Court Information and Parties

Date: April 4, 2019

Information No.: 2811-998-17-36678-00

Ontario Court of Justice

Her Majesty the Queen

v.

Brian Parks

Proceedings at Reasons for Sentence

Before the Honourable Justice P.C. West

on April 4, 2019 at Oshawa, Ontario

Appearances

• K. Pollock – Counsel for the Crown
• P. Stiles – Counsel for Brian Parks

Heard: In Writing

Reasons for Sentence

WEST, J: (Orally)

Conviction and Prior Judgment

On December 11, 2018 I found Mr. Parks guilty after a trial of the criminal offence of agreeing with a person or making an arrangement with a person by means of telecommunications, to commit the offence of sexual assault with a person who was or was believed to be under the age of 16, contrary to s. 172.2(1)(b) of the Criminal Code of Canada. My Reasons for Judgment are reported at R. v. Parks [2018] O.J. No. 7017.

Constitutional Challenge and Adjournment

Mr. Stiles on behalf of Mr. Parks advised that he would be bringing a constitutional challenge to the mandatory minimum sentence of one year where the Crown proceeds by indictment pursuant to s. 172.2(2)(a). The matter was adjourned to March 15, 2019 for counsel's sentencing submissions and the constitutional challenge. On February 13, 2019 Mr. Stiles filed a constitutional challenge to the mandatory minimum sentence imposed by s. 172.2(2)(a). The return date had to be adjourned because of a medical issue and was re-scheduled to April 4, 2019.

I have received factums and casebooks from both counsel, which I have reviewed. I want to express my gratitude to counsel for their well-presented factums and casebooks, which provided me with great assistance in determining the issues on this sentencing. A Pre-Sentence report (PSR) was ordered on December 11, 2018, and the PSR authored by probation and parole officer, Derek Nixon, dated March 12, 2019 was marked as Exhibit 2 on sentence.

Trial Summary

The Crown in this case proceeded by way of indictment. The trial was abbreviated as a result of concessions made by defence counsel and the sole issue was whether Brian Parks specifically intended to agree or make an arrangement with another person, Sara, by means of telecommunications to sexually assault Sara's 11 year old daughter. There was no issue in this case that Brian Parks intentionally communicated by email and text with Detective Constable Lockwood who he believed to be Sara. Further there was no issue he knew Sara's daughter was 11 years old from the emails and texts. As a result of these concessions, s. 172.2(3) was not an issue during Mr. Parks trial.

At the trial I rejected Mr. Parks evidence that he did not believe Sara's 11 year old daughter was real as he was role playing. Further Mr. Parks evidence did not leave me with any doubt as to what his intention was in the emails and texts he sent Sara for the reasons set out in paragraph 32 of my Judgment. As I indicated in my reasons, when the emails and texts were viewed in their entirety as one conversation, it was abundantly clear Mr. Parks was not engaged in role play or fantasy. His evidence that he believed both he and Sara were engaged in role play was patently inconceivable and unbelievable.

Position of the Parties

Defence Position

It was Mr. Stiles position that the mandatory minimum sentence of one year is unconstitutional as it amounted to cruel and unusual punishment in violation of s. 12 of the Charter which could not be justified under s. 1. The defence argued a fit sentence was six months. The defence submitted a sentence of 12 months would be grossly disproportionate in the circumstances of this case or on other reasonably foreseeable offenders. The defence did not challenge the probation order or the ancillary orders flowing from Mr. Parks conviction.

Crown Position

The Crown position is that the s. 12 Charter argument should be summarily dismissed as a proportionate sentence in this case far exceeds the mandatory minimum sentence and as a result the constitutional issue raised by the defence is moot. The Crown seeks a sentence of 18 months incarceration followed by a three year probation order. The Crown also seeks a s. 161 order and a SOIRA order for 20 years pursuant to s. 490.013(1) of the Criminal Code and a DNA order, primary designated.

Circumstances of the Offender

Mr. Parks is a 57 year old first offender. He has two children, a son, age 34 and a daughter, age 32, who he is in regular contact. During the texting and emails with "Sara", Mr. Parks was in a common-law relationship, although he advised he ended the relationship after he was charged because his arrest was published in the media and it would have caused problems for his partner.

Mr. Parks was raised by his father and stepmother and after they separated in 1970 commuted more with his stepmother as he lived with her. Mr. Parks does not describe any negative influences in his life during his upbringing.

