WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. —(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,
(ii) 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, or
(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 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
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).
(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 Offence. —(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Date: 2016-10-07
Court File No.: Brampton 15-8392
Ontario Court of Justice
Between:
Her Majesty the Queen
- and -
R.C.
Before: Justice P.A. Schreck
Heard on: February 10-11, July 8, September 9, 2016
Released: October 7, 2016
Counsel
R. Prihar — counsel for the Crown
L. Shafran and J. Greenwood — counsel for the accused
REASONS FOR SENTENCE
SCHRECK J.:
I. INTRODUCTION
[1] R.C. pleaded guilty to one count of exposing his genital organs to a person under the age of 16 years, contrary to s. 173(2) of the Criminal Code. The Crown has elected to proceed by indictment. The victim was his 11-year-old step-daughter and the offence was the beginning of a pattern of R.C.'s sexual exploitation of her. He is a recidivist, having been convicted in the past of sexual assault on his niece.
[2] R.C. has served the equivalent of just under 11 months of pre-trial custody. The parties agree that no more imprisonment is warranted, that a lengthy period of probation is required and that a number of ancillary orders should be made. They disagree on the amount of presentence custody that should be attributed to his sentence. The Crown seeks 10 months. The defence seeks five months and 29 days in order to avoid adverse immigration consequences.
II. FACTS
A. Circumstances of the Offence
(i) The Exposure
[3] The complainant, L.F., is R.C.'s step-daughter. R.C. and L.F.'s mother were involved in a common law relationship and have three children together.
[4] The offence occurred on an unknown date between May and September 2011, when L.F. was either 10 or 11 years old. She and R.C. were sitting on the couch in the living room when R.C. removed his erect penis from his pants and said "Hey, look at it". At this point, L.F's mother entered the room and nothing further transpired. The police were not contacted at the time.
[5] Four years later, on July 12, 2015, the police attended R.C's house in relation to a domestic dispute. L.F.'s mother told them about the incident in 2011. She also told them about some text messages from R.C. she had seen on her daughter's phone in which he had written that he loved her "tittas" and liked her seeing his "battuta" (penis). He also wrote "I love you with all my balls." R.C. was arrested for exposing his genitals, invitation to sexual touching, sexual exploitation and assault (in relation to L.F.'s mother). He has pleaded guilty to only the first charge. It is anticipated that the remaining charges will be withdrawn once he is sentenced.
(ii) The Text Messages
[6] L.F. was interviewed by the police at the time of R.C.'s arrest. She told them that R.C. texted "stupid things" to her, such as that he would like to touch her breasts. She maintained, however, that he never actually touched her breasts. In early 2016, L.F. gave the police consent to search the text messages on her phone. The police found 812 messages between R.C. and L.F. sent between January 20, 2015 and his arrest on July 12, 2015.
[7] The identities of the senders and recipients of the messages are not in issue. The parties agree that I may consider the messages pursuant to s. 725(1)(c) of the Criminal Code, which allows a sentencing court to consider "any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge".
[8] The text messages are disturbing. L.F. was 15 years old at the time they were sent and R.C. was in loco parentis to her. In many messages, L.F. and R.C. state that they love and miss each other. They often sent heart-shaped "emojis".
[9] I do not intend to review all of the messages. Some examples are as follows.
April 14, 2015:
L.F.: Kkk bbb wash your culito [1] bb
R.C.: Yes bb
R.C.: I'm want to kiss your beautiful podoy [2] bb pls
L.F.: Yess bb later when ma go to work bb kk
L.F.: Imi know you miss puday so much bb
R.C.: No know bb
L.F.: Me too bb I misd ir beautiful cucumber
April 19, 2015:
R.C.: I'm liking your poday bb I like your ketchup, bb
L.F.: But my period bb is a lot
R.C.: Next time bb don't wore bb
L.F.: Im gonna take my clothes when I don't have my perio
June 29, 2015:
R.C.: U see how much I want to jump on ur body bb cause
L.F.: Me to bb
R.C.: Yes bb I know how much you miss me too bb darling
R.C.: Me I can't waith to fuck you bad bb
L.F.: Ys bb me too
L.F.: So bad fuck me hard bb kk
June 30, 2015:
L.F.: Im gonna tell them whe I was 11 year old he raped
L.F.: You like it
L.F.: No I dont like it
L.F.: U rape me
L.F.: I'm just telling you that cause im mad bb
R.C.: I'm no raipe you righth? answer to me pls pls
L.F.: No bb
L.F.: We make love bb
L.F.: U dont rape me bb we make love eacj other bb
[10] L.F. was re-interviewed by the police after they obtained the text messages. She claimed to not remember some of the messages and not understand the words used in others. She denied ever being touched by R.C. or having sexual intercourse with him. She told the police that R.C. "put stuff in her head and she just said it" and that he made her say "stupid things" by threatening to hurt her. R.C. also denies any sexual contact with L.F.
