Ontario Court of Justice

Date: January 17, 2020

Central East Region (Oshawa)

Between:

HER MAJESTY THE QUEEN

— AND —

H.O.[1]

Before: Justice F. Javed

Sentencing submissions heard on: December 4, 2019

Reasons for Sentence rendered: January 17, 2020[2]

Counsel:

• F. Stephens, counsel for the Crown
• C. Claxton, counsel for the defendant, H.O.

F. Javed J.:

REASONS FOR SENTENCE

I. OVERVIEW

[1] H.O. was found guilty after trial of five sexual offences contrary to the Criminal Code. The victim in the matter, M.S., was 13 years old at the time of the offences while H.O. was 19. The specific offences were: (i) sexual assault [s.271], (ii) sexual interference of a person under 16 [s.151], (iii) invitation of a person under 16 for sexual touching [s.152], (iv) exposing genital organs to a person under 16 ("the indecent act offence"), [s.173(2)]; and (v) communicating with a person under 16 for the purpose of facilitating the offence of sexual interference ("the child luring offence"), [s.172.1(1)(b)].

[2] Ms. Claxton, on behalf of H.O., requested a pre-sentence report ("PSR") and a Gladue report under s.718.2 (e) of the Criminal Code to canvass the defendant's Indigenous background.

[3] Mr. Stephens, on behalf of the Crown, asked that the conviction for sexual assault be stayed pursuant to the rule in R. v. Kienapple, [1975] 1 S.C.R. 729 ("Kienapple"). That order was made on December 4, 2019, when the parties made submissions on sentence. The following are my reasons for sentence.

A. Overview of Positions of the Parties

(i) Position on Sentence to be Imposed

[4] The Crown proceeded by summary conviction on all matters. All four convictions attract mandatory minimum penalties ("MMP") of imprisonment of varying lengths given the age of M.S. who was 13 years old at the time of the offences. Ms. Claxton challenges the constitutionality of each MMP in this case arguing that a sentence involving a MMP would be grossly disproportionate and seeks an order that the MMP's be declared unconstitutional under s.12 of the Charter of Rights and Freedoms ("Charter") as cruel and unusual punishment. She says a fit global sentence should either be a 5-8 month conditional sentence order ("CSO") under s.742.1 of the Criminal Code or a term of imprisonment in the range of 3-4 months followed by a period of probation. Ms. Claxton did not argue that the MMP's in this case would offend s.12 of the Charter because of reasonable hypotheticals, but instead argued that the personal circumstances of H.O. who has a learning disability, drives the Charter remedy. Moreover, Ms. Claxton did not launch a formal constitutional challenge to s.742.1(b) of the Criminal Code which bars a CSO where there is a MMP. I will have more to say about this later in these reasons.

[5] Mr. Stephens argues that a fit global sentence is 8 months imprisonment followed by a period of probation for 18 months with several ancillary orders, including the mandatory lifetime SOIRA order, as there were convictions for more than one sexual offence. He says the Crown's proposed global sentence does not offend s.12 of the Charter as it is not grossly disproportionate having regard to the circumstances of this case and the circumstances of H.O. Accordingly, he submits the constitutional challenges in this case are moot and do not need to be considered.

[6] Ms. Claxton argued that if the court is inclined to impose a jail sentence on one count, the court could impose conditional discharges for the remaining three counts on a concurrent basis which would avoid imposing a lifetime SOIRA order which would automatically flow from convictions of two or more sexual offences. She argued this would be a harsh consequence for a 19 year-old offender. In lieu of a lifetime SOIRA order, she argued for a two-year probation order with some terms addressing similar terms targeted by a SOIRA order. Mr. Stephens strongly opposes this submission.

(ii) Position on Legal Analysis in this Case

[7] There are three important factors, which drive the legal result in this case. They are: (i) the Crown's election to proceed by summary conviction, (ii) the application of the rule in Kienapple and (iii) the application of concurrent, not consecutive sentences. The first factor involves the exercise of Crown discretion, while the other two factors relate to the positions taken by the parties. It is important to keep in mind that I was not asked to rule on the latter two factors. This serves as important context but also if these reasons are to have any precedential value for other cases. I will discuss these factors below.

(i) The summary conviction election

[8] First, the Crown elected to proceed by summary conviction on all matters, which means by operation of the Criminal Code, the convictions all attract MMP's that are shorter in length then if the Crown had chosen to proceed by indictment. In terms of the s.12 Charter challenges, many courts that have considered the constitutionality of the MMP's in this case have done so through the lens of an indictable MMP, which is longer than a summary conviction MMP. In my view, longer MMP's, which have longer jail sentences, result in different considerations of proportionality. Therefore, if an indictable MMP has been held to violate s.12 of the Charter, it does not automatically follow that the summary conviction MMP for the same offence, is also unconstitutional. A summary conviction MMP would require a separate s.12 Charter analysis. For example, see R. v. B.J.T. [2019] O.J. No. 4503 (C.A.) at paras. 77-78. For purposes of this discussion, there are several cases that have considered the MMP's that are involved in this case but there is no binding legal authority on the summary conviction MMP's involving the invitation to sexual touching offence (90 days), the indecent act offence (30 days) and the child luring offence (6 months). The following is the legal landscape as of January 17, 2020 based on the cases provided to me by the parties and those that I found on my own:

(i) Sexual interference: Section 151(b) of the Code attracts a MMP of 90 days imprisonment. This MMP has been held to be unconstitutional by a summary conviction appeal court in R. v. Drumonde, [2019] O.J. No. 723 (Ont. Sup. Ct.) [45 day CSO imposed]. The parties agree this decision is binding on me and I do not have to consider a challenge to this MMP;

