Ontario Court of Justice

Date: September 30, 2019

Court File No.: Toronto 18-15000594

Between:

Her Majesty the Queen

— AND —

R.A.

Before: Justice Patrice F. Band

Reasons for Sentence

September 30, 2019

Counsel:

• Ms. J. Stanton, counsel for the Crown
• Mr. S. Pashang, counsel for R.A.

BAND J.:

I. Introduction

[1] These are my reasons for sentence in the matter of R.A., a 38 year-old man who pleaded guilty to the following offences:

• Luring of M.D. (s. 172.1(1)(b) C.C.);
• Making sexually explicit material available to M.D. (s. 171.1(1)(b) C.C.);
• Sexual assault on M.D. (s. 271 C.C.); and
• Luring (of a police officer posing as a fictitious teenage boy) (s. 172.1(1)(b) C.C.).

The Crown proceeded by Indictment.

II. The Facts

[2] The plea was founded on an Agreed Statement of Facts ("ASF") that was filed as a sealed exhibit on consent. The following summary will suffice for sentencing purposes.

Offences involving M.D.

[3] The offences involving M.D. took place between January and September 2016, when M.D. was 15 years old and R.A. was 35 years old. M.D. was having problems at home and the CAS became involved. R.A. and M.D. met on Facebook in January. In July, the CAS became aware of a relationship between R.A. and M.D., and that they had been living together. As a result, the CAS then placed M.D. in foster care and told him to cease contact with R.A. In September, M.D.'s foster parent told the police that R.A. and M.D. were continuing to have contact. M.D.'s smartphone contained evidence of inappropriate communications with R.A. As a result, the CAS altered M.D.'s Facebook login information to prevent him from accessing its content. In October, M.D.'s foster parent reported potential child pornography on M.D.'s phone. Police seized it and discovered that it contained images that M.A. and R.D. had exchanged. They later discovered numerous online communications between the two that were sexual in nature, revealing that the two had had sexual contact and shared sexually explicit material.

[4] In order to maintain inconspicuous contact, R.A. and M.D. used a fictitious Facebook account. Also, on limited occasions, R.A. asked a neighbour to communicate with M.D. to facilitate contact between the two.

[5] Representative excerpts from the chats were included in the ASF. They demonstrate that the chats were explicitly sexual in nature. In them, R.A. used pet names for M.D. and mentioned that he loved him. The images that were shared include photos of men with their penis exposed. One image depicts a close-up of anal penetration, another is a close-up of a male with an erect penis and ejaculate on his stomach.

[6] When living together, M.D. slept in R.A.'s spare bedroom. They frequently attended movies together. Often, R.A. paid for the movie tickets; sometimes M.D. would pay for his own ticket. R.A. made M.D. food. They would spend time watching television and eating meals together. Sometimes he would offer M.D. beer. On those occasions, they would drink one or two cans together. R.A. once gave M.D. his old iPhone for games and said it was an "early birthday present."

[7] While at R.A.'s home, the two engaged in sexual activity. The first three incidents involved M.D. touching R.A.'s penis. During the fourth incident, R.A. performed fellatio on M.D. and then asked M.D. to perform fellatio on him; M.D. did so even though he "didn't want it." In addition, R.A. anally penetrated M.D. without protection on at least two occasions. M.D. told police that it hurt and that he did not want it to happen.

Luring involving officer posing as 14 year-old boy named "Drake"

[8] The luring took place between August 2016 and January 2018 with a hiatus between January and November 2017. The chats make it clear that R.A. believed he was speaking to a 14 year-old boy named "Drake". R.A. proposed that the two meet for coffee, lunch or dinner and a movie. He offered to be there if Drake needed to talk and promised never to hurt him. R.A. suggested that their relations should be kept secret. He suggested that Drake sleep over at his apartment and lie to his parents by telling them he would be staying at a friend's. Those plans fell through and R.A. then offered to save up money to get them a hotel room. By this time, R.A. was 36 years old.

III. The Impact on M.D.

[9] In his Victim Impact Statement, M.D. wrote that he never wanted to engage in sexual activity with R.A. He did not like what R.A. did to him. He wanted his first kiss to be with someone special. He thanked R.A. for pleading guilty and "owning up to it."

IV. R.A.'s Circumstances

[10] The pre-sentence report ("PSR") in this matter contains information about R.A. R.A. is a 38 year-old man. His parents divorced when he was 10 years old. His mother entered into a new relationship with a man who abused alcohol and drugs and became abusive toward her. R.A.'s step-father never abused R.A. However, R.A. was sexually abused by a peer during high school.