[11] L.F. declined to provide a victim impact statement.
B. The Offender
(i) Background
[12] R.C. is 53 years old. Originally from Ecuador, he has lived in Canada since 1993 and is a permanent resident. He is the father of five children, aged three to 25, the three youngest of which are also the children of L.F.'s mother. He completed high school and has a history of being gainfully employed except for two years when he was unable to work because of a workplace injury.
[13] R.C. was married for 20 years and after that had a 10-year common law relationship with L.F.'s mother.
(ii) Prior Criminal Record
[14] In 1998, R.C. was convicted of sexual assault and sentenced to an intermittent prison term of 90 days. The offence took place in 1995 and the victim was R.C.'s niece, who was 15 years old at the time. On one occasion, she slept at R.C.'s home and he came into her bed at night, touched her vagina with his hand and tried to remove her underwear. She ran away and R.C. followed her until she threatened him with a kitchen knife. On other occasions, during family gatherings R.C. would touch her vagina through her clothes.
(iii) Psychiatric Assessment
[15] R.C. was assessed by a forensic psychiatrist, Dr. Julian Gojer. After reviewing R.C.'s history and facts relating to the offence, Dr. Gojer concluded his report as follows:
Diagnosis
[R.C.]'s offending with two young females one being a step-daughter suggests very strongly that he has pedophilic interests. He has related to adult females and his pedophilia is of a non-exclusive type. There is nothing in his history to suggest that he has a problem with a major mental illness, drug or alcohol problem or that he has a personality disorder.
Prognosis and recommendations
In the absence of any other complicating mental disorder or personality disorder, [R.C.]'s risk of reoffending is limited to his problem with a non-exclusive pedophilia. He is accepting that this is a problem and needs treatment. [R.C.] has never had counseling for a sexual deviance and for his sex offending. His limited command of the English language will preclude group counseling. He should have individual counseling to address his problem with pedophilia. He is likely to do well in appropriate sex offender counseling. [R.C.] should not have unsupervised contact with children. He should not be in areas where children congregate.
[16] I am advised by counsel that R.C. has been attempting to obtain counselling for his pedophilia, but has been unable to do so because of financial constraints. He hopes that counselling will be made available to him once he is on probation. I am satisfied that the attempts R.C. has made are genuine.
(iv) Immigration Status
[17] R.C. is a permanent resident of Canada. Section 36(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA") provides that if he is convicted of an offence for which the maximum penalty is greater than 10 years or if he is sentenced to a term of imprisonment of six months or more, he will be "inadmissible on grounds of serious criminality." As the maximum penalty for the offence he pleaded guilty to is two years, he will be inadmissible only if he receives a sentence of six months or more. Sections 64(1) and (2) provide that if he is found to be inadmissible, he is not entitled to appeal that finding to the Immigration Appeal Division on humanitarian and compassionate grounds.
III. POSITIONS OF THE PARTIES
[18] The offence for which R.C. is being sentenced carries a maximum penalty of imprisonment for two years. [3] R.C. has served 215 days of presentence custody. In accordance with R. v. Summers, 2014 SCC 26, counsel agree that he should be credited on a "1.5 to 1" basis, the equivalent of 322 days or approximately 10.75 months.
[19] Both parties agree that R.C. has served more than enough time in prison and neither seeks a further term of imprisonment. The parties also agree that a lengthy term of probation is warranted and agree as to the ancillary orders that should be made. Where they disagree is with respect to the amount of presentence time that should be "noted", that is, the amount the Court states it would have imposed had there not been presentence custody. The Crown submits that it ought to be 10 months. The defence seeks five months and 29 days in order to avoid the adverse immigration consequences flowing from a sentence of six months or more. While the sentence that will actually be imposed will be less than six months, it is the sentence that would have been imposed before credit for presentence custody that is considered for the purposes of the IRPA: Level v. Canada (Minister of Citizenship and Immigration), [2010] F.C.J. No. 290 (T.D.) at para. 47.
IV. ANALYSIS
A. The Text Messages and s. 725(1)(c) of the Criminal Code
[20] The Crown asks the Court to consider the text messages as an aggravating factor, relying on s. 725(1)(c) of the Criminal Code, which allows the court to "consider any facts forming part of the circumstances of the offence that could constitute the basis for a separate charge." Counsel for R.C. accepts that I may consider the messages, but points out that they are remote in time to the offence for which he is being sentenced.