(ii) Invitation to sexual touching: Section 152 (b) of the Criminal Code attracts a MMP of 90 days imprisonment. In R. v. J.G., 2017 ONCJ 881, Justice Gray sitting in the Ontario Court of Justice declared the MMP to violate s.12 of the Charter and imposed a suspended sentence and 12 months probation. See also R. v. R.A., 2019 NWTTC 10, where 90 days imprisonment was imposed. There is a contrasting decision from British Columbia that survived a s.12 Charter challenge to the MMP: R. v. Gumban, [2017] O.J. No. 1530;

(iii) Indecent Act: Section 173(2) of the Criminal Code attracts a MMP of 30 days imprisonment. In R. v. Hartle, [2018] O.J. No. 7028, a judge sitting in the Ontario Court of Justice, imposed a sentence of 60 days imprisonment; and

(iv) Child luring: The child luring offence is set out in s.172.1(1) of the Criminal Code and can be charged in three different ways depending on the age of the victim. This results in three different offences for victims under 18, 16 and 14 years of age. H.O. was convicted under s.172.1 (b) of the Criminal Code which relates to a victim who is under 16 years of age, even though M.S. was 13 years old. Section 172.1(1) (b) is the sentencing provision for all three offences where the Crown proceeds by summary conviction. In all cases, there is a 6 month MMP of imprisonment. In R. v. Cowell, 2019 ONCA 972, the Ontario Court of Appeal considered the constitutionality of s.172.1(2) (a) of the Criminal Code which involves the 12 month MMP for the child luring offence where the Crown proceeds by indictment for a victim under 18 years of age. In a split decision, the majority of the court upheld the MMP while Trotter J.A. dissented, holding that the provision was unconstitutional. In my view, Cowell is persuasive authority but is not binding because it did not address the 6 month MMP where the Crown proceeds by summary conviction for a victim under 16. Further, in R. v. King, 2019 ONCJ No. 366, the court found the 6 month MMP violated s.12 of the Charter and imposed a 1 year CSO followed by 3 years probation. In R. v. Randall, 2018 ONCJ No. 470, the court reached a similar result, imposing a sentence of 90 days imprisonment. Moreover, in R. v. Fawcett, 2019 BCPC 125, the court found the MMP to be unconstitutional and imposed a 6 month CSO followed by two years probation. In summary, the 6 month MMP for the offence involving a victim under 16, has not be dealt with by an appellate court which is binding on me. In R. v. Morrison, 2019 SCC 15, the Supreme Court chose not to rule on the constitutionality of the 12 month MMP where the Crown proceeds by indictment but offered guidance to trial judges on how to approach the constitutionality of the provision, albeit in the context of the indictable, 12 month MMP.

(b) The rule in Kienapple

[9] The second factor which drives an appropriate sentence in this case, is the application of the rule in Kienapple. The sexual conduct in this case spanned a couple of weeks. After meeting each other, M.S. quickly developed a "crush" on H.O., which lead to a few meetings in person and the exchange of sexual content over social media. The rule in Kienapple guards against multiple convictions for the same offence, where there is both a factual and a legal nexus connecting the offences. In this case, the parties agree that the first encounter which lead to "making out", followed by a touching of M.S.'s breast, triggered the Kienapple rule because both acts occurred on the same date and at the same time. For this reason, the Crown invited the court to stay the conviction for the sexual assault (the making out) but not the sexual interference (the touching of the breast) as there was both a factual and legal nexus to these offences. I agree with this position as the sexual assault is arguably less serious of the two. The rule in Kienapple does not prohibit multiple convictions, each in respect of a different factual incident: R. v. Adjei, 2013 ONCA 512, at para. 70, leave to appeal refused, [2014] S.C.C.A. No. 74, citing R. v. Prince, [1986] 2 S.C.R. 480, at p. 491. In R. v. Saliba, 2019 ONCA 22, the Ontario Court of Appeal held that while there was some factual overlap in the nature of some of the sexual activities in which the appellant engaged with the complainant, "the evidence established clear and distinct factual and temporal instances of unconnected sexual activities occurring discretely over different periods of time". I was not asked to consider the rule in Kienapple to the remaining three offences, all of which occurred on different dates.

(c) Concurrent not consecutive sentences

[10] The third driving factor is that the parties agree that I should impose concurrent, not consecutive sentences. Invariably, this impacts a consideration of whether concurrent or consecutive MMP's apply if the s.12 Charter challenges fail. The parties did not directly address this issue, although the Crown's global sentencing position did take this into account. Section 718.3 of the Criminal Code sets out the specific statutory authority that speaks to a court's discretion in respect of imposing consecutive penalties. Despite the fact that H.O. was convicted of multiple sexual offences, there is no statutory provision, which compels the court to impose a consecutive sentence. For example, he was not convicted of sexual offences involving different child victims or involving a child pornography offence in s.163.1, in which case a consecutive penalty would be mandated. In R. v. Wust, 2000 SCC 18, the Supreme Court held that it is important to apply legislation that deals directly or indirectly with mandatory minimum sentences in a manner consistent with the general principles of sentencing. One such principle of sentencing is totality, which avoids unduly long or harsh sentences where consecutive sentences might be imposed: s.718.2 (c). Appellate courts have held that where multiple criminal convictions arise out of the same general circumstances, the correct approach is to identify the gravamen of the conduct giving rise to all of the criminal offences, then consider the total sentence to be imposed. The court should then impose sentences for each offence, which results in the total sentence and appropriately reflects the gravamen of the overall criminal conduct. The court should consider totality to determine if the sentences should be concurrent or concurrent to the other sentences imposed: R. v. Jewell (1995), 100 C.C.C. (3d) 270. In agreeing on a concurrent sentence in this case, the parties implicitly agree that the overall criminal conduct of H.O. was a two-week courting of M.S., which I found culminated with a request for sexual intercourse, which did not come to fruition. During this two-week courting, I found H.O. engaged in discrete criminal acts, all of which were escalating in their severity. As for the MMP's, there is some appellate authority for the proposition that MMP's can run concurrently in the right case. See for example, R. v. Rocheleau, 2013 ONCA 679, [2013] O.J. No. 5137 (C.A.) at para. 35. To repeat, I was not asked to rule on this issue and will proceed on the joint agreement that if the s.12 Charter challenges fail, a concurrent MMP is available. It may be that in other cases, this approach may have to be decided by a court. See also R. v. S.C., 2019 ONCA 199, for a discussion of the totality principle in respect of sexual offences.