Mr. Parks is employed full-time for the past four years as a plant manager and pressman with a printing company in Peterborough, working 40 to 60 hours per week. He told the probation officer he has been volunteering at Habitat for Humanity for nine months.

Mr. Parks pleaded not guilty to the offence and he continued to indicate to the probation officer he was only going along with the fantasies of the person he was talking to. Mr. Parks maintained he did not have any sexual interest in children and was only interested in age appropriate sexual relations. He advised the probation officer he did not "fantasize about children and he watched adult male on female porn approximately every two weeks". He indicated "he did not believe his sexual thoughts were disturbing, that he was not interested in any sexually unusual things or activities".

Counselling and Psychological Assessment

Mr. Parks disclosed he had been attending counselling with Derek Wright, a clinical social work therapist with Wright Path Counselling Services. He saw Mr. Wright eight times in 2017 and on three occasions in 2018. Mr. Wright advised Mr. Parks told him the offence was all a fantasy and that he would never act on those fantasies. Mr. Parks told Mr. Wright he believed his fantasy was legitimate. Mr. Wright advised the probation officer Mr. Parks gave him the impression Mr. Parks was not being totally open about what happened. Mr. Wright indicated it was hard to assess how remorseful Mr. Parks was as he did not show much emotion, but Mr. Parks told Mr. Wright he was remorseful.

There was a section in the PSR outlining the opinion of the Officer in Charge of the investigation, Detective Constable Lockwood. He expressed a number of concerns relating to the sexual acts Mr. Parks suggested in the texts and email. It is my view this information was provided by Detective Constable Lockwood during his evidence at the trial and with the greatest of respect, he does not have the necessary credentials to provide evidence as to future risk assessment of Mr. Parks. I do not take anything more from this s. in the PSR other than my findings of fact related to the exhibits filed during the trial.

It was the probation officer's opinion Mr. Parks was minimizing his involvement in the offence. Mr. Parks told the probation officer he was not the one who initiated the discussions that led to his arrest. The probation officer had concerns as to the likelihood of Mr. Parks re-offending. The probation officer was of the opinion Mr. Parks was not a suitable candidate for community supervision.

The Sexual Acts Suggested by Mr. Parks in the Texts and Emails and His Arrangement or Agreement with Sara

In my Reasons for Judgment I found as a fact that Brian Parks made an arrangement or agreement to commit the following sexual acts with Sara's 11 year old daughter from an assessment of his emails and texts.

August 30th, 2017 (First Day of Communications)

a. Mr. Parks asked if Sara had ever thought of doing anything with her daughter. (Email 10 – Exhibit 2).

b. Mr. Parks sent the first nude picture of himself for Sara. (Email 24 – Exhibit 2).

c. Mr. Parks in response to Sara's response to his photo asked if she wanted him to masturbate for Sara or her daughter or both? (Email 26 – Exhibit 2).

d. Mr. Parks asked maybe her daughter could perform fellatio on him while she watched. (Email 28 – Exhibit 2).

e. Mr. Parks suggested they refer to her daughter as Sara's roommate. (Email 30 – Exhibit 2).

f. Mr. Parks having sexual intercourse with the child while her mother licked his balls, ejaculating on Sara's face and having the child lick it off. (Email 32 – Exhibit 2).

All of those emails were sent on August 30th, 2017, the first day of conversations between Mr. Parks and Sara.

August 31st, 2017

g. Mr. Parks responded to Sara's comment about her daughter having issues by saying this could work in their favour. (Text Exhibit 5 at 12:27 p.m.)

h. Mr. Parks masturbating in front of the child and her mother. (Exhibit 5 at 1:09 p.m.)

i. Mr. Parks digitally penetrating Sara while the child watched. (Exhibit 5 at 3:00 p.m.)

September 6, 2017

j. Have the child perform fellatio on him. (Exhibit 5 at 9:34 a.m.)

k. Mr. Parks having sexual intercourse with Sara and ejaculating on the child's face. (Exhibit 5 at 9:34 a.m.)

l. Mr. Parks having anal intercourse with the child. He sent a photo of his genitals. (Exhibit 5 at 11:14 a.m.)

m. Having the child perform fellatio on Mr. Parks and cunnilingus on her mother. (Exhibit 5 at 11:14 a.m.)

n. Mr. Parks ejaculating on the child's face accompanied by a pornographic picture of a male ejaculating on the face of a female dressed as a child. (Exhibit 5 at 12:16 p.m.)

o. Mr. Parks pretending to be a doctor and performing an "examination" on the child. (Exhibit 5 at 12:16 p.m.)