[21] In R. v. Larche, 2006 SCC 56, the Supreme Court of Canada set out three requirements that must be met before uncharged offences can be considered pursuant to s. 725(1)(c). First, if the accused disputes his guilt, the Crown must prove the uncharged offences beyond a reasonable doubt: Larche, at paras. 43-33. In this case, R.C. does not dispute the authenticity of the text messages, although it appears that both he and L.F. take the position that there was no actual sexual contact between them. In reading the text messages, I have considered those authored by L.F. as context, but not for their truth as they are hearsay. I have considered those authored by R.C. as admissions. I am satisfied beyond a reasonable doubt that there was at least some sexual contact between R.C. and L.F. during the time frame of the messages, although the frequency and nature of the contact is unclear.
[22] The second requirement is that there must be a nexus between the uncharged criminal conduct and the offence for which the offender is being sentenced: Larche at para. 51. The uncharged conduct need not be part of the same transaction as the offence charged, as was made clear in Larche (at para. 55):
"Facts" (or uncharged offences) of this sort that have occurred in various locations or at different times cannot properly be said to form part of the transaction covered by the charge for which the offender is to be sentenced. Recourse to s. 725(1)(c) may nevertheless be had where the facts in question bear so close a connection to the offence charged that they form part of the circumstances surrounding its commission. In determining whether they satisfy this requirement of connexity, the court should give appropriate weight to their proximity in time and to their probative worth as evidence of system or of an unbroken pattern of criminal conduct.
See also R. v. Shin (2015), 2015 ONCA 189, 322 C.C.C. (3d) 554 (Ont. C.A.) at paras. 92-95
[23] In my view, the text messages meet this requirement as they shed light on the nature of the relationship between R.C. and L.F. This evidence makes it clear that the offence was not an isolated incident or the result of a momentary error in judgment but, rather, part of a longstanding inappropriate sexual interest R.C. had in his step-daughter and part of a pattern of predatory criminal activity committed by him in relation to her. While the offence occurred a few years before the uncharged conduct, I am satisfied that it formed part of an unbroken pattern of criminal conduct in that the offence was likely the beginning of a course of conduct that culminated in the unlawful sexual contact referred to in the text messages.
[24] The third requirement is that consideration of the uncharged offences should not result in any unfairness to the offender: Larche at para. 46. In this case, the Crown has agreed to withdraw other charges against R.C. in exchange for his plea to the exposure charge, provided that the text messages could be tendered as evidence at the sentencing hearing. [4] R.C. has thereby gained an advantage by avoiding prosecution for far more serious charges than that for which he is being sentenced. No unfairness to him has resulted. As noted, his counsel acknowledged that the text messages could be considered.
[25] Section 725(2)(b) requires that I note on the Information any facts that were considered that could constitute the basis for a separate charge. The information should reflect that the Court has considered evidence of sexual contact between R.C. and L.F. between January 20 and July 12, 2015. In my view, given L.F.'s age at the time, the evidence could constitute the basis for the following separate charges: sexual assault (s. 271), sexual interference (s. 151) and invitation to sexual touching (s. 152). If prosecuted by indictment, sexual assault carries a minimum penalty of imprisonment for one year if the victim is under the age of 16 and a maximum of 10 years. The other two offences carry a minimum of one year and a maximum of 14 years.
[26] While the text messages and the inferences drawn from them are properly considered as significant aggravating factors, I remind myself that I am sentencing R.C. for the offence of exposing his genital organs to a person under the age of 16 years, which carries a maximum sentence of two years imprisonment, not the more serious offences with which he could have been charged.
B. Immigration Consequences
[27] Collateral consequences of sentencing, such as immigration consequences, can be taken into account in fashioning an appropriate sentence, as was explained in R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739 at para. 11:
The relevance of collateral consequences may also flow from the sentencing objective of assisting in rehabilitating offenders (s. 718(d) of the Criminal Code). Thus, when two possible sentences are both appropriate as regards the gravity of the offence and the responsibility of the offenders, the most suitable one may be the one that better contributes to the offender's rehabilitation.
However, the Court made it clear that the extent to which immigration consequences can affect the sentence imposed is limited (at paras. 13-14):
Therefore, collateral consequences related to immigration may be relevant in tailoring the sentence, but their significance depends on and has to be determined in accordance with the facts of the particular case.
The general rule continues to be that a sentence must be fit having regard to the particular crime and the particular offender. In other words, a sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.