B. Approaching a s.12 Charter Challenge to a MMP

[11] The legal test to be applied in considering a s.12 Charter challenge to a MMP involves two steps: Nur, supra. These two steps were described in detail by the Supreme Court in R. v. Lloyd, 2016 SCC 13, at paragraphs 22-23:

22 The analytical framework to determine whether a sentence constitutes a "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, at p. 1073. A law will violate s. 12 if it imposes a grossly disproportionate sentence on the individual before the Court, or if the law's reasonably foreseeable applications will impose grossly disproportionate sentences on others: Nur, at para 77.

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 p. 1073; R. v. Goltz, [1991] 3 S.C.R. 485, at p. 498; R. v. Morrisey, 2000 SCC 39 [2000] 2 S.C.R. 90, at paras. 26-29; R. v. Lyons, [1987]2 S.C.R. 309, at pp 337-38. 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 26; Smith, at pp 1072-73. 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.

[12] In Lloyd, supra, the Supreme Court also offered the following direction to trial judges at paragraph 18:

18 To be sure, it does not follow that a provincial court judge is obligated to consider the constitutionality of a mandatory minimum provision where it can have no impact on a sentence in the case at issue. Judicial economy dictates that judges should not squander time and resources on matters they need not decide. But a formalistic approach should be avoided. Thus, once the judge in this case determined that the mandatory minimum did not materially exceed the bottom of the sentencing range applicable to Mr. Lloyd, he could have declined to consider its constitutionality. To put it in legal terms, the doctrine of mootness should be flexibly applied. If an issue arises as to the validity of the law, the provincial court judge has the power to determine it as part of the decision-making process in the case. To compel provincial court judges to conduct an analysis of whether the law could have any impact on an offender's sentence, as a condition precedent to considering the law's constitutional validity, would place artificial constraints on the trial and decision-making process.

C. The Analytical Approach to the s.12 Charter challenges to the MMP's in this case

[13] Mr. Stephens says the s.12 Charter challenges to the MMP's in this case are moot because the Crown's proposed sentence of 8 months imprisonment, concurrent on all matters (except a proposed 6 month jail sentence which is the maximum sentence permitted by law for the summary conviction indecent act offence), falls at the lowest end of the acceptable range of sentence for H.O.'s overall criminal conduct. In other words, at the first step in the Nur analysis, it is a proportionate sentence which means the court does not have to proceed to step 2. Further, Mr. Stephens says the defence submission for a 5 to 8 month CSO would be an unfit sentence for two reasons. First, it is statutorily barred by s.742.1 (b) of the Criminal Code which bars the availability of a CSO where there is a MMP. Ms. Claxton did not launch a separate Charter challenge to this provision. Second, Mr. Stephens says even if the court were to successfully treat a s.12 Charter challenge in this case as an implicit challenge to s.742.1(b) of the Criminal Code, a CSO in this case would be unavailable by virtue of s.742.1(a) of the Criminal Code. Mr. Stephens says H.O. was convicted of many sexual offences involving a 13 year-old victim and permitting him to serve a jail sentence in the community would be inconsistent with the fundamental purpose and principles of sentencing set out in s.718 to 718.2 of the Criminal Code.

[14] For reasons that I will explain below, I agree with the Crown's latter submission, namely, that a CSO in this case offends s.742.1 (a) of the Criminal Code and would be inconsistent with the fundamental purpose and principles of sentencing in s.718 of the Criminal Code. Viewed this way, I have approached my task by asking if the defence submission of a jail sentence of 3-4 months is a proportionate sentence having regard to all of the sentencing principles. Or, considered differently, I have asked if the Crown's submission for an 8 month concurrent jail sentence is grossly disproportionate having regard to all the sentencing principles. In doing so, I recognize that the only MMP that exceeds the quantum of any acceptable defence sentence is the child luring offence, which attracts a 6 month MMP. For every other offence, there is a MMP of 90 days imprisonment or less, which falls within an acceptable defence range of 3-4 months.

[15] Consequently, given the application of a concurrent sentence and following the direction in Lloyd, supra, I will first consider a proportionate sentence for the child luring offence. If an acceptable sentence for the child luring offence does not materially exceed the 6 month MMP, it may be unnecessary to go any further. However, if the 6 month MMP would be disproportionate in light of H.O.'s circumstances, I will move to the second step in Nur to consider the constitutionality of the MMP for this offence and the other MMP's if necessary.

D. Summary of the Legal Approach in this Case

[16] I have determined that based on the record before me, a fit and proportional sentence for the child luring offence having regard to all of the sentencing principles in the Criminal Code is at least a 6 month jail sentence behind bars. Invariably, this means the 6 month MMP for this offence is not disproportionate as anything less than 6 months would be unfit – on this record. Accordingly, I agree with the Crown that the s.12 Charter challenge to the 6 month MMP in this case is moot and does not have to be considered. Consequently, given the submission for a concurrent jail sentence, the s.12 Charter challenges to the other MMP's in this case are also moot because a CSO for any offence would be unfit. I have determined that the length of each MMP in this case, given the Crown's summary election, squarely falls within an acceptable range of sentence, even if I were to impose concurrent MMP's. Moreover, I do not accept the defence argument to impose conditional discharges for any offences to avoid a lifetime SOIRA order. In my view, that would defeat the will of Parliament and is wholly inappropriate.