September 12, 2017

p. Mr. Parks asked Sara about using a toy on her daughter. (Exhibit 5 at 9:54 a.m.)

q. Mr. Parks asked Sara what she wanted to watch and do to her daughter. (Exhibit 5 at 9:54 a.m.)

r. Mr. Parks says he keeps picturing himself ejaculating on her daughter's face. (Exhibit 5 at 9:54 a.m.)

September 13, 2017

s. Mr. Parks digitally penetrating the child and having her perform fellatio on Mr. Parks in the presence of her mother. (Exhibit 5 at 11:29 a.m.)

September 18, 2017

t. Mr. Parks masturbating and ejaculating on the child's face while her mother masturbated and watched. (Exhibit 5 at 10:03 a.m.)

u. Mr. Parks digitally penetrating the child while masturbating and ejaculating on the child's face followed by sexual intercourse with the child. (Exhibit 5 at 2:01 p.m.)

v. Having the child perform fellatio on Mr. Parks (accompanied by two photographs of Mr. Parks partially erect penis with instructions to show it to the child to gauge her reaction). (Exhibit 5 at 6:40 p.m.)

September 19, 2017

w. Mr. Parks asked Sara he wondered how far they would go with her daughter. Sara might feel weird or odd when they try something with her. They will see how her daughter reacts. (Exhibit 5 at 9:58 a.m.)

Aggravating Circumstances Related to Communications

An aggravating circumstance was when Sara advised Mr. Parks that her daughter "had some issues" implying her daughter suffered from some type of developmental or intellectual disability. Mr. Parks responded that those issues may work in their favour.

Mr. Parks sent a number of photographs of his genitals and a video of him masturbating which he instructed Sara to show her daughter in preparation of their anticipated sexual activity.

And finally, Mr. Parks arranged a meeting with Sara to discuss face to face their agreement and arrangement for Mr. Parks to have sex with Sara's 11 year old daughter.

Framework for Constitutional Challenge

In R. v. Lloyd, [2016] 1 S.C.R. at para. 22-24, Chief Justice McLaughlin set out the framework for a sentencing judge to determine the constitutionality of s. 172.2(2)(a) of the Criminal Code.

Paragraph 22

The analytical framework to determine whether a sentence constitutes "cruel and unusual" punishment under S. 12 of the Charter was recently clarified by this Court in Nur. A sentence will infringe S. 12 if it is "grossly disproportionate" to the punishment that is appropriate, having regard to the nature of the offence and the circumstances of the offender. Nur, at para. 39. R. v. Smith, [1987], 1 S.C.R. 1045 pg. 1073: A law will violate S. 12 if it imposes a grossly disproportionate sentence on the individual before the Court or if the law is reasonably foreseeable applications will impose grossly disproportionate sentences on others. Nur, para. 77.

Paragraph 23

A challenge to a mandatory minimum sentencing provision under S. 12 of the Charter involves two steps: Nur, at para. 46. First, the Court must determine what constitutes a proportionate sentence for the offence having regard to the objectives and principles of sentencing in the Criminal Code. The court need not fix the sentence or sentencing range at a specific point, particularly for a reasonable hypothetical case framed at a high level of generality. But the court should consider even implicitly the rough scale of the appropriate sentence. Second, the court must ask whether the mandatory minimum requires the judge to impose a sentence that is grossly disproportionate to the offence and its circumstances: Smith, at page 1073; R. v. Golts, [1991] 3 S.C.R. 485 pg. 498; R. v. Morrisey, 2000 SCC 39, 2000 S.C.C. 39, [2000], 2 S.C.R. 90 At para. 26-29; R. v. Lyons, [1987] 2 S.C.R. 309 pgs. 337-338. In the past this Court has referred to proportionality as the relationship between the sentence to be imposed and the sentence that is fit and proportionate: see e.g., Nur, at para. 46, Smith, at pgs. 1072 to 1073. The question, put simply, is this: In view of the fit and proportionate sentence, is the mandatory minimum sentence grossly disproportionate to the offence and its circumstances? If so, the provision violates s. 12.

