, with limited job opportunities in Newfoundland at the time, Mr. Barnes left for Ontario to pursue better employment prospects. He has been gainfully employed ever since.

[21] For the past twenty-two years, Mr. Barnes has been working for the same steel company in Brampton, where he has risen through the ranks and is currently a supervisor on the midnight shift. This work pays well. His employer describes him in unequivocally glowing terms. Mr. Barnes is an extremely conscientious, hardworking and well-respected employee. His employer describes him as an "exemplary employee" and a "valuable asset" to the company. His employer is fully aware of his offences but has nevertheless expressed a willingness to have Mr. Barnes continue with his employment.

[22] Mr. Barnes was previously married but divorced some years ago. He has remained single since then and explained this as his preference. He has two adult children, a daughter and a son. Mr. Barnes is on good terms with his ex-wife, and both of his children. He currently shares a house with his children that they rent together. He lives in the basement with his son, and his son's girlfriend, while his daughter, her common-law partner, and their two children, live upstairs. Mr. Barnes' ex-wife, his sister-in-law, and his daughter, all describe him as a loving and supportive father and grandfather. Each expressed surprise at his arrest and charges. His sister-in-law noted that her daughter is fifteen years old and that she has never had any concerns regarding Mr. Barnes' behaviour towards her daughter.

[23] Since his arrest, Mr. Barnes has undergone twenty hours of sex offender counselling at the Manasa Clinic. At the sentencing hearing, the defence filed a report prepared in October 2016 by Dr. Monik Kalia, a registered forensic and clinical psychologist. In the introduction to his report Dr. Kalia noted that as a forensic psychologist he performs risk assessments on sex offenders. Unfortunately, the report prepared concerning Mr. Barnes does not address his risk of reoffending.

[24] Nevertheless, as part of counselling, Dr. Kalia administered a battery of psychological tests on Mr. Barnes. The results of that testing are set out in Dr. Kalia's report. In his report, Dr. Kalia concludes that the "findings of the psychological testing do not indicate the presence of any major mental illness or personality disorder." Concerning Mr. Barnes progress in therapy, Dr. Kalia stated the following:

The sessions proceeded smoothly with a healthy rapport being developed fairly quickly. With respect to the acceptance of responsibility for offending, Mr. Barnes willingly discussed the details of the index offense and did not deny his responsibility. He acknowledged teenaged females arouse him, but emphasized that his erotic interest was primarily directed to adult females throughout his life.

Based on the nature of offense and his admission of his arousal towards teenage females, it is my opinion that he seems to have [a] problem with hebephilia. Hebephilia is a specific attraction to pubescent children. His hebephilic arousal can be considered to be non-exclusive as he has shown capacity to establish sexual relationships with adult females. Based upon his disclosure of his sexual interests, this problem was highlighted and on being presented with this diagnosis he was accepting of the underlying problem and at no time justified his actions.

Mr. Barnes was able to clearly understand and articulate that his behavior was indeed inappropriate. This is a significant step towards rehabilitation. He seemed to gain benefit from the understanding of victim empathy that explored the relationship between the internet luring, sexual victimization and exploitation of minors. Specifically he has recognized that he used internet pornography and chatting with minors to assuage feelings of loneliness.

Mr. Barnes approached counseling in the forthright manner and was open to receive feedback from other members. He was an active participant in the therapeutic process and completed in-between home assignments. His better understanding of the impact of cognitive distortions has opened the door to manage his emotional and sexual needs in future. He is clearly not an antisocial individual and is expected to use the knowledge and skills acquired in counseling to not make any unhealthy choices. He has done well in therapy and should continue additional counseling to consolidate gains made so far.

[25] Regarding his offences, Mr. Barnes told Dr. Kalia that: "I had no intention to meet them in real as I found the internet chatting very exciting." When asked by Dr. Kalia to explain why his behaviour was illegal, Mr. Barnes responded: "they were underage and [it] could affect them in future." Similarly, Mr. Barnes maintained to the author of the Pre-Sentence Report that he never planned to meet with anyone he chatted with online.

[26] Finally, it deserves mention that Mr. Barnes appears to be genuinely remorseful for his actions. This is apparent from Dr. Kalia's report, his comments to the author of the Pre-Sentence Report and, finally, his remarks to the Court. Despite Mr. Barnes' apparent remorse, it is noteworthy that to the author of the Pre-Sentence Report he indicated that he is no longer attracted to teenage girls.

Positions of the Parties

[27] The parties agree on a great deal regarding the sentencing of Mr. Barnes. For example, the parties agree that a probation order is warranted, mainly to ensure that Mr. Barnes continues to take counselling. They agree, as well, that a DNA order is mandatory, as making sexually explicit material available to a child is a primary designated offence. Further, given the offence, there is no issue that the Court is required to make an order requiring Mr. Barnes to comply with the Sex Offender Information Registration Act for a period of ten years. And, lastly, there is no dispute that the various digital devices used in committing the offences should be forfeit to the Crown. There are, however, two significant points of disagreement between the parties concerning sentencing.