[11] R.A. left high school early and has a grade 11 education. He entered the workforce where he was steadily employed in restaurants and, more recently, as a labourer.

[12] R.A. continued to live with his mother and step-father as his mother was ill. In 2012, she died suddenly and unexpectedly. He continues to grieve her death.

[13] R.A. had friends from work, with whom he kept in touch on Facebook. When the charges became public, they ceased having contact. A friend who describes herself as a step-mother toward R.A. remains supportive.

[14] R.A. has been involved in a monogamous relationship with an age-appropriate man since 2017. They have lived together for over two years. Currently, his partner is willing to continue the relationship after R.A. serves his sentence if R.A. makes changes in his life. Whether the relationship will endure is unclear.

[15] In the period leading up to the offences, R.A. spent approximately six hours per day on Facebook. Regarding the offences, R.A. told the writer that he feels very sorry about his treatment of M.D. and regrets his behaviour. He believes he did everything he could to try to help M.D. and never meant to harm him. This is one of the reasons why he chose to plead guilty.

[16] R.A. does not abuse drugs or alcohol.

[17] The PSR writer believes that R.A.'s limited social circle and unstructured lifestyle elevate his risk to re-offend and recommends counseling and restrictions on R.A.'s internet use.

V. Reports of Dr. Julian Gojer

[18] Dr. Gojer assessed R.A. pending sentencing. As a result of some questions that arose during the proceedings, Dr. Gojer provided three reports.

[19] In sum, Dr. Gojer has diagnosed R.A. as a homosexual hebephile – someone with a sexual interest in pubescent males. It is a sub-category of pedophilia. That interest is not exclusive, as R.A. has had fulfilling relationships with age-appropriate males.

[20] During his interviews with Dr. Gojer, R.A. acknowledged having been involved in other chats with pubescent boys and having been in a sexual relationship with male old enough to consent. He declined to identify that person or further specify his age. R.A.'s partner, mentioned above, also indicated a concern that R.A. was engaged in online communications with young males.

[21] R.A. requires counseling to address his sexual urges and is willing to participate as directed. Dr. Gojer places his risk to reoffend in the "lower end of the spectrum." This assessment of R.A.'s risk is "predicated on him engaging in counseling in custody or upon release and with some ongoing supervision upon entering the community."

VI. Applicable Legal Principles

[22] The objectives of deterrence, denunciation and the need to separate sexual predators from society take precedence over other sentencing principles in cases like this: see R. v. Stuckless, [1998] O.J. No. 3177 (C.A.) ("Stuckless 1998"), R. v. D.D., [2002] O.J. No. 1061 (CA), R. v. Woodward, 2011 ONCA 610, and R. v. Stuckless, 2019 ONCA 504 ("Stuckless 2019"). The focus should be on the harm caused to the victim: see Woodward, at para. 76 and Stuckless 2019, at para. 56.

[23] In R. v. Wismayer (1997), 33 O.R. (3d) 225 at p. 241, Rosenberg J.A. wrote that "[i]n view of its extremely negative collateral effects, incarceration should be used with great restraint where the justification is general deterrence."

[24] In R. v. Lacasse, 2015 SCC 64, [2015] S.C.J. No. 64, the Supreme Court of Canada affirmed that, ultimately, a fit sentence is one that is proportional. That is, it must reflect the gravity of the offence(s) and the moral blameworthiness of the offender. Proportionality is determined both on an individual basis – that is in relation to the accused and the offence(s), and by comparison to sentences imposed on other offenders for offences committed in similar circumstances.

[25] In relation to the first branch of the proportionality analysis, the circumstances of the accused are relevant: see R. v. Davies, 2017 ONCA 467. The second factor, known as the principle of parity, requires that like cases be treated alike. This of course is not an exact science. It is difficult and sometimes impossible to find other cases that are similar in all important respects. The Court of Appeal has applied the principle of parity in cases involving sexual offences involving children: see R. v. H.S., 2014 ONCA 323, at para. 56.

[26] While general deterrence, denunciation and separating offenders from the community are the primary principles, they are not the only ones to consider. Parity and the need to exercise restraint are also in play.

[27] In addressing the aggravating factors, I must be sensitive to the potential for overlap regarding the luring and "make available" counts relating to M.D. to the extent that the conduct they represent could also be seen as aggravating of each other and the sexual assault count: see Woodward at para. 48.

VII. The Parties' Positions and Authorities Filed

[28] The Crown seeks a global sentence of six years in the penitentiary as well the following orders:

• SOIRA for life;
• Section 161(1)(a)-(d) for 10 years;
• Section 109 weapons prohibition; and
• DNA.