Paragraph 24

This Court has established a high bar for finding that a sentence represents a cruel and unusual punishment. To be "grossly disproportionate", the sentence must be more than merely excessive. It must be "so excessive as to outrage standards of decency" and "abhorrent or intolerable" to society. That is Smith pg. 1072 citing Miller vs. the Queen, [1977] 2 S.C.R. 680 pg. 688. Morrisey at para 26. R. v. Ferguson 2008 SCC 6, 2008, S.C.C. 6 or [2008] 1 S.C.R. 96 para. 14. The wider the range of conduct and circumstances captured by the mandatory minimum, the more likely it is that the mandatory minimum will apply to offenders to whom the sentence would be grossly disproportionate.

Sentencing Principles to be Applied

The first step therefore is for me to determine what will constitute a fit and proportionate sentence having regard to the objectives and principles of sentencing in the Criminal Code.

In determining an appropriate sentence for Mr. Parks, regard must be had to the sentencing objectives set out in S. 718 of the Criminal Code which provides as follows:

The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

a. Denounce the unlawful conduct;

b. Deter the offender and others from committing such an offence;

c. Separate the offender from society, where necessary;

d. Assist in the rehabilitation of the offender;

e. Provide reparation for harm done to "victims" or the community; and

f. Provide a sense of responsibility in the offender while acknowledging the harm done to the "victims" and the community.

The sentencing Judge must also have regard to S. 718.2 which provides: A sentence should be increased or decreased to account for any aggravating and mitigating circumstances.

s.718.2(a)(i) to (vi); A sentence should be similar to other sentences imposed similar offenders and similar circumstances. (s. 718.2(b));

The combined duration of consecutive sentences not be unduly long (s. 718.2(c));

Offender not to be deprived of liberty if less restrictive sanctions may be appropriate (s. 718(d)).

And all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders with particular attention to the circumstances of Aboriginal offenders. (s. 718.2(e)).

Fundamental Principle of Proportionality

The "fundamental principle" of sentencing pursuant to 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender". As Lebel, J. explained in R. v. Ipeelee, 2012 SCC 13, [2012] S.C.J. 13, at para. 37:

Proportionality is the sine qua non of the just sanction. First the principle ensures that a sentence reflects the gravity of the offence. This is closely tied to the objective of denunciation. It promotes justice for victims and ensures public confidence in the justice system. As Wilson, J. expressed in her concurring judgment in Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 at p. 533:

It is basic to any theory of punishment that the sentence imposed bears some relationship to the offence. It must be a "fit" sentence proportionate to the seriousness of the offence. Only if this is so can the public be satisfied that the offender "deserved" the punishment he received and feel a confidence in the fairness and rationality of the system.

Second, the principle of proportionality ensures that a sentence does not exceed what is appropriate, given the moral blameworthiness of the offender. In this sense, the principle serves a limiting or restraining function and ensures justice for the offender. In the Canadian criminal justice system, a just sanction is one that reflects both perspectives on proportionality and does not elevate one at the expense of the other.

See also R. v. Nur, 2015 SCC 15, [2015] S.C.J. No. 15 para. 41-43 & 46.

Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime. (see R. v. M(C.A.), [1996] 1 S.C.R. 500, para. 92).

Seriousness of Luring Offences

Offences by means of telecommunications of luring under s. 172.1(1) and agreeing with a person to commit a sexual assault with respect to another person who is or who the accused believes is under 16 (s. 172.2(1)) are serious offences. These offences are inchoate or preparatory offences, which are made out whether or not a further sexual offence is committed. The offence under S. 172.2 "seeks to prevent the commission of the designated crimes by criminalizing conduct that occurs on the way toward the commission of the designated crimes" as indicated by Doherty, J. in R. v. Alicandro, 2009 ONCA 133, [2009] O.J. No. 571 (Ont. C.A.) The focus is on the predator's intention at the time not afterwards and by criminalizing conduct that precedes sexual offences, the luring offence provision tries to "close the cyberspace door before the predator gets in to prey". R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, para. 25.

Sentencing Principles for Child Exploitation Offences

For offences involving children and their exploitation through the Internet, the objectives of general deterrence and denunciation, save in the rarest of cases are the paramount sentencing principles to be applied. See R. v. Filino, [2005] O.J. No. 4737 (Ont. C.A.), para. 25 and R. v. Wheeler, [2017] O.J. No. 6797 (S.C.J. Hockin J).