[28] First, the parties differ on the length of the custodial sentence that is appropriate in all of the circumstances of this case. Given that the Crown elected to proceed summarily, Mr. Barnes is subject to a minimum sentence of ninety-days imprisonment for the offence of making sexually explicit material available to a child (and a maximum of not more than two years imprisonment). The Crown agreed to permit Mr. Barnes to acknowledge responsibility for child luring (s 172.1(1)(b)) and possession of child pornography (s 163.1(4)), while not pleading guilty to these offences. By doing so, the Crown has allowed him to avoid the reach of the mandatory minimum sentences of six-months imprisonment that would have applied to each of these offences upon conviction.

[29] Defence counsel, Mr. Derusha, urges the Court to impose the minimum sentence of ninety-days imprisonment for the offence of making sexually explicit material available to a child. He further submits that Mr. Barnes be allowed to serve his sentence on an intermittent basis. This would enable Mr. Barnes to continue in his current position of employment. Defence counsel makes two main points in support of this position.

[30] He begins by acknowledging that Mr. Barnes' criminal wrongdoing was serious. That said, he argues that two factors place Mr. Barnes' offence, relatively speaking, at the lower end of the spectrum in terms of gravity. First, that Mr. Barnes was throughout dealing with an undercover police officer; an actual child was never truly in jeopardy. And, second, that Mr. Barnes did not ultimately attend the scheduled meeting, suggesting that he was less than fully committed to his insidious plan.

[31] And, further, defence counsel emphasizes some significant mitigating factors relating to Mr. Barnes. He is a first offender. Until now, he has led an entirely pro-social life, both in terms of his employment, and his personal history. He pled guilty, and he appears genuinely remorseful for his actions. And, finally, since his arrest, he has taken a significant step towards his rehabilitation by participating in sex offender therapy and has therefore already addressed the causes of his behaviour.

[32] In contrast, for the Crown, Mr. Morris argues in favour of a total sentence of one-year imprisonment, less credit for pre-trial custody. In the Crown's submission, the preeminent sentencing objectives for this offence are denunciation, deterrence, both general and specific, and separation of the offender from society. Mr. Morris submits that there is nothing exceptional about the mitigating factors in this case, which are surprisingly common amongst offenders who commit crimes of this nature (i.e. the absence of a criminal record, otherwise pro-social, taking counselling, remorseful, etc.).

[33] At the same time, the Crown submits that there are some significant aggravating features present. First, Mr. Barnes acted over an extended period, almost two-weeks. He did so not just with one potential victim but two, readily enlisting a second child (so he believed) when presented with the opportunity. Further, Mr. Barnes did not send a single photo of his erect penis but repeatedly sent several photos of that nature to who he believed to be children. And, in these proceedings, Mr. Barnes also acknowledged responsibility for two additional offences, luring a child and possession of child pornography. The Crown also submits that the hebephilia diagnosis is concerning, and is in tension with Mr. Barnes' claim that he is no longer attracted to pubescent girls. This suggests that the attraction continues, as well as a troubling lack of insight.

[34] Finally, the Crown submits that Mr. Barnes' failure to attend the scheduled meeting does not qualify as a mitigating factor. Instead, this merely represents the absence of what would have been an aggravating factor; it is not something that lessens Mr. Barnes' culpability for his actions.

[35] Given all the circumstances, in light of the operative sentencing objectives, the Crown submits that this is not a situation where the minimum sentence would be appropriate. According to the Crown, a ninety-day sentence of imprisonment would fail to adequately address the various sentencing objectives that are operative in this case. The Crown argues that such a sentence would be especially inadequate given the need to deter Mr. Barnes, remembering the hebephilia diagnosis. That diagnosis and the absence of a favourable risk assessment, the Crown submits, counsels towards a lengthier custodial sentence to discourage Mr. Barnes from engaging in similar behaviour in future.

[36] As noted above, the parties also disagree regarding the availability of an order under section 161 of the Criminal Code. They urge differing interpretations of section 161(1), which restricts such orders to situations where an offender commits an offence listed in subsection (1.1.), including the offence committed by Mr. Barnes, "in respect of a person who is under the age of 16 years" (161(1)). The point of disagreement is whether or not such an order is available where an offender's interlocutor is an undercover police officer posing as a person under the age of sixteen years rather than an actual child.

[37] Defence counsel's argument emphasizes the plain meaning of the language found in section 161(1). He submits that an undercover police officer pretending to be a child is not "a person who is under the age of 16 years". On this reading, a prohibition order is only available when an offender commits a listed offence involving an actual person under the age of 16 years. Defence counsel argues that such orders are simply unavailable in cases involving undercover police sting operations.

[38] In contrast, the Crown urges that section 161(1) be read purposively rather than literally. It submits that under the now controlling approach to statutory interpretation, plain meaning is no longer decisive as an interpretative consideration. Instead, context is equally if not more important. For that, one must also consider the scheme of the section, the object of the section and the intention of Parliament. The Crown notes that the Supreme Court of Canada has already identified the purpose of section 161 as being to protect children from sexual violence perpetrated by recidivists. The Crown points to that purpose as lighting the way when deciding the proper interpretation of the words at issue in section 161(1).

[39] If the purpose of section 161 of the Code is to provide judges with a tool to better protect children from sexual violence perpetrated by recidivists, then it makes good sense to read the language – "a person who is under the age of 16 years" – as encompassing situations where an offender commits one of the enumerated offences in relation to a person who is, or who the accused believes is, under the age of 16 years. The Crown submits that such a reading is sensible because it will better protect children by ensuring symmetry between section 161(1) and 161(1.1).