The Crown reminded the Court that the ss. 271 and 171.1 offences in this case come with mandatory minimum sentences of 1 year and 6 months, respectively. She also pointed to the relevant aggravating and mitigating factors. In doing so, she acknowledged that R.A. did not occupy a position trust relative to M.D.

[29] The Crown recommended the following breakdown: 18 months for each count of luring, to be served consecutively to each other; five years for the count of sexual assault, to be served consecutively to the luring counts; 12 months for the count of making sexually explicit material available, to be served concurrently to the sexual assault. The total, eight years, should be reduced to six owing to the principle of totality.

[30] The Defence suggested that a sentence in the range of two to three years was appropriate and recommended a sentence of two years in the penitentiary to be followed by three years' probation. The Defence pointed to the mitigating factors in this case including the guilty pleas, pre-trial custody and restrictive bail conditions which, until the date of the pleas, included 11 months of house arrest. Since then, R.A. has been subject to a curfew.

[31] The Defence took no issue with the s. 109 and DNA orders sought by the Crown. The Defence sought the minimum SOIRA order (20 years). Relying on R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, the Defence took issue with the s. 161 orders sought by the Crown. In particular, the Defence argued that there was no basis on the facts of this case to support the imposition of orders under ss. 161(1)(c) or (d).

[32] Both parties filed written submissions or casebooks. The Crown's written submissions refer to a number of governing appellate cases and provide a sentencing chart regarding luring and related offences. The Defence filed a number of superior court cases but relied most heavily on R. v. Baggio, [2009] O.J. No. 3808 (S.C.J.), R. v. Jara, [2018] O.J. No. 5004 (S.C.J.) and R. v. Dragos, 2012 ONCA 538, [2012] O.J. No. 3790 (C.A.). The argument is that those cases present more serious offences than those before me. This, in turn, should provide support for the Defence's position on sentence.

[33] In Baggio, the offender was a teacher who abused two victims when he was 27-32 years old. The conduct took place over four years. The victims were 12 and 14 years old at the outset. After trial, the offender was sentenced to four years in the penitentiary. I agree with Crown counsel that little can be gleaned from this case because the facts are not described in sufficient detail. Also, it is of questionable assistance in 2019 because, despite the finding that the offender abused a position of trust, the sentencing judge treated rehabilitation as "a primary focus" (at para. 12).

[34] In Jara, the 24 year-old accused befriended and lured an 11 year-old victim. The two engaged in all manner of sexual behaviour short of intercourse, which had been attempted unsuccessfully. The conduct took place over four months, with a further incident taking place approximately six months later. The offender pleaded guilty mid-trial and was sentenced to three years in the penitentiary. Among the mitigating factors were that the offender was "relatively youthful" and had grown up in a refugee camp.

[35] In Dragos, the 24 year-old offender met the 13 year-old victim online. For approximately three-and-a-half months, the two engaged in thousands of sexually explicit chats. The offender encouraged her to show him her breasts while he masturbated. When she did so, he recorded the images. The victim's mother discovered the chats and told the offender to cease all contact with her daughter. The communications continued and culminated in a meeting where the two engaged in sexual acts short of intercourse. After trial, the offender was sentenced to 23 months' jail and three years' probation.

[36] It is worth noting that the offenders in Jara and Dragos, who were ten years younger than R.A., were relatively youthful.

[37] In Woodward, relied upon by the Crown, the 30 year-old offender lured a 12 year-old girl whose family was in dire financial straits into engaging in sexual activity including fellatio and vaginal intercourse by offering her astronomical amounts of money. At para. 75, the Court stated that "[a]dult predators who seduce and violate young children must face the prospect of a significant penitentiary term." The Court upheld the global sentence of six-and-a-half years after trial but described it as lenient. The sentence was imposed after trial and the offender had a relevant criminal record.

[38] Based upon my reading of the authorities, luring commonly attracts sentences ranging between 12 and 24 months.

VIII. Aggravating Factors

[39] The aggravating factors in this case are the following.

Offences involving M.D.

• M.D. was 15 years old at the relevant times;
• M.D. was vulnerable, living outside of his parents' home and then being placed in foster care;
• The impact on M.D., which may not yet be fully known;
• The significant age gap (20 years);
• R.A.'s overall course of conduct with M.D. (using pet names, going out, gifting an iPhone, providing alcohol, making promises of safety, engaging in sexually explicit chats and sharing graphic imagery) constituted grooming, the purpose of which was to normalize and facilitate the sexual offending;
• R.A. knew that M.D. had been told to cease contact with him;
• By using a fictitious Facebook account and a third party, R.A. engaged in deceitful conduct designed to evade detection;
• The conduct progressed over approximately nine months; and
• The sexual conduct included repeated instances of fellatio and unprotected anal penetration.