Sentencing Ranges from Case Law

In R. v. Jarvis, [2006] O.J. No. 3241 (Ont. C.A.), they indicated the offence of luring calls for a sentence in the range of 12 months to two years, although a sentence of six months was upheld. This case pre-dated the enactment of mandatory minimum sentences and described the sentence of six months as lenient. In R. v. Woodward, 2011 ONCA 610, [2011] O.J. No. 4216 (Ont. C.A.), Moldaver, J.A. (as he then was), writing for the court, reiterated the seriousness of sexual offences involving children. He expressed doubt as to whether Justice Rosenberg in Jarvis had actually set the range of sentence but held if one was, it should be increased:

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.

In 2012 the maximum sentence for offences pursuant to s. 172.1 and S. 172.2 was increased from 10 years to 14 years. In my view Justice Moldaver's comments and viewpoint in Woodward becomes even stronger.

Recent Ontario Court of Appeal Decision

The Ontario Court of Appeal in R. v. Morrison, 2017 ONCA 582, [2017] O.J. No. 3600 dealt once again with the issue of the appropriate sentence in a case involving child luring. Here the offender communicated with an undercover police officer who was posing as 14 year old Katie. Morrison testified that he believed he was participating in a sexual fantasy with an adult female. Unlike Mr. Parks case, Morrison did not arrange a meeting and he ended his communication unilaterally. The trial judge had a doubt about whether Morrison believed he was communicating with a child but found him guilty on the basis he did not take reasonable steps to ascertain the age of the person. The trial judge found the 12 month mandatory minimum given the Crown's decision to proceed by indictment was grossly disproportionate, contravened S. 12 of the Charter and imposed a remnant sentence of 75 days intermittent followed by probation. The Court of Appeal upheld the trial judge's sentence.

Both parties appealed to the Supreme Court which recently released their decision, R. v. Morrison, 2019 SCC 15, [2019] S.C.J. No. 15. The Supreme Court ordered a new trial on the issue on whether the Crown had proven beyond a reasonable doubt Mr. Morrison believed Katie was under the age of 16. The majority of the Court written by Moldaver J., held s. 172.1(4) was constitutional, but the trial judge had expressed a doubt that Mr. Morrison believed Katie was under age and convicted him solely on whether he had taken reasonable steps under S. 172.1(4). Fairness dictated there be a new trial. The Supreme Court majority declined to address whether s. 172.1(2)(a) was unconstitutional under s. 12 of the Charter leaving this to be decided in another case. Consequently there is now no binding decision declaring s. 172.1(2)(a) as being unconstitutional.

What is a Proportionate Sentence Given the Circumstances of Mr. Parks Case?

Mitigating and Aggravating Circumstances to be Considered

Mitigating Circumstances

Mr. Parks is a first offender who has not been in trouble with the police prior to his arrest on this charge in 2017. He has been gainfully employed for the past 4 years as a plant manager in a printing firm. The letter provided by his employer speaks in glowing terms of his work ethic and leadership. He has a lived a pro-social life for 57 years. He has support in the community from his mother and his children and others and those who know him are shocked by the charge he has been found of guilty.

He sought the assistance of a counsellor, however, he told his probation officer and his counsellor that he sought counselling because he believed it would benefit him through the court process. In my view Mr. Parks has limited insight into his behaviour that finds him convicted of a very serious criminal offence.

Psychological Report and Lack of Insight

After submissions by defence counsel and the Crown were completed, Mr. Stiles for the first time despite my commenting on a number of the cases where individual offenders had pleaded guilty and sought sex offender counselling and treatment to gain insight into their behaviour, provided me a psychological report dated June 8th, 2018, authored by Dr. Shannon Czuba-Mossip, psychologist. What is concerning about this report is that Mr. Parks maintained to Dr. Czuba-Mossip in providing the background for his seeking an assessment that he had become involved in a "open mind conversation" with a 37 year old woman on Craigslist who had a 12 year old daughter. This woman suggested to him that he hook up with her daughter. Despite it not being his instigation, he told the psychologist he suggested to the woman they refer to her daughter as her roommate. According to Mr. Parks, it was only role playing for two to three weeks. When he went to meet this woman he was arrested for intent to lure a minor. The conclusion of the report indicates the following:

Mr. Parks was referred for an assessment for his current emotional status, level of impairment and DSM-V diagnosis. Mr. Parks completed a number of psychological assessments, which revealed no elevated clinical concerns toward a diagnosis; however, due to elevated sub-scales on the MMPI, it would appear as though Mr. Parks underreported. His MMPI revealed elevated scores for Need for Affection which likely contributed to his decision to seek out relationships online. Mr. Parks may benefit from continuing with the individual counselling to help him better identify and understand his feelings, as well as to explore his need for affection and possible resulting problematic behaviours.