[40] Beyond principles of statutory interpretation, the Crown supports its proposed reading of section 161(1) by relying on precedent. In R. v. M.K., the offender pled guilty to possession of child pornography. The offending material consisted of cartoon depictions of toddlers engaged in vile sexual acts. As a result, the circumstances did not involve an actual "person … under the age of 16 years". Nevertheless, the sentencing judge imposed a section 161 order. On appeal, the New Brunswick Court of Appeal upheld that order. In doing so, it gave short shrift to an argument prefaced on literal meaning, like that advanced by Mr. Barnes in this case. The Court's analysis of the issue was brief, confined to a single paragraph of its decision. It explained its approach by noting that the appellant did not lay "the foundation for an interpretative argument that warrants further consideration."

[41] With the positions of the parties briefly sketched out, the next part of these reasons addresses the appropriate sentence for Mr. Barnes. Following that, the question of whether or not a section 161 order is available in this case is taken up.

The Appropriate Sentence

[42] The "fundamental purpose" of sentencing, the Criminal Code instructs, "is to protect society and to contribute … to respect for the law and the maintenance of a just, peaceful and safe society." That purpose is realized through the imposition of "just sanctions" that serve one or more of the traditional sentencing objectives. These objectives include general and specific deterrence, separation of offenders, rehabilitation, reparation to victims, and promoting a sense of responsibility in offenders and an acknowledgment of the harm done to victims and the community.

[43] The Criminal Code sets out a number of principles meant to guide judges in the imposition of sentence. The "fundamental principle" is that the sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." Proportionality requires that a sentence be tailored to the circumstances of the offence and the offender.

[44] In assessing the "gravity of the offence," the sentencing judge must take into account the seriousness of the offence, which has two aspects. In a generic sense, any minimum or maximum punishments prescribed by Parliament reflect upon the seriousness of the offence. More specifically, the evaluation turns on the circumstances relating to the offender's commission of the crime, with the focus being any features that either increase or decrease the harm, or the risk of harm, to the victim(s) or to the community.

[45] The assessment of an offender's "degree of responsibility" refers to the offender's culpability. The sentencing judge must consider the offender's moral blameworthiness in perpetrating the crime. This is informed, in part, by the actions, mindset and motivation of the offender in committing the offence. Importantly, it also takes into account the offender's background and circumstances. As a result, assessing an offender's degree of responsibility requires that a sentencing judge consider both what the offender did and who they are (with regard to their life circumstances).

[46] In determining the appropriate sentence, a sentencing judge must consider any relevant aggravating or mitigating circumstances relating to the offence or the offender. Taking proper account of the aggravating and mitigating factors is essential to evaluating the gravity of the offence and the degree of responsibility of the offender in its commission. It is by giving due regard to these factors that a sentencing judge ensures that the sentence imposed is proportionate.

[47] Beyond the general purpose and principles of sentencing, determining the appropriate sentence in this case also requires reference to the guidance provided by the Court of Appeal on the sentencing of offenders who engage in predatory behaviour online aimed at the sexual exploitation of children. The Court has made clear that the preeminent goal in sentencing for such crimes is safeguarding children, who are indefatigable Internet users, from those predators who would abuse this technology to lure them into situations where they can be sexually exploited and abused. To that end, the Court instructed, long before Parliament attached mandatory minimum sentences to these offences, that the sentencing objectives of denunciation and deterrence would ordinarily demand a custodial sentence for those who commit such crimes.

[48] An offender's rehabilitation is always an important objective of sentencing. However, denunciation, deterrence, and separation from society, are the predominant objectives when sentencing offenders who would use the Internet to exploit children for the offender's sexual gratification.

[49] Given this, in Jarvis, which like this case involved an offender who engaged in online communications with an undercover police officer posing as an adolescent girl, Rosenberg J., writing for the Court, made the following observation:

The decisions of trial courts that were placed before us suggest that the range of sentence for this offence generally lies between twelve months and two years. Circumstances such as possession of child pornography or a record for other child sexual offences will require a sentence at the upper end of this range. Obviously, if the offender has previously committed the same offence, an even longer sentence may be required.

[50] The Court of Appeal returned to the appropriate sentencing range for offenders who use the Internet to prey upon children in Woodward. In that case, the offender appealed against both his convictions and sentence. Unlike Mr. Jarvis, or Mr. Barnes, Mr. Woodward did not commit his offences by communicating with an undercover police officer posing as a child. Rather, he exchanged messages with an actual twelve-year-old girl. He offered the girl money in exchange for sex. He ultimately met with the victim and engaged in a variety of sexual acts with her, including sexual intercourse. Therefore, he was also convicted and sentenced for sexual interference, invitation to sexual touching, attempting to obtain, for consideration, the sexual services of a person under the age of eighteen, and sexual assault. Mr. Woodward appealed against a global sentence of six-and-one-half years imprisonment, which included an eighteen-month consecutive sentence for the offence of luring a child for a sexual purpose.

[51] In dismissing the sentence appeal in Woodward, writing for the Court, Justice Moldaver suggested that Jarvis did not intend to establish a sentencing range for the luring offence, writing:

Even if Jarvis did purport to set a range of 12 to 24 months for the offence of luring, that range needs to be revised given the 2007 amendment in which Parliament doubled the maximum punishment from 5 years to 10 years. Moreover, if it is shown through the introduction of properly-tendered evidence that the offence of luring has become a pervasive social problem, I believe that much stiffer sentences, in the 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.