[28] Thus, immigration consequences can be taken into account in determining where to situate a sentence within the range of appropriate sentences, but cannot justify the imposition of a sentence outside that range. I must therefore determine the appropriate range of sentence for exposure of genital organs to a person under the age of 16.
C. The Sentencing Range for s. 173(2) Offences
[29] In R. v. Alicandro (2009), 2009 ONCA 133, 246 C.C.C. (3d) 1 (Ont. C.A.) at para. 45, the Court held that s. 173(2) "was enacted to protect children against sexually exploitative conduct". Section 718.01 of the Criminal Code provides that for offences involving the abuse of a person under the age of 18 years, the Court "shall give primary consideration to the objectives of denunciation and deterrence of such conduct".
[30] There are not many sentencing cases involving s. 173(2). Prior to 2010, the offence could only be prosecuted summarily and carried a maximum sentence of six months with no minimum. As a result, the range was necessarily limited: R v. Solowan, 2008 SCC 62, [2008] 3 S.C.R. 309 at paras. 15-16; R. v. Mermer, [2015] O.J. No. 2857 (S.C.J.) at para. 20. It became a hybrid offence in 2010, with a maximum sentence of two years imprisonment if prosecuted by indictment. [5] In 2012, minimum penalties were added of 30 days imprisonment if prosecuted summarily and 90 days if by indictment. [6] However, because R.C. committed the offence he is being sentenced for in 2011, s. 11(i) of the Charter guarantees him the benefit of the lesser punishment and he is not subject to the mandatory minimum.
[31] Even though the offence is now hybrid, it appears that it is still usually prosecuted summarily and there are few indictable sentencing cases. There are even fewer where the sentence imposed was not part of a global sentence imposed for other offences.
[32] I have been able to find only two sentencing cases where the offence was prosecuted by indictment. In R. v. Dragos (2012), 2012 ONCA 538, 111 O.R. (3d) 481 (C.A.), a sentence of one month was imposed as a part of a global sentence of 23 months for internet luring, sexual interference and possession of child pornography as well as the s. 173(2) offence. All of the offences related to conduct the accused had engaged in with a 13-year-old girl he met on the internet. He had no prior record. In R. v. F.W.M., [2014] B.C.J. No 2995 (C.A.), a 14-month global sentence was imposed for convictions for indecent act, contrary to s. 173(1)(a), as well as a s. 173(2) offence. Unfortunately, the judgment contains no details about the offence.
[33] A nine-month conditional sentence was reduced to six months in R. v. J.B.O, [2013] N.S.J. 431 (C.A.), but only because the sentencing had taken place when the offence was still only punishable on summary conviction. The accused had also been sentenced to a consecutive 90-day term for sexual interference. The victims of both offences were the accused's young granddaughters. In R. v. Berhe (2011), 90 C.R. (6th) 307 (Ont. S.C.J.), the accused was convicted summarily under s. 173(2) and s. 173(1)(a) as well as of failing to comply with a probation order after he exposed his genitals to a family, including two young children, on the subway. Described by the Court as an "incorrigible recidivist", he had 11 prior convictions for indecent acts. He was sentenced to the maximum term of six months imprisonment for the s. 173 offences, to be served concurrently but consecutive to a 12-month term for failing to comply with probation. The six-month maximum was also imposed in R. v. Haug (2002), 2002 SKCA 49, 219 Sask. R. 276 (C.A.), concurrent to a sentence of 12 months for failing to comply with a probation order. Although the facts are not mentioned in the judgment, the accused was subject to a probationary term forbidding him from being in the company of a female person under the age of 14 unless in the company of an adult, which suggests that he had a prior related record.
[34] I note that these cases were decided before the amendments creating the 90-day mandatory minimum sentence. The creation of a mandatory minimum would have the effect of creating an "inflationary floor" which affects the range: R. v. Delchev, [2014] O.J. No. 2769 (C.A.) at para. 19. In other words, the range would be lower for offences committed prior to 2012.
[35] Having considered the general sentencing principles, s. 718.01 of the Criminal Code and the limited jurisprudence, in my view the appropriate range of sentence for a single occurrence of exposure to person under the age of 16 committed prior to 2012 where the Crown elects to proceed by indictment is one to 12 months.
D. The Appropriate Sentence in This Case
[36] The Crown takes the position that the appropriate sentence for R.C. would be 10 months, which would be at the high end of the range I have identified. There is no question that a sentence at the high end of the range would be justified. R.C. has a related record, although it is somewhat dated. The offence involved an egregious breach of trust. The text messages, which I have determined should be considered, are a significant aggravating factor.
