R. v Lypaczewski, 2023 ONSC 3696

COURT FILE NO.: CR-21-309 (London) DATE: 20230630

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – Sean Lypaczewski Offender

Counsel: Kristina Mildred, for the Crown Andre Rady, Counsel for the Offender

HEARD: February 1, 2023 – By Zoom

Restriction on Publication

By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the persons described in this judgment as a complainant may not be published, broadcasted, or transmitted in any manner.

Reasons for Sentence

CARROCCIA J.

Overview

1The accused, Sean Lypaczewski, pleaded guilty on June 15, 2022, to the following charges:

COUNT 1 that he, between the 10th and 12th day of January in the year 2021 at the City of London in the said region did, by means of telecommunication, communicate with a person he believed to be under the age of sixteen years, for the purpose of facilitating the commission of an offence under Section 151 of the Criminal Code of Canada, R.S.C. 1985, c. C-46, with respect to that person, contrary to Section 172.1, subsection (2) of the Criminal Code of Canada.

COUNT 3 that he, between the 10th and 12th day of January in the year 2021 at the City of London in the said region did, without lawful excuse, possess child pornography in the form of written material, contrary to Section 163.1, subsection (4) of the Criminal Code of Canada.

COUNT 5 that he, between the 10th and 12th day of January in the year 2021 at the City of London in the said region did, without lawful excuse, make child pornography in the form of written material, contrary to Section 163.1, subsection (2) of the Criminal Code of Canada.

2The sentencing of this matter was adjourned to permit the preparation of a Pre-Sentence Report and for submissions to sentence.

Circumstances of the Offence

3This case involved an undercover operation; however, the police were not involved at the outset. On January 10, 2021, the accused was a 35-year-old married teacher. An individual posing as a 15-year-old female named “Breanne” made a post on the “Whisper” application online. The accused responded to that post and engaged in conversation with “Breanne”.

4The conversation became explicitly sexual in nature and the accused sent messages to the person he believed to be a 15-year-old girl which included a graphic description of the sexual acts he wanted to perform on her. A written version of the message has been filed as “Appendix A” to the facts read into the record by the Crown and acknowledged as accurate by the accused. That message is marked as exhibit #2 and has been sealed by the court because it would constitute child pornography.

5The accused sent “Breanne” a picture of himself, which was a true likeness of himself, but was not a provocative picture. There were discussions during the text conversations about “Breanne’s” age. It was clear that the accused was aware he was carrying on conversations with someone he believed to be 15 years old. At one point, the accused expressed concern about the consequences should anyone find out about their communications. He also expressed hesitation at continuing their discussions given “Breanne’s” age.

6Further communications were conducted on Instagram. These communications commenced as sexually explicit discussions, however eventually, Mr. Lypaczewski indicated that he could not continue to communicate with “Breanne”. He said “hey I’m sorry, I can’t do this. Like I thought I could, but I couldn’t. I’m really sorry.” Thereafter, their communications ended.

7The individual posing as “Breanne” took screenshots of their earlier conversations and posted it on a Facebook account of the school where it was believed that the accused worked as a teacher. The principal was notified, who eventually notified the police, who obtained a search warrant and searched the accused’s electronic devices.

8The accused was arrested on March 19, 2021, and after being interviewed by the police, he did not make an admission, but indicated that his wife was not responsible for the communications with “Breanne”.

The Position of the Parties

9Mr. Rady on behalf of the accused asks the court to consider imposing a suspended sentence and probation. While recognizing that that would not ordinarily be a sentence that would be considered in circumstances such as this, the defence submits that this conduct is not indicative of the type of person Mr. Lypaczewski is, and he has taken serious and effective steps towards his own rehabilitation since the date of his arrest. He emphasizes that there was no actual child involved in the commission of these offences and that there were no pornographic images transmitted during the communications.

10The accused takes responsibility, has acknowledged that he has a problem and has sought out help which bodes very well for his prospects of rehabilitation. The Pre-Sentence Report is very positive and discloses a willingness on the part of the accused to continue the steps he has taken through therapy to address his offending behaviour and prevent any repetition of it.

11It is submitted that the delay in completing this matter has had a positive result, in the sense that the accused has actively taken charge of his own rehabilitation.