[17] With the above framework in mind, I will now turn to my analysis of the legal issues in this case to determine the appropriate length of a global jail sentence that is warranted in this case.

II. ANALYSIS

A. Circumstances of the Offences

[18] The circumstances of the offences were set out in my written reasons for judgment. I will not repeat all my findings but only those that are necessary in fashioning a fit sentence. To the extent it's necessary, these reasons for sentence should be read together with my reasons for conviction.

[19] H.O. was introduced to M.S. by her older sister. M.S. developed a strong crush on H.O. Over the course of two weeks, H.O. and M.S. developed a relationship, which escalated into sexual activity. I found that H.O. knew, when he first met M.S., that she was 13 years old. M.S. reached out to H.O. over the course of the two-week courtship by exchanging text messages and Snapchat videos. The relationship culminated with a request by H.O. to "stick it in a few times" which I found was a proposition for sexual intercourse. This never came to fruition as her older sister intercepted the message and advised their mother and the police. M.S. knew that H.O. was 19 years old. There was a 6 year age difference between the parties.

[20] H.O. testified and denied any sexualized conversation or sexual contact with M.S. I accepted the evidence of M.S., supported by the evidence of her two friends and sister. In summary, my core findings were:

(1) H.O. "made out" with her which included "intense kissing" and touched her breasts once under her clothes, after he invited her to sit on his lap;

(2) H.O. invited M.S. to give him a "hand-job" and a "blowjob". When M.S. said she was scared and didn't know how to do this act, he offered and sent her two videos of himself masturbating. These videos depicted his exposed penis;

(3) H.O. asked M.S. for a sexualized picture of herself and propositioned her for sexual intercourse by asking if he could "stick it in a few times". Neither the request for a "hand-job", "blowjob" or sexual intercourse materialized.

[21] I found that the sexualized conversation and conduct was escalating in nature, even though the parties agreed it was not traditional grooming type behavior. Specifically, the penultimate request to "stick it in a few times" was a request for sexual intercourse. This arose after "making out", touching of her breast, a request for a "hand-job", "blowjob" and graphic videos depicting masturbation, which was seen by a friend of M.S. as well.

[22] While the sexual assault conviction for the "making out" was stayed pursuant to the Kienapple principle, it remains an aggravating factor on sentencing as it was proven beyond a reasonable doubt. It is trite that the Crown must prove aggravating facts beyond a reasonable doubt while the defence must prove mitigating factors on a balance of probabilities: R. v. Gardiner (1982), 68 C.C.C. (2d) 477; R. v. Ferguson (2008), 2008 SCC 6, 228 C.C.C. (3d) 385 at para. 18; R. v. Smickle (2013), 2013 ONCA 678, 304 C.C.C. (3d) 371 at paras. 17-25.

B. The Victim

[23] Mr. Stephens advised that the Crown Attorneys' office reached out to M.S. and her family for victim input on several occasions and no input was forthcoming. In R. v. Woodward, 2011 ONCA 610 at para. 76, the Court of Appeal held that the sentencing compass of a court in a case involving sexual violence against a child should be on the harm caused to the child victim. Unfortunately, this represents an important gap in the record because I know little about the impact of the offences on M.S. or her family. However, I do have the benefit of her testimony in court.

C. The Circumstances of the Offender

[24] The circumstances of H.O. were detailed in the PSR, which is part of the defence materials, filed collectively as Exhibit 1.

[25] At the time of sentencing, H.O. was 20 years old. He resides with his mother, K.C. and his extended family. H.O. is fortunate to have a loving and supportive family.

[26] H.O. completed high school in June 2018 and has volunteered with the Royal Canadian Air Cadets, which he stopped after high school. He received an award for volunteer service. His mother believes he quit the Air Cadets because his peers in high school made fun of him.

[27] H.O. is employed full time with a pool removing company and a snow plowing company. He works six days per week, often with long hours by getting up at 4:30 am and returning home at 8-9:00 pm. According to his mother, he has a strong work ethic, dutifully abides by the house rules and does not engage with any negative peers.

[28] H.O. was diagnosed with a language-based learning disability as a child. A psychological assessment prepared by a psychologist, Cindy Chiasson in 2015, documents that he suffered from over 10 concussions as a child which likely contributed to the disability. An individual educational plan (IEP) was prepared for him, which he followed while at school. The psychological report noted he had difficulty with abstract reasoning skills, struggled to retain and recall auditory and visual information and suffered from poor memory. Details of this evidence were not lead at trial, except for the fact that he testified he had a learning disability. The Crown did not seek to test the information in the report but instead argued, there is a paucity of evidence linking his learning disability to the commission of the offences. I tend to agree with the Crown because there is very little on this issue as H.O. denied the offences at trial and did not discuss the offences in the PSR. Unfortunately, there is no risk assessment, which might speak to this issue, nor an updated psychological assessment. As I will explain, I find that H.O. does have a learning disability but it does not act to mitigate the sentence. It is simply another factor that I must consider as part of his personal circumstances as part of the proportionality analysis.

[29] H.O. does not have any addiction or other mental health issues. According to a Centre for Addiction and Mental Health report dated March 12, 2019, he developed depression and anxiety because of his involvement in the criminal justice system. The PSR notes that a neurologist noted "findings of frontal lobe signs with affective blunting and impulsivity".