Offences involving "Drake"

• Drake was 15 years old at the relevant times;
• The significant age gap (over 20 years);
• The conduct persisted over a period of many months and resumed after a hiatus; and
• R.A.'s conduct (promises of safety and a sympathetic ear) constituted grooming.

IX. Mitigating Factors

[40] The mitigating factors in this case are the following:

• R.A. pleaded guilty;
• R.A. is remorseful for his conduct;
• R.A. has no prior criminal record;
• R.A. has spent 57 days in pre-trial detention which is equivalent to almost three months;
• R.A.'s conditions of bail, involving 11 months of house arrest, have been onerous;
• R.A. has a strong work history;
• R.A. is open to therapeutic intervention;
• R.A. has (limited) support in the community; and
• R.A. suffers from hebephilia, a non-exclusive sexual disorder.

[41] In this case, the parties do not agree that R.A.'s risk – described as being "at the low end of the spectrum" – is a mitigating factor. I am unable to characterize it as such because of the way Dr. Gojer was careful to predicate it on counseling which, to date, R.A. has yet to undertake. With his limited social supports and unstructured lifestyle, it gives rise to concerns about the need to protect children.

[42] R.A.'s guilty pleas and lack of a criminal record are the most meaningful mitigating factors in this case.

X. Fit and Proportional Sentence

[43] Given its nature and the harm it has caused and may yet continue to cause, R.A.'s sexual abuse of M.D. is very serious. Regardless of his self-professed efforts to help M.D. and lack of a desire to harm him, R.A.'s degree of moral blameworthiness is high. The central sentencing principles in this case call for a significant term of incarceration. The Defence position is grossly insufficient to reflect the seriousness of R.A.'s offending and to meet the sentencing principles that must take precedence in this case.

[44] Using Woodward and the other authorities as a guide, I find that a fit sentence for the offence of sexual assault in these circumstances is between three and five years in the penitentiary. The fit sentences for luring M.D. and making explicit material available to him are 18 to 24 months and 6 months, respectively. The fit sentence for luring "Drake" is 12 months.

[45] Owing to R.A.'s guilty pleas, lack of a prior criminal record and the principles of restraint and totality, I would impose the following sentences in this case:

• Count 4: Sexual assault on M.D. (s. 271): 4 years;
• Count 1: Luring M.D. (s. 172.1(1)(b)): 12 months – to be served consecutively to Count 4;
• Count 2: Making sexually explicit material available to M.D. (s. 171.1(1)(b)): 6 months – to be served concurrently with Count 1; and
• Count 5: Luring "Drake" (s. 172.1(1)(b)): 6 months – to be served consecutively to Counts 1 and 4.

I would reduce this global sentence of 5½ years by six months to account for R.A.'s pre-trial custody and onerous bail conditions. The result is a net sentence of five years to be served.

XI. Ancillary Orders

[46] I order R.A. to provide a sample of his DNA and to comply with the requirements of the SOIRA for life. I also impose a s. 109 prohibition.

[47] I find that prohibitions under ss. 161(1)(a)-(d) of the Criminal Code, tailored to respond to his particular circumstances, must be imposed for a period of 10 years in order to minimize the risk that R.A. poses to children: see K.R.J., supra, at para. 48. R.A. used electronic devices and social media as vehicles to meet, groom and lure M.D., to share sexually explicitly material with M.D. and, ultimately, to sexually assault him. He also used devices to lure and groom another person who, he believed, was a 14 year-old boy. This conduct took place over a period of two years. Based on the evidence, R.A. presents an ongoing risk to pubescent males.

[48] For these reasons, the ss. 161(1)(a) and (b) prohibitions will be worded exactly as they appear in the Criminal Code. The s. 161(1)(c) prohibition will contain the following qualification:

…or unless that contact is merely incidental to legally receiving goods or services from a person under the age of 16 years and occurs while in the immediate and continuous presence of another person over 18 years of age.

The s. 161(1)(d) prohibition will contain conditions or exemptions permitting R.A. to use the internet for legitimate purposes such as seeking employment, engaging in appropriate leisurely pursuits and maintaining contact with friends and family.

Released: September 30, 2019

Justice Patrice F. Band