12Further, the accused has suffered other serious effects as a result of his offending behaviour, he has lost his career, his marriage and his reputation. While recognizing the importance of denunciation and deterrence, Mr. Rady submits that this is the type of case that calls out for a sentence that recognizes the steps taken towards rehabilitation.

13The Crown is seeking a sentence of three years in jail and ancillary orders. Ms. Mildred on behalf of the Crown recognizes that the accused has expressed true remorse and has taken responsibility for his conduct. She agrees that the Pre-Sentence Report is positive, and that the accused has taken positive steps towards rehabilitation.

14The Crown, however, is of the view that the appropriate sentence must not simply focus on the circumstances of the accused. The accused came from a stable and supportive family and did have resources available to him that he should have taken advantage of before his conduct escalated to criminal conduct.

15Ms. Mildred also suggests that to some degree the accused minimizes his conduct by referring to it in the Pre-Sentence Report as “inappropriate” conduct. There should be no doubt that this conduct is criminal. This was not sexually explicit conduct with an adult person, but communications with a person who is incapable of consenting, someone he believed to be a child.

16Deterrence and denunciation are the paramount considerations in these circumstances. He was a father and a teacher who should have been well aware of the impact of predatory conduct on children, and yet he himself engaged in such conduct. This behaviour has also had a negative impact upon the school community to which he previously belonged.

17The Crown recognizes there was no actual victim in this case but submits that that does not lessen the moral blameworthiness of the accused, and accordingly, the sentence suggested by the Crown is within an appropriate range.

Circumstances of the Offender

18Mr. Lypaczewski is 38 years of age. He was raised in a positive family environment free from abuse or neglect. He married in 2012. In 2013, he and his wife were expecting twins, however, there were complications with the pregnancy which resulted in the loss of both children.

19Mr. Lypaczewski reported that he began to struggle with depression and anxiety following the loss of their twins and began to search online pornography and to participate in online sex chat rooms as a means to cope.

20Following his arrest in March of 2021, the accused disclosed his behaviour to his spouse and his family which resulted in his separation from his wife and being asked to leave the family home. His wife initially could not believe her husband capable of this behaviour. She was shocked and devastated when she found out the allegations were true.

21Mr. Lypaczewski is the father of three children aged 7, 5, and 4 years old. At the time of the arrest, he resided with his wife and children. Despite being asked to leave the family home, it appears that the accused and his former spouse continue to focus on co-operatively co-parenting their children. He continues to be an active parent assisting with the parenting responsibilities, including making meals and assisting with homework when he is with his children, and he has video chats with them when he is not.

22The accused’s parents have been devasted to learn of their son’s involvement in these offences, although they continue to love and support him.

23Mr. Lypaczewski was employed as a primary school teacher for about ten years. He was suspended once these allegations came to light and eventually fired by the school board. Since April of 2021, he has held several short-term employment positions.

24He does not suffer from any alcohol or substance abuse issues. He was co-operative in the preparation of the Pre-Sentence Report and recognized that his actions were inappropriate and believes that his conduct was influenced by his poor coping strategies. The accused suffered from low self-esteem and gravitated towards online activities that served as a form of “escape”.

25The Pre-Sentence Report confirms that the accused has been attending monthly appointments with a registered therapist since June 2021 to identify the root causes of his offending behaviour. The accused is described as honest and motivated to change.

26Mr. Lypaczewski entered a guilty plea and accepted responsibility for his conduct. Although not entered at an early opportunity, I accept the explanation offered both by defence and the Crown that he always intended to plead guilty. Resolution discussions were on-going for some time, and in fact, I conducted a pre-trial at which time pleas were discussed in April 2021. The intervening COVID-19 pandemic including court restrictions and scheduling issues resulted in the delay in resolving this matter.

27The accused has no criminal record.

28There were several letters filed in support to the accused. The letter from his sponsor in a program called “Sexaholics Anonymous” confirms that Mr. Lypaczewski has completed the 12 steps of their program. The letter is dated June 24, 2022, so although not expressly stated, it appears that this was done prior to, or at the time that the guilty pleas were entered to the charges, suggesting that he undertook involvement in this program of his own accord.

29The letter indicated that the accused, at that time, was attending meetings on a daily basis and had also been leading meetings, as well as sponsoring other members. He has expressed deep remorse for his conduct and for those he has hurt and his sponsor states that the accused expressed to him that he wished to move forward by contributing to his community.