[52] Since the decision in Woodward, Parliament has twice amended the penalties for the offence of child luring, increasing both the maximum and minimum punishments for that offence. Parliament also amended the Criminal Code to create the offence for which Mr. Barnes pled guilty, making sexually explicit material available to a child, later increasing the penalties for that crime. Since Woodward and the legislative amendments, the Court of Appeal has recently returned to the topic of sentencing for offences of this nature.

[53] In R. v. Morrison, the offender communicated with an undercover police officer who was posing as a fourteen-year-old girl in an online chat room. During their communications, Mr. Morrison suggested that the "girl" should touch herself. At his trial, he testified that he thought he was participating in sexual role-play with an adult female, as the website required participants to be eighteen years of age or older. The trial judge ultimately had a reasonable doubt as to whether or not Mr. Morrison believed the person he was communicating with was a child. Nevertheless, a conviction resulted due to Mr. Morrison's failure to take reasonable steps to ascertain the age of his interlocutor. It is noteworthy that Mr. Morrison never arranged a meeting with the "girl," and unilaterally ended their communications.

[54] In Morrison, the Crown elected to proceed by indictment. As a result, a minimum sentence of one-year imprisonment was applicable. On the facts, however, the sentencing judge concluded that imposing the mandatory minimum would result in a grossly disproportionate sentence and violate Mr. Morrison's section 12 Charter right not to be subject to cruel and unusual treatment or punishment. In the result, the sentencing judge imposed a sentence equivalent to four months imprisonment, followed by a period of probation.

[55] The Court of Appeal agreed that the mandatory minimum one-year sentence was inconsistent with section 12 of the Charter. Therefore, it declared it of no force or effect. In the course of its reasons dealing with the constitutional issue, the Court provided guidance on how to navigate its earlier decisions on the sentencing of offenders who target children online for their own sexual gratification. Pardu J.A. writes:

128 What emerges from this brief review of the case law on the range is that the parameters established in Jarvis are flexible and dependent on the particular facts of the case. The range of seriousness of offences committed under s. 172.1 is evidently very wide.

129 As with all sentencing decisions, much will depend on the specific facts of the case and the circumstances of the offender and the nature of the offence at issue. Here, the trial judge considered these facts comprehensively and correctly sought the guidance set out in Woodward. I can discern no error in principle that would undermine the trial judge's assessment that a sentence of four months' imprisonment was appropriate for this offence and this offender: see R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 44; and R. v. C.K., 2015 ONCA 747, 342 O.A.C. 87, at para. 51.

130 I conclude that this supplies an accurate benchmark against which to measure whether the mandatory minimum in s. 172.1(2) of the Code is grossly disproportionate in relation to Morrison in applying the s. 12 Charter framework.

131 In my view, the disparity between the one-year mandatory minimum and what would otherwise be a fit and appropriate sentence for Morrison is sufficient to meet the high bar of gross disproportionality under s. 12. Morrison's blameworthiness is diminished in that it cannot be said that he believed his interlocutor was underage when engaging in sexualized conversations. He is culpable only for having acted unreasonably in failing to take steps to ensure that the other person was not underage. Communication online with an adult for a sexual purpose is not in itself a crime. Although his communications persisted for some two months, it cannot be said that he knowingly embarked on a systematic process of grooming a young person for sexual activity or to facilitate commission of a sexual assault that would merit a substantial sentence of imprisonment well above the four months he received. In this sense, the facts of this case are distinguishable from those in Woodward. There was never any face-to-face encounter and, as the trial judge found significant, there was no indication Morrison intended to commit a physical sexual offence in relation to an underage child. He eventually ended his communications unilaterally. He is in his late sixties, is a productive member of society and has no criminal record. The child luring offence must be taken seriously given the potential harm it could result in for the most vulnerable members of our society, but in this case no actual harm resulted from Morrison's transgression.

132 On the other hand, an offender who knowingly embarks on a systematic process of grooming a young person for sexual activity or to facilitate commission of a sexual assault would merit a substantial sentence of imprisonment, in some cases, well above the mandatory minimum.

[56] There are some aggravating circumstances in this case that distinguish it from Morrison. To begin, it is apparent that Mr. Barnes believed "Jessika" was only fifteen years old, and that her "friend" was just fourteen. Unlike Morrison, this is not a situation in which liability rests on a failure to take reasonable steps. Rather, this is a case involving subjective belief, a more culpable state of mind. Over nearly a two-week period Mr. Barnes repeatedly sent explicit images and engaged in sexualized communications with who he believed were two girls just fifteen and fourteen years-old.

[57] Second, although Mr. Barnes is only being sentenced for a single offence (making sexually explicit material available to a child), unlike Mr. Morrison, he also acknowledged responsibility for two further offences, child luring (section 172.1(1)(b)) and possession of child pornography (section 163.1(4)). These are separate and serious crimes. The luring activities were especially grave. The nature, extent and duration of the communications clearly betray that Mr. Barnes' purpose was to arrange a sexual encounter with "Jessika" and her "friend." As a result, the circumstances in this case are far worse than in Morrison.