In my view, having regard to the emails and texts filed as exhibits on Mr. Parks' trial, he engaged in significant underreporting to the psychologist. Further, he did not engage in a risk assessment or have conducted phallometric testing with a psychologist. The psychological report further demonstrates Mr. Parks' lack of insight into his offending behaviours as reflected in the emails and texts. Mr. Parks also maintained his position he did not initiate the conversations about the woman's daughter and blamed the woman which is false and a lie based on the emails and texts. I do not find his psychological assessment filed as Exhibit 3, to be of any assistance in determining a proportionate sentence for Mr. Parks conduct.

Aggravating Circumstances

An aggravating circumstance in this case is that I found from the emails and texts it was Mr. Parks who very early in the exchange of telecommunications brought up the idea of sexual encounters with a child. (see paragraph 32(2) in my Reasons for Judgment dated December 11, 2018). He was the one who brought up each of the numerous scenarios and suggestions for sexual activity with Sara's 11 year old daughter. (see emails and texts noted above (a) to (w)). I found Mr. Parks lied about who initiated the discussions about sex with Sara's daughter based on the content of his emails (see emails eight and ten Exhibit 2).

A further significant aggravating circumstance is Mr. Parks response when Sara advised him that her daughter had issues. His immediate response was this could work in their favour because it would be easier to sexually assault this child. His suggestion he could pose as a doctor and conduct an "examination" is also aggravating as it clearly demonstrates his wanting to "groom" Sara's daughter. This is also seen in his instruction to Sara to show her daughter the photographs he sent of his genitals and the video of him masturbating. These steps in getting Sara to groom her daughter were preparatory steps to ultimate sexually assault a child.

It is very aggravating that Mr. Parks was prepared to encourage a mother to breach her position of trust towards her child for Mr. Parks' sexual pleasure. Further the fact that Mr. Parks suggested they refer to Sara's daughter as her roommate demonstrated Mr. Parks was fully aware of the illegality of their conversations and the agreement they reached together. This is also an aggravating circumstance.

Mr. Parks in his texts expressed how he became excited when he visualized the scenarios he was suggesting to Sara involving her daughter or as a threesome. This raises concerns as to future risk for Mr. Parks committing similar offences in the future.

Remorse and Acceptance of Responsibility

There was an issue raised in the PSR as to whether Mr. Parks had expressed any remorse for his conduct. In my view this is not an aggravating circumstance to be considered on sentence. Mr. Parks has the right to dispute the findings of fact I made at the conclusion of his trial. However the mitigation that is reflected by the acceptance of responsibility through a plea of guilty which is seen in many of the cases provided it to me, is not available to an offender who proceeds to his trial.

Arrangement to Meet

There is no requirement in these cases for the offender to actually meet with the person they are making an agreement with. In my Reasons for Judgment I found Mr. Parks attendance to meet Sara was to move their communication and their agreement from online to in-person with the intention to ultimately meet Sara's daughter for sexual activities. In my view this meeting is a further serious aggravating circumstance as I found this meeting was arranged by Mr. Parks to meet the person he believed had agreed with him to sexually assault the child (Sara's daughter).

Absence of Actual Child Victim

Mr. Stiles argued that because no child was actually involved in Mr. Parks' telecommunications and because Sara was a fictional mother and her daughter did not exist, that this somehow reduced the seriousness of the conduct engaged in by Mr. Parks. I adopt the analysis of Justice Pomerance in R. v. Harris, [2017] O.J. No. 788 concerning this issue.

No child was actually put at risk by the offender's conduct. Katie was not really a young girl. She was a persona created by the undercover officer in an effort to "lure" the "lurer". However I do not see this as a mitigating factor. It was fortuitous that the person responding to the ad was a police officer rather than child. At trial, I found that the accused believed Katie to be a young girl. In these circumstances, the moral blameworthiness of the offender is not much different than if Katie really had been a young girl. Certainly Mr. Harris cannot take credit for the fact that no child was placed in harm's way.