[30] Notably, H.O. has a youth record for a criminal harassment offence in 2016. This record was not sealed and is discussed in the PSR. It involved H.O. sending sexually explicit texts and images to a 12 year-old victim. The YCJA finding resulted in a 12 month probation order where he was referred to the Health Intimacy for Adolescents (HIFA) program. The PSR notes he completed 19 sessions and upon completion of the program was deemed a low risk to re-offend. It would appear that H.O. was placed on probation in 2016 and would have completed this program prior to committing these offences. Unfortunately, there is no updated risk assessment, which given the YCJA finding, is an important gap in the record. The PSR author noted that H.O. had "poor recall and limited insight" in relation to these offences, often answering questions with "I don't know". This may be tied to his learning disability but I can't be sure as no evidence was called on this issue. It may also speak to his limited insight.

[31] In terms of rehabilitation, the PSR notes that H.O. is currently working with Ms. Sumeet Shergill, a Behaviour Consultant with York-Simcoe Brain Injury Services at the Centre for Behaviour Health Sciences. Ms. Shergill identified a number of goals, including:

• To understand the nature of brain injury and the impact on activities of daily living interpersonal dynamics and self-development;

• To learn and utilize compensatory strategies for executive functioning deficits in attention and concentration, working memory and information processing;

• To learn and utilize problem solving strategies in stressful environments and or situations;

• To learn and utilize coping strategies for anxiety, depression and irritability.

D. The General Principles of Sentencing

[32] In R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089, the Supreme Court observed that courts have broad discretion in balancing all relevant factors in order to meet the objectives and principles of sentencing. This discretion is constrained by the principles set out in sections 718, 718.1 and 718.2 of the Criminal Code. The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree and responsibility of the offender. Proportionality is determined on 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: Lacasse, supra.

[33] Section 718 of the Criminal Code provides that 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 just sanctions that have one or more of the following objectives:

(1) to denounce unlawful conduct;

(2) to deter the offender and others from committing offences;

(3) to separate offenders from society where necessary;

(4) to assist in rehabilitating offenders;

(5) to provide reparations for harm done to victims and others in the community; and

(6) to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.

[34] A fit sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: R. v. Priest, [1996] O.J. No. 3369, at para. 26. A proportionate sentence, at its core, is an individualized sentence. In R. v. Ipeelee, 2012 SCC 13, Justice Lebel observed (at para. 75) that the fundamental duty of a sentencing judge is to "engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences of the person standing before them."

[35] Section 718.2 of the Criminal Code codifies the principles that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances, the combined duration of consecutive sentences not be unduly long, that an offender not be deprived of liberty if less restrictive sanctions may be appropriate, and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered.

[36] Further, section 718.01 of the Criminal Code codifies the primary focus of the protection of children by mandating that the primary sentencing consideration for an offence that involves the abuse of a child under the age of eighteen are the objectives of denunciation and deterrence. In this case, s.718.01 (ii.1) of the Criminal Code applies because of the age of M.S., but there is no evidence that the other two factors also apply. In particular, there is no evidence that H.O. abused a position of trust and little evidence about the impact of the offence on M.S.

E. Sentencing Sexual Offenders – General Principles

[37] In sentencing offenders for crimes of sexual violence, the law requires courts to focus on the core principles of deterrence and denunciation: R. v. E.C., 2019 ONCA 688 at para. 12 and R. v. Al-Shimmary, 2017 ONCA 122 at para. 6.

[38] Courts have repeatedly endorsed the need to separate sexual offenders from society, which requires courts to impose jail sentences: R. v. D.D., [2002] No. 1061 (C.A.); R. v. M.(D.), 2012 ONCA 520; R. v. Bauer, 2013 ONCA 691; R. v. Miller, 2016 SKCA 32; R. v. Hajar, 2016 ABCA 22; R. v. Hussein, 2017 ONSC 4202; Woodward, supra.

[39] The Ontario Court of Appeal has characterized the sexual abuse of a child as an act of both physical and psychological violence and has held that adults who offend against children should therefore expect significant penalties. In M. (D.), supra, Justice Feldman helpfully summarized the guidance to sentencing judges from D.D., supra (at para.38):

1. Our children are our most valued and our most vulnerable assets.

2. We as a society owe it to our children to protect them from the harms caused by sexual predators.

3. Throughout their formative years, children are very susceptible to be taken advantage of by adult sexual offenders and they make easy prey for such predators.

4. Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences.

5. Three such consequences are now well recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

6. Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.

[40] In D.D., supra, the Court of Appeal held at para. 44: "As a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms".

[41] Given my findings in this case, I am of the view that the sentencing range in D.D. supra, do not apply. Nor does the Crown suggest this range applies as H.O. did not abuse a position of trust and did not engage in persistent sexual abuse. Instead, I find the range endorsed by Justice Code in Hussein, supra is more apt where he wrote at para. 35: "In the most mitigated cases, sentences of 90 days imprisonment were imposed. In the more aggravated cases, especially in those involving breaches of trust and some repetition, sentences between six months and fifteen months were imposed."

[42] As noted above, I will start with a consideration of a fit sentence for the child luring offence but before I do, I will pause to observe some general principles that flow from the other offences.

F. The Sexual Interference and Invitation to Sexual Touching Offences

[43] H.O. sexually interfered with M.S. by touching her breasts and invited her to sexually touch him. The Court of Appeal in B.J.T., supra said the following about the sexual interference offence:

83 However, sexual interference of a child is a very serious offence. The moral blameworthiness on the part of the adult is because it is the adult's role to protect the child, not acquiesce where the child may not appreciate the impropriety of the proposed action because of its sexual aspect. Nor should the effect of sexual interference on the child be minimized. In R. v. A.B., 2015 ONCA 803, 333 C.C.C. (3d) 283, at para. 45, I stated:

[T]he protection for children is not simply from sexual exploitation but from any sexual contact or the invitation to sexual contact with adults. Parliament viewed the protection to be necessary because of the inherent power imbalance that undermines consent, and because of the physical and psychological consequences of a sexual encounter between a child and an adult stemming from that imbalance.