30A letter from Mr. Randy Wood was filed as an exhibit as well. He is involved with a fellowship called Sex and Love Addicts Anonymous (SLAA) based upon the 12-step Alcoholics Anonymous Program. The letter is dated August 5, 2022, and indicated that as of that date, the accused had been attending the program for 12 months.

31SLAA focuses on changing personalities, focusing on spiritual concepts to free addicts from the need for unhealthy sexual activities. According to Mr. Wood, Mr. Lypaczewski has been focused on taking responsibility for his actions, rehabilitation and recovery. Mr. Wood says that the accused has shown commitment to recover as a healthy member of society.

32Beverley Clark, the mother of his children and the accused’s former spouse wrote a letter of support on his behalf. She indicates that due to the age of their children, they are unaware of their father’s circumstances and the charges to which he has plead. Depending upon the sentence imposed by the court, the children may have to be informed.

33Ms. Clark indicates that since the time of his arrest, the accused has remained an active and loving parent. He assists with parental responsibilities and has participated in counselling sessions with Ms. Clark to learn how to best approach the issue of his involvement in these offences and the sentence imposed when the children are advised, to attempt to minimize the negative impact upon them.

34Ms. Clark asks the court to consider their children when imposing sentence on this matter, and to consider how any sentence of incarceration would impact upon them. Ms. Clark expresses concern about the negative impacts that further separation from their father could have on the children.

Mitigating Circumstances

35The accused has pleaded guilty and accepted responsibility in a genuine way. Even while engaged in the offending conduct, he appears to have recognized that his behaviour was not appropriate in any way and decided to terminate communications with the person he believed to be underage.

36He has no criminal record. There is no indication that he has actually abused a position of authority or posed a risk to any children while he was employed as a teacher.

37He has abided by court-imposed conditions since his arrest and has sought out treatment and counselling on his own and recognized that he needed help to stop his offending behaviour.

38Mr. Lypaczewski has also suffered additional adverse consequences. He separated from his wife following his disclosure about his behaviour and has lost his employment, although he has managed to obtain gainful employment elsewhere.

39He recognizes that as a teacher, his conduct reflects badly not just on himself but on his profession.

Aggravating Circumstances

40Despite the fact that the individual with whom the accused was communicating was not a 15-year-old girl, he believed her to be an underage girl, and accordingly, the moral blameworthiness of his conduct is high.

41It is an aggravating circumstance that Mr. Lypaczewski was a teacher and in a position of trust towards children at the time of these offences, and although it does not appear that he acted in a predatory way towards any children with whom he had contact through teaching, he has, by his conduct raised concerns about that in the minds of the parents of students and other educators.

42He is an educated man who could have sought out assistance to prevent his behaviour from reaching the point at which it became criminal.

The Legal Principles

43In the decision of the Supreme Court of Canada in R. v. Friesen, 2020 SCC 9, the Court considered the appropriate penalty in internet child luring cases even when there is no child victim.

44At para. 93 the Court said:

Courts must give effect to the moral culpability of the offender in sentencing even where the facts giving rise to the conviction involve a police sting operation rather than a child victim. Child luring may be committed in two ways: the offender is actually communicating with an underage person, or the offender believes the person he is communicating with is underage even though this is not in fact the case. In particular, the offence of child luring is often prosecuted through sting operations: an undercover officer poses online as a child and waits for an offender to initiate communication with a sexual purpose (see, e.g., R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3, at para. 7; Morrison, at para. 4). Although the absence of a specific victim is relevant, it should not be overemphasized in arriving at a fit sentence. The accused can take no credit for this factor. As such, it does not detract from the degree of responsibility of the offender for that offence. After all, to be convicted of child luring in the context of a police sting operation where the person the offender was communicating with was not in fact under age, the offender both must have intentionally communicated with a person who the offender believed to be under age and must have had the specific intent to facilitate the commission of a sexual or other specified offence against that person (Morrison, at para. 153).

45The Court goes on at para. 94 to say that “child luring should never be viewed as a victimless crime”.

46The Crown relies in support of their position, on the recent decision of Justice M. A. Code in R. v. Moolla, 2021 ONSC 3702.