In my view this goes back to the fact this offence is an inchoate offence which "seeks to prevent the commission of the designated crimes by criminalizing conduct that occurs on the way towards to the commission of the designated crimes" and tries to "close the cyberspace door before the predator gets in to prey" (see Alicandro supra and Legare supra).

Insight and Conditions

As indicated above I am concerned as to whether Mr. Parks has any insight into his conduct in forming an agreement with Sara to sexually assault her daughter. His counsellor, Derek Wright, expressed to the probation officer his concerns as to Mr. Parks' understanding and insight into his conduct. In my view this concern can be addressed by conditions and a lengthy probation order dealing with counselling and assessment, as well as recommending Mr. Parks serve his custodial sentence at Ontario Correctional Institute.

Nature and Extent of Communications

Mr. Parks conduct extended over 24 days with over 200 texts and 30 emails detailing sexual activities involving Sara's daughter. The nature of those emails and texts are very concerning as they provide graphic, disturbing and very detailed descriptions of sexual acts involving an 11 year old girl. This is an aggravating circumstance to take into account on sentencing. I found Mr. Parks was prepared to target a vulnerable child in abhorrent, repugnant sexual activities including sexual intercourse, anal intercourse, fellatio and cunilingus. A further aggravating circumstance is the persistent demonstrated by the telecommunications, which the Crown referred to as "a constancy of purpose".

Comparative Case Law Analysis

I have referred to a number of the decisions provided to me by defence and Crown above. The decisions of the Ontario Court of Appeal in R. v. A.H., [2018] O.J. No. 4105 and the two decisions of Justice Stribopoulos in the Ontario Court of Justice (now of the Superior Court of Justice) in R. v. Gucciardi, [2017] O.J. No. 5974 and R. v. Barnes, [2018] O.J. No 2433, all offer examples of Ontario Courts "post Morrison" imposing sentences emphasizing denunciation and deterrence and requiring custodial sentences in excess of or equal to the 12 month mandatory minimum sentence. The Crown referred me to the decision of Javed J. in R. v. Duplessis, [2018] O.J. No. 6910 (O.C.J.) where the Crown proceeded by summary conviction, the mandatory minimum sentence was six months. In that case, which is fairly similar to the case at bar, Justice Javed imposed a 12 month sentence and determined the constitutional challenge was therefore moot. In R. v. Harris, supra, Justice Pomerance imposed an 18 month sentence followed by three years' probation where the accused communicated online with an officer pretending to be a 15 year old girl.

Determination of Fit and Proportionate Sentence

Balancing all of the aggravating and mitigating factors, it is my view a fit and proportionate sentence in all of the circumstances of this case is 18 months imprisonment. It is my view the facts in this case are more egregious than in Duplessis given the nature and number of sexual acts Mr. Parks suggested in the texts and emails to Sara. A significant aggravating circumstance was Mr. Parks willingness to take advantage of Sara's daughter's issues which he indicated could work in their favour. Further, Mr. Duplessis had sought out an assessment from a psychiatrist and gained insight into his offending behaviour. In the Gucciardi decision where a 12 month sentence was imposed, the accused pleaded guilty, expressed remorse and had taken positive steps towards his rehabilitation.

It is my view the circumstances of Mr. Parks' case are sufficiently serious to warrant a sentence above the mandatory minimum. Mr. Parks sent four photographs of his genitals and a video of him masturbating with instructions to Sara to show them to her daughter to determine her reaction. In addition, I am going to be placing Mr. Parks on probation for a period of three years.

Probation Order and Conditions

In addition to the statutory conditions, most important of which is keep the peace be of good behaviour, which means what it says not to commit any other criminal offences, his probation will be a reporting probation.

Standard Probation Conditions

You will report to a probation officer within five working days of your release from custody and after that at all times and places directed by the probation officer or any person authorized by a probation officer to assist in your supervision.

Your reporting requirement will end when you satisfied your probation officer that you have completed all of your counselling.

You will cooperate with your probation officer and must sign any releases necessary to permit the probation officer to monitor your compliance. You must provide proof of compliance with any condition of this order to your probation officer upon request.

You will live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance.

Counselling and Assessment Conditions

You will attend and actively participate in all assessment, counselling and rehabilitative programs as directed by the probation officer, complete them to the satisfaction of the probation officer including but not limited to:

• Attend and complete any sexual offender programs available through probation or for any other reason that the probation officer deems appropriate.