[58] That said, it does deserve mention that the child pornography Mr. Barnes admitted to possessing thankfully consisted of only a small number of still images, involving a single adolescent girl, posing alone in a sexually provocative manner. In that regard, some of the features that are aggravating factors on sentencing an offender for possession of child pornography, for example, a large collection, younger children, and explicit sexual activity, are absent in this case. Nevertheless, the material clearly qualifies as "child pornography," and its possession is undoubtedly an aggravating consideration in deciding upon the appropriate sentence for Mr. Barnes for the offence for which he pled guilty.

[59] Third, when assessing Mr. Barnes' culpability, it is noteworthy that his offence continued over a protracted period. There were regular communications and several images sent over a two-week period. The situation is far worse than that of an offender who momentarily succumbs to dark urges because of a brief lack of restraint. Mr. Barnes' offending behaviour was the result of a deliberate and sustained course of conduct, undoubtedly an aggravating factor.

[60] All that said, there are a number of mitigating factors in this case. Importantly, Mr. Barnes has no prior criminal record; he is a first offender.

[61] Second, Mr. Barnes is fifty-six years old, and before engaging in the conduct for which he is being sentenced he led an entirely prosocial life. He has enjoyed gainful employment since leaving school at age sixteen. Mr. Barnes is an extremely hard-working person. Over the past twenty-two years, he has been with the same company, where his contributions are valued, and he is considered to be an excellent employee. On a more personal level, those who know him best describe him as a loving and supportive father and grandfather.

[62] Third, there is the fact that Mr. Barnes pled guilty. Although by no measure did the guilty plea come early in the process, the delay is understandable. It was due to Mr. Barnes' efforts to complete sex offender therapy before sentencing, as well the reality that it took counsel a fair amount of time to negotiate a resolution to a single charge in a case where the Information initially charged over fifteen counts. The guilty plea is therefore deserving of credit because it has spared the administration of justice the time and expense of a trial.

[63] Fourth, the guilty plea is also some evidence that Mr. Barnes is remorseful for his wrongdoing. Beyond the plea, however, it is apparent from the various comments he made to the author of the Pre-Sentence Report, to Dr. Kalia, and to the Court, that Mr. Barnes is indeed genuinely remorseful for his actions. Demonstrated remorse counts as a mitigating factor in an offender's favour.

[64] Fifth, it is also mitigating that, since being arrested and charged, Mr. Barnes has undertaken a substantial amount of sex-offender therapy. He reportedly responded well to that treatment. He now appreciates the wrongfulness of his behaviour and the potential impact of his actions. Through therapy, he has also reportedly acquired some of the knowledge and skills necessary to avoid reoffending. All of that said, Mr. Barnes' claim to the author of the Pre-Sentence Report that he is no longer attracted to teenage girls is difficult to reconcile with his offences and Dr. Kalia's diagnosis of hebephilia. Given all of the circumstances, absent a forensic risk assessment, it is impossible to draw any firm conclusion regarding the potential for Mr. Barnes to reoffend in future.

[65] A couple of final considerations also deserve brief mention. There is the fact that Mr. Barnes did not attend the meeting scheduled with "Jessika." To be sure, had he done so, this would be an aggravating factor, as it would betray a demonstrated commitment toward realizing his goal of having sex with a child. The fact that Mr. Barnes did not attend the meeting does not, however, rise to the level of a mitigating factor. Stated differently, the absence of a potential aggravating factor does not lessen an offender's culpability for the criminal conduct he engaged in.

[66] For similar reasons, the fact that Mr. Barnes was thankfully dealing with an undercover police officer rather than actual children is also not a mitigating factor. No doubt, the involvement of a real child would have been a significant aggravating factor, as the sentence meted out in Woodward demonstrates. In this case, however, Mr. Barnes' culpability remains high given his undoubted belief that he was interacting with children.

[67] In determining the appropriate sentence, I am mindful of the principles and objectives of sentencing, as the Court of Appeal has explained their application in this context. Against that backdrop, I have also considered the various aggravating and mitigating factors detailed above. Importantly, this includes Mr. Barnes' acknowledgment of responsibility for conduct that would also make out the offences of child luring (section 172.1(1)(b)) and possessing child pornography (section 163.1(4)). In light of all of this, I have concluded that the sentence urged by defence counsel, ninety-days imprisonment, would fall far short of achieving the sentencing objectives that predominant for offences of this nature. Given all of the circumstances, the objectives of denunciation and deterrence (both general and specific) require a total sentence well beyond the intermittent range.

[68] After carefully considering all of the circumstances, in light of the relevant sentencing principles and objectives, I have concluded that a sentence of twelve months imprisonment is the appropriate sentence for Mr. Barnes for the offence of making sexually explicit material available to a child (count 8). (I will address the credit for time spent in pre-trial detention at the end of my reasons.) This period of custody will be followed by a probation order for three years, on conditions set out below. The question as to whether or not a section 161 order is available in this case remains; that issue is taken up in the next part of these reasons.

The Availability of a Section 161 Order

[69] As explained above, the parties disagree on whether or not a section 161 order is available in a case like this, where an offender commits an offence listed in subsection (1.1) by communicating with an undercover police officer rather than an actual child. For ease of reference, it is sensible to reproduce the entirety of section 161, as well as to highlight the language in subsection (1) that is the source of the interpretive dispute. The section provides as follows:

Order of prohibition

161 (1) When an offender is convicted, or is discharged on the conditions prescribed in a probation order under section 730, of an offence referred to in subsection (1.1) in respect of a person who is under the age of 16 years, the court that sentences the offender or directs that the accused be discharged, as the case may be, in addition to any other punishment that may be imposed for that offence or any other condition prescribed in the order of discharge, shall consider making and may make, subject to the conditions or exemptions that the court directs, an order prohibiting the offender from

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

(a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order;

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years;

(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; or

(d) using the Internet or other digital network, unless the offender does so in accordance with conditions set by the court.