[44] In E.C., supra, the Court of Appeal held that there is a "broad range" of sentences for this offence because it covers a wide range of conduct. E.C., supra, is also instructive because it addresses a submission that was made by Ms. Claxton, namely that the closeness in age acts as a mitigating factor on sentence. Justice Nordheimer held at para. 14 that the proximity in age is not a mitigating factor. He noted that while a greater age discrepancy can act as aggravating, the opposite is not true. Moreover, Ms. Claxton also argued that M.S. initiated the relationship, which lead to the sexual contact. Justice Nordheimer rejected this argument as well holding at paragraphs 13-14, de facto consent of an underage complainant is not a defence and cannot be a mitigating factor in a case of sexual interference: Criminal Code, s. 150.1(1); R. v. Hajar, 2016 ABCA 222, 39 Alta. L.R. (6th) 209, at para. 1; R. v. Scofield, 2019 BCCA 3, at paras. 8 and 38. In my view, the invitation to sexual touching offence attracts the same sentencing principles, and the same level of moral blameworthiness. Here, H.O. asked M.S. to perform invasive sexual acts on him. In B.J.T., supra, the Court of Appeal held: "[T]he fact that a child consents or even initiates the activity does not remove the trust relationship or the obligation of the adult to decline the invitation". The core principles of deterrence and denunciation are paramount. H.O.'s conduct doesn't rise to the level of seriousness of the facts in E.C., supra and B.J.T., supra. In R. v. M.L., 2016 ONSC 7082, the decision relied on by Justice Code in Hussein, supra, a 59 year-old first offender touched the bare breasts of a 15 year-old victim. Linhares de Sousa J. imposed a sentence of 9 months imprisonment. Of course, this case involves more sexual conduct and does not involve a breach of trust. In Hussein, supra, a 27 year-old offender was in a "boyfriend-girlfriend" relationship with a 13 year-old victim. The two had sexual intercourse. After trial, Justice Code imposed a sentence of 15 months for the single act of sexual intercourse. This sentence was considered in the broad context of a case where the parties considered themselves to be in a "relationship" even though the victim was not legally able to consent and this was known to the offender. Again, there is no doubt that H.O. knew M.S. was 13 years-old right from the outset and he was convicted of more than one offence.

G. The Indecent Act Offence

[45] H.C. sent M.S. two videos of himself masturbating which resulted in the indecent act offence. In R. v. Alicandro (2009), 2009 ONCA 133, 246 C.C.C. (3d) 1 (Ont. C.A.), the Court of Appeal explained (at paragraph 45) that the indecent act offence in s. 173(2) was "enacted to protect children against sexually exploitative conduct". H.C. made a conscious decision to make and send sexually explicit videos. They were destined for M.S. and meant to influence her decision to engage in sexual acts with him. This is a serious offence and attracts deterrence and denunciation. In terms of a sentencing range, the court in Alicandro observed that historically the offence could only be prosecuted summarily and carried a maximum sentence of six months with no minimum. As a result, the range of sentence for this offence is 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. In R. v. R.C. [2016] O.J. No. 5267, Justice Schreck sitting as a Judge of the Ontario Court of Justice (now of the Superior Court) reviewed a number of sentencing decisions for this offence and observed "[T]he 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. In this case, there is a 30 day MMP with the maximum of 6 months imprisonment where the Crown proceeds by summary conviction.

H. The Child Luring Offence

[46] The child luring offence involved H.O. using a telecommunication device (a smartphone) to proposition M.S. to engage in sexual intercourse. I have kept in mind that the sexual intercourse did not occur. In Cowell, supra, Benotto J.A. writing for the majority of the Court of Appeal reaffirmed the purpose of the child luring offence while upholding the constitutionality of the indictable MMP. At paragraph 120, she held inter alia:

… [t]he social reality is that 'access to the Internet among Canadian children is now almost universal' and 'predators lurking in cyberspace, cloaked with anonymity are able to meet, groom and sexually exploit vulnerable children through telecommunication: Morrison, at para. 2. Children are defenceless to the sexual exploitation of adult predators, who are only one click away: R. v. Woodward, 2011 ONCA 610, at para. 72. The harm caused by this offence is often life-altering for innocent children: Morrison, at paras. 3, 153; Woodward, at para. 76. These considerations factor into the determination of a s.12 Charter breach.

While this case did not involve H.O. using the internet to prey on M.S., the gravamen of the offence is to intentionally communicate with a child with the purpose of committing one of the listed offences, which here, includes sexual interference. More often than not, this includes adults who troll the internet lurking for vulnerable children but this does not exclude an adult who chooses to communicate with an underage victim who is not on the internet, for the purpose of committing a criminal offence. Here, H.O. chose to communicate with M.S., who he knew was only 13 years old and tried to proposition her into having sexual intercourse with him. The child luring offence is a preparatory offence and criminalizes attempted behavior. It is more serious if the act actually comes to fruition but it does not diminish the seriousness of the attempt. Further, Benotto J.A. held at para. 121 … "predators who lure children through telecommunication receive a 'punishment that reflects the gravity and seriousness of the offence': Morrison, at paras. 2-3. Luring attracts a high degree of moral blameworthiness, especially since its victims are 'one of the most vulnerable groups within Canadian society – our children': Morrison, at para. 153."

[47] With the above legal background in mind, I will now turn to the aggravating and mitigating factors in this case.

I. Aggravating and Mitigating Factors

[48] The Supreme Court has reminded trial judges to not let one factor dominate a sentencing analysis. All factors must be carefully balanced in consideration of a fit sentence. As Justice LeBel in Nasogaluak held (at para. 43):

No one sentencing objective trumps the others and it falls to the sentencing judge to determine which objective or objectives merit the greatest weight, given the particulars of the case. The relative importance of any mitigating or aggravating factors will then push the sentence up or down the scale of appropriate sentences for similar offences.