47The facts of that decision are similar to the circumstances of this case. In Moolla, the accused communicated with an undercover police officer posing as a 14-year-old girl. A lengthy text message conversation took place over the course of two days at the conclusion of which arrangements were made by the accused to meet in person with the “girl” for the purpose of engaging in sexual relations. The circumstances of the offender in that case, however, differ significantly from the present case.

48In Moolla, Code J. determined that there were important aggravating circumstances present, including the “not insignificant” prior criminal record of the accused, that he was on probation at the time of the offences, the nature of the voluminous sexually graphic text messages sent by him, including an explicit photo, and the added gravity of his conduct moving beyond luring and arranging an in-person meeting. There were also few mitigating circumstances. The accused refused to participate in the preparation of a Pre-Sentence Report, lacked insight into his offending behaviour, and had no desire to attend treatment or counselling or even to meet with his probation officer.

49In Moolla, at para. 21, Code J. says:

In Woodward, the Court of Appeal held that a range of three to five years would be appropriate if the offence of luring became “a pervasive social problem” and in light of Parliament having increased the maximum sentence from five years to 10 years in the 2007 amendments. In 2015, four years after Woodward, Parliament again increased the maximum sentence, from 10 years to 14 years. In 2020, the Supreme Court decided Friesen and held that “child-luring incidents more than doubled between 2010 and 2017”, that repeated increases in the maximum sentence mean that “courts need to give effect to Parliament’s clear and repeated signals to increase sentences”, and that the new range suggested in Woodward was to be “commended.” In all these circumstances, I am satisfied that three to five years is now the appropriate range. See: R. v. Woodward, supra at para. 58; R. v. Friesen, supra at paras. 46, 99-100, and 113-114.

50Other decisions dispute that this is the appropriate range for offences of this nature. In R. v. Sinnappillai, 2022 ONSC 832 at para. 64, Boswell J. said:

[64] I am reluctant to jump too quickly to the conclusion that there is now a set range of 3 to 5 years for internet child luring cases. I say this for two reasons. First, internet child luring is an offence that may be committed in a wide range of circumstances. It does not easily lend itself to a narrow range of appropriate sentences. Second, everyone agrees that the Supreme Court in Friesen has urged trial and appellate courts to nudge up the severity of sentences imposed for sexual offences against children. There is no doubt that the yardsticks are in motion. But, in my view, there isn’t yet a sufficient body of post-Friesen sentencing jurisprudence, particularly at the appellate level, that a set range might confidently be pronounced.

51In R. v. Collier, 2021 ONSC 6827, McArthur J. said the following at paras. 99-100:

[99] Clearly, sentences for luring offences must increase post-Friesen. But at this stage, there have been relatively few decisions applying the principles set out in Friesen to luring cases. There have been no Ontario Court of Appeal decisions articulating a new range. In my view, I have an insufficient body of caselaw to properly evaluate where the new range for luring should fall.

[100] In any event, while a new range has yet to emerge from the caselaw, as the Supreme Court has repeatedly held, ranges are guidelines, not hard and fast rules: Friesen, at para. 37; Lacasse, at para. 60; R. v. Wells, 2000 SCC 10 at para. 45; R. v. Nasogaluak, 2010 SCC 6, at para. 44. As noted in Friesen at para. 38, there may be a particular combination of aggravating and mitigating factors that calls for a sentence that “lies far from any starting point and outside any range: see also Lacasse, at para. 58; Nasogaluak, at para. 44, R. v. Suter, 2018 SCC 34, at para. 4. The issue for me is to try to determine the appropriate sentence for Mr. Collier, having regard to the gravity of his offending conduct and his moral culpability.

52In R. v. Fardshisheh, 2023 ONSC 1334, Justice R.E. Charney imposed a sentence of three years in jail to be served concurrently in circumstances where the accused engaged in the luring of a child (and not an undercover officer) to provide sexual services for compensation. The accused communicated with a 17-year-old girl on a number of occasions and met with her on at least six occasions during some of which money was exchanged for sexual services. The accused had no criminal record.

53The Court found that a reformatory sentence was not appropriate in case like that one, where a real child was involved (see para. 77).

54In R. v. Lacasse, 2015 SCC 64, at para: 58, the Supreme Court reminds us of the following:

The determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision. This is why it may happen that a sentence that, on its face, falls outside a particular range, and that may never have been imposed in the past for a similar crime, is not demonstrably unfit. Once again, everything depends on the gravity of the offence, the offender’s degree of responsibility and the specific circumstances of each case.