Offences

(1.1) The offences for the purpose of subsection (1) are

(a) an offence under section 151, 152, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171, 171.1, 172.1 or 172.2, subsection 173(2), section 271, 272, 273 or 279.011, subsection 279.02(2) or 279.03(2), section 280 or 281 or subsection 286.1(2), 286.2(2) or 286.3(2);

(b) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983;

(c) an offence under subsection 146(1) (sexual intercourse with a female under 14) or section 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(d) an offence under subsection 212(1) (procuring), 212(2) (living on the avails of prostitution of person under 18 years), 212(2.1) (aggravated offence in relation to living on the avails of prostitution of person under 18 years) or 212(4) (prostitution of person under 18 years) of this Act, as it read from time to time before the day on which this paragraph comes into force.

Duration of prohibition

(2) The prohibition may be for life or for any shorter duration that the court considers desirable and, in the case of a prohibition that is not for life, the prohibition begins on the later of

(a) the date on which the order is made; and

(b) where the offender is sentenced to a term of imprisonment, the date on which the offender is released from imprisonment for the offence, including release on parole, mandatory supervision or statutory release.

Court may vary order

(3) A court that makes an order of prohibition or, where the court is for any reason unable to act, another court of equivalent jurisdiction in the same province, may, on application of the offender or the prosecutor, require the offender to appear before it at any time and, after hearing the parties, that court may vary the conditions prescribed in the order if, in the opinion of the court, the variation is desirable because of changed circumstances after the conditions were prescribed.

Offence

(4) Every person who is bound by an order of prohibition and who does not comply with the order is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than four years; or

(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months.

[70] The question squarely presented is the correct interpretation of section 161(1). More precisely, whether it authorizes the issuance of a prohibition order where an offender's interlocutor was an undercover police officer who the offender believed to be "a person who is under the age of 16 years." Or, whether it is only available in those situations where the offender was, in fact, communicating with an actual "person who is under the age of 16 years." The resolution of this issue involves a question of statutory interpretation.

[71] Read in isolation, the plain meaning of the language at the heart of the interpretive dispute between the parties supports a conclusion that a prohibition order is unavailable in situations involving police undercover sting operations. Section 161(1) only confers discretion on a sentencing judge to make a prohibition order if an offender is convicted or conditionally discharged of a listed sexual offence: "in respect of a person who is under the age of 16 years". A person who is sixteen years or older, including an undercover police officer, is not, at least on a literal reading, "a person who is under the age of 16 years." The ordinary meaning of these words is unambiguous. The wording appears to foreclose a prohibition order in a case like this, involving an undercover police sting operation. There is support for ending the interpretive exercise here, at least in some of the Supreme Court of Canada's earlier jurisprudence. For example, in R. v. McIntosh, for a majority of the Court, Lamer C.J.C. explained:

[W]here, by the use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be (Maxwell on the Interpretation of Statutes, supra, at p. 29). The fact that a provision gives rise to absurd results is not, in my opinion, sufficient to declare it ambiguous and then embark upon a broad-ranging interpretive analysis.

[72] Since McIntosh, however, the Supreme Court has moved away from an approach that privileges plain meaning to the exclusion of other interpretive considerations. The now dominant approach to statutory interpretation in Canada finds its origins in Professor Driedger's seminal text on the topic. In that work, he succinctly describes what has come to be known as the "modern approach," as follows:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

[73] Over the last two decades, the Supreme Court of Canada has repeatedly endorsed the modern approach "as the preferred approach to statutory interpretation across a wide range of interpretive settings." This includes the interpretation of provisions found in the Criminal Code. When interpreting federal legislation, like the Code, the modern approach dovetails with the direction found in the Interpretation Act, that every enactment "is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects." It is accordingly necessary to interpret section 161(1) using the modern approach.

[74] The modern approach requires that the words in a statutory provision not be read in isolation. Instead, like all language, the words found in a statute must be understood in context. This is not to say that the plain meaning of the words is unimportant; other interpretive considerations do not merely displace plain meaning. The process of interpretation is far more nuanced than that, as the Supreme Court unanimously explained:

The interpretation of a statutory provision must be made according to a textual, contextual and purposive analysis to find a meaning that is harmonious with the Act as a whole. When the words of a provision are precise and unequivocal, the ordinary meaning of the words play a dominant role in the interpretive process. On the other hand, where the words can support more than one reasonable meaning, the ordinary meaning of the words plays a lesser role. The relative effects of ordinary meaning, context and purpose on the interpretive process may vary, but in all cases the court must seek to read the provisions of an Act as a harmonious whole.

With this guidance on the relationship between plain meaning, legislative context, and purpose, we return to the interpretive question raised in this case.