[49] The aggravating factors include: First, M.S. was 13 years of age which is statutorily aggravating by virtue of s.718.2 (a)(ii.1) of the Criminal Code. Second, there were numerous offences, not just one, including kissing, touching of her breast, requests for sexual acts, sharing graphic sexual videos and the penultimate request for intercourse. Third, H.O. has a related youth record for engaging in similar conduct with a child victim, which is aggravating because it speaks to his moral blameworthiness. After completing the rehabilitative program, H.O. continued to reoffend. This also speaks to his limited insight into his offending conduct. The fact that he knew right from the outset that M.S. was 13 years old is more blameworthy than if, for example, he failed to take reasonable steps to ascertain her age. See for example, Hussein, supra, at para. 33. H.O. did not plead guilty which not an aggravating factor but it also speaks to his limited insight: R. v. Shah, 2017 ONCA 872, [2017] O.J. No. 6141 (C.A.) at para 8. This is also important because it addresses the need to specifically deter him and encourage his rehabilitation. Fourth, Mr. Stephens argues while H.O was not "grooming" M.S., his acts were escalating in their severity, which is aggravating. I agree. H.O.'s exploitative conduct took on the guise of a boyfriend-girlfriend relationship, which a young victim might perceive as "normal" and innocent. It started with hugging and kissing and progressed to sexual touching, ending with a request for sexual intercourse. This is the kind of conduct that needs to be deterred. An adult is expected to not engage in this kind of activity. A fifth and potential aggravating factor, which is missing, is the impact of the offences on M.S. She chose not to provide a victim impact statement.

[50] The mitigating factors are as follows: First, H.O. is a 19 year-old adult offender, thus while he is legally an adult, he is still young and inexperienced. These offences are his first adult convictions, which requires me to consider the principle of restraint: s.718.2 (d). Second, H.O. has the full support of his family and community as evidenced by his many letters of support, filed as part of Exhibit 1. Third, H.O. has taken positive steps towards rehabilitation with Ms. Shergill to address his learning disability, but it does not speak to any insight for the criminal offences. Section 718.2 (e) provides that a court should examine all available sanctions other than imprisonment that are reasonable in the circumstances and are consistent with the harm done to victims, especially as it relates to the circumstances of Aboriginal offenders. I will discuss the Gladue impact below. I have construed the restraint principle broadly to consider the shortest possible jail sentence that is proportional to the circumstances of the case and the offender.

[51] Ms. Claxton argued that H.O.'s learning disability from his brain injury is a strong mitigating factor because his "judgment was impaired". It follows that he wouldn't have morally (and legally) understood the impact of his decision to become sexually involved with a 13 year-old child. Mr. Stephens says there simply is no evidence of this. While it may be tempting to speculate this might be the case, on this record, I agree with the Crown's position. There are two ways to evaluate this submission. The first is to see if there is evidence of a mental illness and second, the impact of H.O.'s learning disability. In order for a "mental illness" to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct. See for example, R. v. Priorello, 2012 ONCA 63, [2012] O.J. No. 650 (C.A.) at para. 11; R. v. Robinson, [1974] O.J. No. 545 (C.A). Respectfully, there is simply no evidence before me that H.O.'s judgment was impaired when he engaged in his criminal conduct, which might be attributed to a mental health issue. I have trouble with this submission because H.O. did not testify to this during the trial as he denied any sexualized contact with M.S., and he did not speak to it in the PSR after he had been convicted. I have been careful to not treat his rejected trial evidence as aggravating on sentence but this does not mean it is a mitigating factor, which must be proven on a balance of probabilities. I simply don't know why H.O. chose to engage in his aberrant conduct: Priorello, supra, at para. 11.

J. H.O.'s Learning Disability and Moral Blameworthiness

[52] Moreover, H.O.'s learning disability, on this record, is not a mitigating factor either. There is no evidence before me that H.O. committed the acts because of his learning disability. Nor is there an inference of such. Instead, H.O.'s learning disability remains a relevant factor to consider as part of a proportional sentence because it is unique to H.O.: R. v. Davies, 2017 ONCA 467 at para. 5. I have not ignored it. While I was not provided any cases about diminished cognitive capacity, there is authority, which says this factor can speak to moral blameworthiness. For example, see R. v. Soosay, 2012 ABPC 220 at para. 25; R. v. Ramsay, 2012 ABCA 257 and R. v. Beach, [2019] O.J. No. 1911 (Ont. Sup. Ct.). In Beach, supra, Justice Patterson observed:

22 Cognitive defects may result in the accused being unable to comprehend the causal link between punishment and the crime for which he has been convicted and in such a case, it is important that both general deterrence and denunciation be greatly mitigated: see R. v. Ramsay, 2012 ABCA 257, at para 24. C.C. Ruby, Sentencing (6th ed.)(Markham: Buttersworth, 2004) at paras. 5.246 and 5.256 was referenced by the court in R. v. Belcourt, 2010 ABCA 319, at para. 8 that provides:

'That a sentence can be reduced on psychiatric grounds in two instances: (1) where the mental illness contributed to or caused the commission of the offence; or (2) when the effect of imprisonment or other penalty would be disproportionately severe because of the offender's mental illness.'

[53] There is no evidence before me that H.O.'s criminal conduct is less morally blameworthy because he didn't understand what he was doing was both morally and legally wrong because of his disability. In fact, on this record, there may be an argument which points to the opposite direction because of his prior youth record which addressed a similar issue. H.O. had completed 19 sessions of the HIFA program, which taught him about health intimacy issues. He was deemed a low risk to reoffend which I surmise meant he did well in the program. However, on the heels of completing this program, he chose to engage with a 13 year-old child and did so repeatedly in an escalating fashion. This is deeply troubling and calls into question the low risk to re-offend opinion. While his learning disability remains a neutral factor in sentencing, I am prepared to find that a longer jail sentence would have a disproportionate impact on him because of his learning disability. As a 19 year-old adult, an unduly long prison sentence will deprive him of support from his family and the community, which I'm sure is critical in working through his disability.