• Actively participate in the Ministry of Community Safety and Correctional Services Sex Offender Relapse Prevention (SORP) program and/or other sexual offending programs as directed by the probation officer.

• Attend for assessment and counselling in respect of psychiatric and psychological issues.

Internet and Device Restrictions

Do not use any hardware device or software program for the purpose of connecting to or assessing the internet except pursuant to the following restrictions:

i) To be used only for the following purposes:

• Communicating via Facebook with family members and adult friends.
• For employment purposes including finding employment and to obtain housing.

ii) Any device or software used must:

• Maintain and preserve a complete and detailed log or history of all internet sites and pages accessed which you must not delete or alter.
• Not be used in any "private browsing" and "incognito" "in private" or similar mode to avoid or bypass the creation of such a log.

Contact with Minors

Do not associate or communicate with any person under the age of 16 unless directly supervised by an adult person who is legally responsible for the wellbeing of that child or his mother.

Prohibition on Attending Certain Locations

Do not attend a public park, a 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, school ground, playground or community centre.

Child Exploitation Material

Do not access or possess child pornography and not to possess or access any images of children who are depicted to be or appear to be under the age of 18 years or who are naked or portrayed in a sexual manner.

Employment and Volunteer Restrictions

Do not engage in 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. In addition, you are not to be involved with any organization or charity which supports children.

Ancillary Orders

In my view the following ancillary orders should be made:

1. Weapons Prohibition – For a period of 10 years under S. 109 of the Criminal Code.

2. DNA Order – Under S. 487.051 of the Criminal Code.

3. Section 161 Order – Under S. 161.1(a) through (d) of the Criminal Code for a period of 20 years.

4. SOIRA Order – Under S. 490.012 of the Criminal Code, the Sex Offender Information Registration Act - SOIRA for a period of 20 years pursuant to 490.013(1).

Custody Recommendations

I will place a recommendation on the Warrant of Committal that Mr. Parks serve his sentence at the Ontario Correctional Institute. Mr. Parks that is only a recommendation. My hope that is where you will end up. It is a much easier place for you to serve your sentence. But it is only a recommendation. It depends on availability of beds and the assessment by the correctional authorities when you get to Central East Correctional Centre. But it is my view that that would be a good beginning to start this sex offender therapy and assessment and counselling that I believe is necessary for you to protect the public in the future and to ensure that you are not before the Court again.

I will also add a recommendation for protective custody on the Warrant of Committal. Again it will be up to the custodial authorities as to whether or not they will agree to that.

SOIRA Registration Requirements

It is very important that you understand your obligations and responsibilities with respect to the SOIRA order which is the registration with the police. If you move you must advise them and every year as I understand it you must advise the police of your address. But if in the course of that year you move you must notify within a certain period of time. If you do not, you will be charged -- there are penalty provisions. There are sections that are offences under that legislation and the penalties are significant. Judges generally put people in jail for that offence. So it is very important for you to be aware of your responsibilities for a period 20 years. So it is a long time.

You are to report at Durham Regional Police Headquarters at 77 Centre Street, Oshawa, Ontario within five working days of your release from custody.

Final Remarks to the Offender

I guess the last thing I will say to you Mr. Parks. I say this to you with the greatest of respect, you do need based on my findings of fact to make a decision as to where you go with all of this. I am not suggesting as I said to you earlier, there is no need for you to accept responsibility or show me remorse. You are entitled to disagree completely with my findings of fact. But I have concerns for you in the future if you do not start to address the issues that I have identified and I am hopefully giving you some tools and assistance with respect to the probation order that I put you on and hopefully if you get into Ontario Correctional Institute you can start some real counselling with respect the people who are there dealing with the issues that I think you need to address. But again, all your decisions and these are things for you to think about. You are going to have some time to think about those things.

All right. Do you have any questions with respect to any of the orders that I have made?

BRIAN PARKS: No Your Honour.

THE COURT: You understand them all?

BRIAN PARKS: Yes.

THE COURT: All right sir they will be explained to you again when Madam Clerk signs you out. She will be in the process of preparing them and then she will get them to me for my signature and once she has that she will probably have you brought up from downstairs. Good luck to you sir.

BRIAN PARKS: Thank you.

Released: April 4, 2019

Justice P.C. West