Analysis

55A review of the authorities suggests that there is no generally recognized appropriate range of sentence for offences involving child internet luring due to the wide range of factors to be considered which impact upon the offender’s moral blameworthiness and the gravity of the offences. Although this should not be interpreted as inferring that the words of the Court in Friesen are to be ignored. Offences involving child internet luring require a denunciatory sentence whether the offender actually communicates with an underage child or only believes he is communicating with an underage child to facilitate the commission of a sexual offence.

56In any event, sentencing ranges are meant to be guidelines for judges and not hard and fast rules, see Lacasse at para. 60.

57The sentence imposed in this case must recognize the fundamental purposes of sentencing outlined in s. 718 of the Criminal Code including denunciation of this type of conduct and the deterrence of the accused and others from engaging in predatory behaviour towards children.

58This type of conduct is not victimless, despite the fact that the recipient of the communications was someone posing as a child and not an actual child. Our children are vulnerable. They require protection. We must protect them from predatory sexual behaviour by adults. Social media gives sexual predators unprecedented access to potential victims of internet child luring.

59There are a number of aggravating circumstances present in this case, but also many mitigating circumstances that support the imposition of a sentence of less than the three-year sentence suggested by the Crown.

60Mr. Lypaczewski, when given an opportunity to address the court, expressed genuine remorse and shame for his conduct. He accepted responsibility and recognized how his conduct has negatively impacted his children, his spouse, his family, his chosen profession as a teacher, and the community in general. He has no criminal record.

61I acknowledge that this is not the usual case of child internet luring. The communications took place over a short period of time. The accused believed he was communicating with a 15-year-old girl and sent sexually explicit communications describing the sexual conduct he wanted to engage in with her. However, it did not progress to arranging an actual meeting, and the accused terminated the communications.

62The accused has taken this behaviour seriously and has undertaken a course of treatment to address the underlying issues that lead to this conduct and to ensure that it does not recur. He has also, through counselling, sought to assist others to do the same.

63He has also suffered very serious and significant consequences as a result of his offending behaviour. He lost his teaching job, a career that he invested time and effort into securing. Most importantly for him, instead of now being a daily presence in his children’s lives, he sees them on a set schedule.

Sentence

64The imposition of an appropriate sentence requires the court to balance all of the relevant circumstances to impose a sentence which addresses the moral blameworthiness of the offender and the gravity of the offence. This was a particularly difficult task in the circumstances of this case. I recognize that any sentence that I impose today will impact not only the accused, but his children as well.

65I have taken into account the important, positive steps that the accused has taken towards his own rehabilitation. He recognizes the harm he caused by his conduct and that he needs help to minimize the risk that he would engage in this behaviour in the future.

66On the other hand, the Supreme Court has made it abundantly clear that denunciation and deterrence are the paramount factors in imposing sentence involving the sexual abuse of children. The Court has also said that absence of a specific victim, such as in this case, should not be overemphasized in imposing a fit sentence.

67Accordingly, in my view an appropriate sentence taking all the circumstances into account, is 12 months in jail on count #1; and 12 months concurrent on count #3 and count #5, followed by probation for two years with conditions.

68The conditions of your probation will be as follows:

• Report in person to a Probation Officer within 24 hours following your release after you have completed serving your sentence and thereafter as and when and in the manner directed by your Probation Officer;
• Attend and actively participate in any counselling or rehabilitative programs as directed by your Probation Officer;
• Sign any necessary release form requested by your Probation Officer so that they may monitor your attendance and participation in any counselling or rehabilitative program.

69You will be required pursuant to s. 487.051 to provide a sample of your DNA for the DNA Databank on count #1, a primary designated offence.

70You will be required to comply with the Sex Offender Information Registration Act pursuant to s. 490.012 of the Code for a period of 20 years.

71There will be an order pursuant to s. 161 of the Code prohibiting you from:

(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;

(d): Your use of the internet shall be in accordance with the following conditions: You are not to directly or indirectly access any social media sites, social network, internet discussion forum or chatroom, or maintain a personal profile on any such service (such as Facebook, Twitter, Tinder, Instagram, Whisper or any equivalent or similar service).

for a period of 10 years following the completion of your sentence of incarceration.