[75] In short, the plain meaning of the words at issue in subsection 161(1) ("a person who is under the age of 16 years") carry considerable interpretive weight. But these words must also be read in context. This includes the relationship between subsection 161(1) and the other subsections within the same provision (subsections 161(1.1) through (4)). It also requires due regard for Parliament's purpose in enacting the entire section. The correct interpretation is the one that takes each of these considerations into account and settles on a meaning that reads the whole of section 161 harmoniously.

[76] Section 161 creates a comprehensive scheme governing all aspects of prohibition orders. Their availability depends on the combined operation of subsections 161(1) and 161(1.1). Under subsection (1), where an offender is convicted or conditionally discharged of an offence listed in subsection (1.1) "in respect of a person who is under the age of 16 years," the sentencing judge "shall consider making and may make" a prohibition order. Given this, section 161 orders are not automatic, they are discretionary. As the Supreme Court of Canada explained, "s. 161 orders can be imposed only when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the judge is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk."

[77] Subsection 160(1.1) lists the offences eligible for a section 161 order. Most are current offences ((1.1)(a)), but some are historical ((1.1)(b) through (d)). What unifies the offences listed is that if committed "in respect of a person who is under the age of 16 years" the offender has either sexually exploited a child or may pose a risk of doing so. In the latter category, subparagraph (1.1)(a) includes several offences that can be committed without the involvement of an actual child. The child pornography offences (s. 163.1), for example, reach works of the imagination. Some of the other offences listed can result from online interactions with an undercover police officer posing as a child. For example, the list includes the offences of making sexually explicit material available to a child (s. 171.1), luring a child (s. 172.1), agreeing or arranging a sexual offence with a child (s. 172.2), and communicating for the purpose of obtaining sexual services of a person under 18 years (s. 286.1(2)). Although these offences can involve an actual child, each is also defined so that liability can result from interactions with an undercover police officer. For these offences the accused's belief that he is communicating with a child is sufficient.

[78] Section 161(1) empowers a sentencing judge to consider the nature and the degree of risk that an offender poses to children in the community and specifically tailor terms to address that risk. Subparagraphs (1)(a) through (d) permit the judge to include geographic restrictions to guard against an offender having contact with a victim, as well as other limitations meant to restrict an offender's opportunity to be in contact with children either in person or over the Internet. The potential restrictions may be "subject to the conditions or exemptions that the court directs" (161(1)). As the Supreme Court explained, "the content of the order must carefully respond to the offender's specific circumstances."

[79] The remaining subsections within section 161 address the operation and enforcement of such orders. Subsection (2) speaks to the potential duration of section 161 orders, which can be for life or any shorter period the sentencing judge thinks desirable. If the judge does not impose a lifetime order and the sentence includes a period of imprisonment, subsection (2) postpones the effective date of the order until an offender's release from custody. Subsection (3) allows for the variation of a prohibition order due to a change in circumstances. Finally, subsection (4) creates a hybrid offence for breaching a prohibition order and sets out the maximum punishments depending on the Crown's election.

[80] Interpreting the words in section 161(1) – "a person who is under the age of 16 years" – as requiring an actual child would insert an arbitrary distinction into the legislative scheme governing the availability of section 161 orders. Although offenders who commit a listed offence involving an actual child could be subject to a prohibition order, other offenders, who may also pose a significant risk to children, would not be. For example, someone who possessed child pornography in the form of vile animated images, or who committed one of the listed offences by communicating with an undercover police officer who the offender believed to be a child, would be ineligible. Such offenders, subject to any terms of a probation order (which cannot accompany a sentence of more than two-years imprisonment and cannot last longer than three years) would be free in future to engage in a variety of activities that could readily bring them into contact with children. A sentencing judge would be unable to impose restrictions on such an offender that would serve to protect children in the long-term, irrespective of the future threat the offender might pose to children. Drawing such a distinction, which lacks any correlation to either an offender's culpability or the threat they pose to children, would give rise to incoherence within the statutory scheme governing section 161 orders. This counsels against reading the words "a person who is under the age of 16 years" as being limited to an actual person. Such an outcome would also be difficult to justify from a purposive standpoint.

[81] There is no need for a probing examination regarding the purpose of section 161. The Supreme Court of Canada recently undertook just such an inquiry. In K.R.J., in the course of deciding whether or not the 2012 amendments to the section applied retrospectively, and the Charter implications if they did, the Court comprehensively canvassed the legislative history and judicial interpretation of the section. It also carefully considered the design of the provision. In that context, writing for the majority, Karakatsanis J. noted: "the legislative history, judicial interpretation, and design of s. 161 all confirm that the overarching goal of the section is to protect children from sexual violence perpetrated by recidivists." Arbitrarily excluding some offenders from the reach of section 161 orders, individuals who have demonstrated a propensity to sexually exploit children, is completely at odds with the protective purpose of the section.

[82] In summary, understood in isolation, the plain meaning of the words "a person who is under the age of 16 years" suggests an interpretation that does not reach situations where an offender commits an offence listed in subsection (1.1) by communicating with an undercover police officer posing as a child. But plain meaning alone is not decisive. Read as required by the modern approach, in context, remembering the purpose of section 161, supports an interpretation that makes a prohibition order available to a sentencing judge where an offender commits a listed offence believing that their interlocutor was "a person under the age of 16 years." Importantly, this interpretation best achieves a harmonious reading of the whole of section 161. Accordingly, this is the correct interpretation.