[37] The issue that must be determined is whether the sentence sought by the defence is proportionate to the gravity of the offence and the degree of responsibility of the offender. As mentioned earlier, the primary sentencing considerations are specific and general deterrence and denunciation. With respect to specific deterrence, regardless of how much presentence custody is attributed to his sentence, R.C. has already served the equivalent of almost 11 months, which hopefully had a specific deterrent effect. With respect to general deterrence, insofar as the sentence I impose will serve as an indication to other potential offenders of the sentence they could expect to receive, 10 months may have a greater deterrent effect than five months and 29 days. However, I am satisfied that even the latter sentence will have some general deterrent effect.
[38] My real concern in this case is the principle of denunciation. This sentencing objective was explained in R. v. M.(C.A.), [1996] 1 S.C.R. 500 (at para. 81):
The objective of denunciation mandates that a sentence should also communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law. As Lord Justice Lawton stated in R. v. Sargeant (1974), 60 Cr. App. R. 74, at p. 77: "society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass". The relevance of both retribution and denunciation as goals of sentencing underscores that our criminal justice system is not simply a vast system of negative penalties designed to prevent objectively harmful conduct by increasing the cost the offender must bear in committing an enumerated offence. Our criminal law is also a system of values. A sentence which expresses denunciation is simply the means by which these values are communicated. In short, in addition to attaching negative consequences to undesirable behaviour, judicial sentences should also be imposed in a manner which positively instills the basic set of communal values shared by all Canadians as expressed by the Criminal Code.
[39] My concern is that the sentence sought by the defence will fail to sufficiently communicate society's abhorrence for the type of conduct R.C. engaged in. He abused his position of trust in relation to a vulnerable child for his own sexual gratification. However, after careful consideration I have concluded that the sentence sought by defence would make it clear that R.C.'s conduct is wholly inconsistent with the values of our society.
[40] In coming to this conclusion, I note that R.C. has pleaded guilty, thereby demonstrating remorse for his conduct. More importantly, he has expressed a willingness to engage in counselling for his pedophilia and it is Dr. Gojer's opinion that he is "likely to do well". As well, he has been contributing financially to the care of the children he has with L.F's mother. If he is deported, those children would be deprived of that financial contribution. Finally, the sentence imposed is within the range, although at the middle as opposed to the high end.
V. SENTENCE IMPOSED
A. Imprisonment and Probation
[41] For the foregoing reasons, the Information should reflect that the sentence that would have been imposed before credit is given for presentence custody is imprisonment for five months and 29 days.
[42] The passing of sentence is suspended and R.C. is to be placed on probation for a period of three years. In addition to the statutory terms, he is to abide by the following terms:
Report immediately in person to a probation officer and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.
Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with L.F.
Do not be within 500 metres of any place where you know L.F. to live, work, go to school, frequent or any place you know her to be.
Do not be in the company of any person under the age of 18 years, unless in the company of another adult, except for your natural children in accordance with a valid family court order.
Do not possess any weapons as defined by the Criminal Code.
Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by your probation officer and complete them to the satisfaction of your probation officer.
B. Ancillary Orders
[43] As required by ss. 490.012(1) and 490.013(1) of the Criminal Code, R.C. is ordered to comply with the Sex Offender Information Registration Act ("SOIRA") for a period of 10 years.
[44] In accordance with s. 487.051(2) of the Criminal Code, R.C. is ordered to provide such samples of bodily substances as may be required for forensic DNA analysis and inclusion in the national databank.
[45] Pursuant to s. 161(1)(a) and (b), R.C. is prohibited from the following for a period of 10 years:
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.
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.
Sections 161(a.1) and subsection (c) in its current form were not in force at the time the offence was committed. As a result, it is not open to me to impose orders pursuant to those sections because of s. 11(i) of the Charter: R. v. K.R.J., 2016 SCC 31.
Justice P.A. Schreck
Released: October 7, 2016
Footnotes
[1] I was advised by counsel that "culito" is a Spanish slang term meaning "butt" or "ass". R.C. is from Ecuador and speaks Spanish.
[2] According to an online Tagalog-English dictionary, "puday" is a Tagalog slang term for female genitalia. See www.glosbe.com. L.F. and her mother are from the Philippines.
[3] The current mandatory minimum sentence of 90 days imprisonment was not in effect at the time the offence was committed.
[4] R.C. is charged with invitation to sexual touching, but in relation to a different time period. He is also charged with sexual exploitation, contrary to s. 153(b) of the Criminal Code. As stated earlier, the Crown has indicated that it intends to withdraw these charges.
[5] S.C. 2010, c. 17, s.2.
[6] S.C. 2012, c. 1, s. 23.