[83] This interpretation is also in keeping with existing precedent and practice. With respect to precedent, recall that the New Brunswick Court of Appeal in M.K. expressly rejected the suggestion that the words in section 161 – "a person under the age of 16 years" – should be understood as being limited to an actual person. The Court went so far as to suggest that such an interpretation was undeserving of serious consideration. In terms of practice, I note the Court of Appeal for Ontario, as well as lower courts in this province, routinely impose section 161 orders on offenders in child luring cases involving police sting operations.

[84] For all of these reasons, I have concluded that a section 161 order is available in this case. Further, given all of the circumstances surrounding the commission of the offence, including the additional offences admitted in aggravation, along with the hebephilia diagnosis, I am satisfied that there is indeed a basis to conclude that Mr. Barnes poses at least some future risk to pubescent children. Therefore, I will make an order under section 161 with conditions specifically tailored to minimize that risk.

[85] Before concluding on this issue, a final observation. Deserving of at least some mention is the legislative record associated with amendments to subsection 161(1.1) that added offences capable of being committed either through interactions with an actual child or an undercover police officer posing as a child. A review of that record, including comments made at various stages of the legislative process, makes apparent that when it came to the availability of section 161 orders no one involved in the legislative process averted to any distinction between the two means by which some of the listed offences could be committed.

[86] By way of example, there is the testimony of the Minister of Justice appearing before the Standing Committee of Justice and Human Rights to explain the 2012 amendments. These amendments created the offences of making sexually explicit material available to a child (s. 171.1) and agreeing or arranging a sexual offence with a child (s. 172.2). The amendments also added these two new offences to the list of eligible offences found in subsection 161(1.1). Explaining these changes, the Minister of Justice testified:

[The amendments] seek to prevent the commission of sexual offences against children through the creation of two new offences and by requiring courts to consider imposing conditions to prevent suspected or convicted child sex offenders from engaging in conduct that could facilitate or further their commission of sexual offences against children.

[87] This quote is representative of comments made at various stages of the legislative process relating to these amendments. It is apparent from the legislative record that when it came to the availability of section 161 orders, those involved in the legislative process did not contemplate any distinction between offenders who commit an eligible offence by communicating with an actual child or an undercover police officer pretending to be a child. The legislative record ultimately goes no further than making clear that the purpose of the amendments was the more effective protection of children from sexual exploitation.

Conclusion

[88] The sentence imposed on Mr. Barnes for his offence will be noted as twelve months imprisonment. Following his arrest, Mr. Barnes spent fifteen days in pre-trial detention before being released on bail. There is nothing in the circumstances disentitling him to credit for this period at the ordinary rate. Therefore, the total sentence going forward will be 342 days imprisonment. I will endorse the Warrant of Committal with a specific recommendation that Mr. Barnes serve his sentence at the Ontario Correctional Institute, or a similar provincial correctional facility where he can obtain intensive sex offender therapy.

[89] Following his release from custody, Mr. Barnes will be subject to a probation order for three years. Beyond the statutory terms, the probation order will include the following conditions:

• To report to a probation officer within two business days following his release from custody, and thereafter if and when directed to do so;

• To take sex-offender counselling or therapy, with a specific recommendation that it be undertaken (if feasible) with Dr. Monik Kalia; and,

• That he cooperate with his probation officer and sign any necessary releases to allow his probation officer to monitor his compliance with any of the terms of the probation order.

[90] In addition, an order will issue pursuant to section 161 of the Criminal Code. The terms of that order will be as follows:

• Pursuant to section 161(1)(c) of the Criminal Code, for a period of twenty-years following his release from custody, Mr. Barnes is not to use a computer system within the meaning of s. 342.1(2) of the Criminal Code for the purpose of communicating with a person under the age of 16 years, except for immediate family members;

• Pursuant to section 161(1)(d) of the Criminal Code, for a period of twenty-years following his release from custody, Mr. Barnes is not to use the Internet or any similar communication service to:

  a) access any content that violates the law;

  b) directly or indirectly access any social media sites, social network, Internet discussion forum or chat room, or maintain a personal profile on any such service (e.g. Facebook, Twitter, Tinder, Instagram or any equivalent or similar service), but not including any Internet based dating service that has a recommended age for users of fifty-years of age or older.

[91] The terms of the section 161 order rather deliberately track the wording used by the Court of Appeal in R. v. Brar. The only variation serves to carve out an exception to permit Mr. Barnes to use Internet based dating sites that cater to persons over fifty-years of age. The inclusion of such an exception is informed by the reality that in this day and age a great many relationships begin online. At the same time, I am of the view that it is rather improbable that minors are using services that are aimed exclusively at more mature users. As a result, I have tailored the condition to strike a balance between protecting children and permitting Mr. Barnes a meaningful social life, which I think is essential to his rehabilitation in the long term.

[92] There are a number of further ancillary orders that will also issue, those being:

• An order that Mr. Barnes comply with the Sex Offender Information Registration Act for a period ten-years;

• An order directing the taking of a sample of Mr. Barnes' blood for inclusion of his DNA profile in the National DNA Databank;

• An order that the various digital devices used in the commission of the offences be forfeit to the Crown;

• A Victim Fine Surcharge order in the amount of $100.00.

[93] I close by thanking both counsel for their thorough and extremely helpful oral and written submissions in this case.

Released: May 8, 2018

Signed: Justice James Stribopoulos