K. Collateral Consequences

[54] A proportionate sentence may require an examination of the collateral consequences that may arise from the commission of the offence, the conviction for the offence, or the sentence imposed: R. v. Suter, 2018 SCC 34, at para. 47. A collateral consequence is not necessarily aggravating or mitigating within the meaning of s.718.2 (a) of the Criminal Code as these consequences are not related to the gravity of the offence or the level of responsibility of the offender. Collateral consequences are integrally connected to the goal of an individualized and proportionate sentence because the focus shifts to concerns about whether the impact of the sentence would have a more significant impact on the offender because of the offender's circumstances: Suter, at para. 48. These consequences "cannot be used to reduce a sentence to a point where the sentence becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender": Suter at para. 56.

[55] In this case, an important collateral consequence that will flow from any jail sentence is that H.O. will likely lose his employment and not benefit from his family support. Moreover, he will lose the services of Ms. Shergill, his Behaviour Consultant at the York-Simcoe Brain Injury Services, at least for the period of time that he would be imprisoned, if such were the case. I can reasonably infer that he will not get the same type of focused counselling while imprisoned. Finally, I have also considered the collateral consequence of a lifetime SOIRA order which will automatically follow with one more than one conviction for a designated offence: s.490.013(2.1), Criminal Code. Ms. Claxton says it will be cruel to encumber H.O. with such an order for the rest of his life. She says imposing conditional discharges can avoid such consequence: R. v. Jayswal (2011), 2011 ONCJ 33, 266 C.C.C. (3d) 388 (Ont. C.J.) Respectfully, I do not agree. Parliament chose to enact legislation to specifically target repeat sexual offenders. H.O. committed more than one sexual offence, thus fits the definition of a repeat sexual offender. One objective of a SOIRA order is meant to keep the authorities aware of where a sexual offender resides. This is appropriate in this case. Section 730 of the Criminal Code permits a court to impose a discharge instead of a conviction but a discharge in this case, for any offence, would strongly be contrary to the public interest. It would be disproportionate to the circumstances of the offences and the offender. I do not accept the defence submission on this point and will not impose a conditional discharge.

L. H.O.'s Indigenous Lineage

[56] Ms. Claxton also relied on the principles enunciated in s.718.2 (e) of the Criminal Code arguing that H.O.'s Indigenous lineage mandates a rehabilitation-oriented approach to sentencing. Section 718.2 (e) is a remedial provision, which "places an affirmative obligation on sentencing judges to inquire into the relevant circumstances of the offender, including the types of sentencing procedures and sanctions which may be appropriate because of his or her particular Aboriginal heritage or connection; either from the parties or on his or her own initiative". See R. v. Macintyre-Syrette, 2018 ONCA 706 at para. 8, R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at paras. 38, 54. On this basis, a Gladue report was requisitioned. Unfortunately, one could not be prepared which doesn't mean that H.O. doesn't benefit from Gladue principles. It just means, the principles work in a different way, in this case.

[57] In E.C., supra, the Ontario Court of Appeal reminded that "more is required than a bare assertion of aboriginal status" citing R. v. F.H.L. 2018 ONCA 83 at paras. 38-47; R. v. Monckton; 2017 ONCA 450 at paras. 114-117; Ipeelee, at paras. 59-60. Unfortunately, the record on the Gladue factors is thin and does not permit me to meaningfully assess this issue. The defence did not call any evidence on this issue, thus I am left with the letter in Exhibit 1 from Aboriginal Legal Services ("ALS") in which H.O. told the author he was "pretty sure" his mother was involved with Indigenous culture but he was unable to speak to his own experiences as an Indigenous person. ALS also spoke to Mrs. O. who advised that her mother had Indigenous roots and H.O. took Ojibway language classes in elementary school but was not raised with Indigenous culture. Based on this information, there is very little beyond the assertion of Aboriginal status, which does not permit me to explore other sentencing options. While I have not ignored this factor entirely, it has limited weight in this case. Indeed, I am of the view that the Crown's sentencing position appropriately takes this factor into account.

M. Conditional Sentence & Sexual Offenders

[58] Ms. Claxton submits that I should consider imposing a 5-8 month CSO in lieu of a jail sentence. For the reasons explained above, Mr. Stephens strongly opposes a CSO. Section 742.1 of the Criminal Code sets out the conditions precedent that must exist for a CSO to be legally viable. Here, a CSO is only legally available for the sexual interference offence as the MMP was declared unconstitutional in Drumonde, supra. I would have to find that the other MMP's violate s.12 of the Charter to be able to consider a CSO for the remaining offences. Section 742.1 of the Criminal Code provides that a CSO must be consistent with the fundamental purpose and principles of sentencing. In R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, the Supreme Court reminded that a punitive CSO with terms such as house arrest can have a deterrent effect on an offender. However, I think a CSO can distort the denunciatory message to would be offenders who sexually assault children by allowing the offender to spend their sentence inside their home. I am supported in this view by the Court of Appeal who held in R. v. A.F.R., 2007 ONCA 114, [2007] O.J. No. 540 (C.A.), at para. 2: "[T]his court has repeatedly held that a conditional sentence should rarely be imposed in cases of sexual touching of children by adults, particularly where, as here, the sexual violation is by a person in a position of trust". In R. v. M. (P.) (2002), 155 O.A.C. 242 (Ont. C.A.), the trial judge imposed a CSO, which was reversed by the Court of Appeal and converted into a lengthy reformatory sentence. Considering all the circumstances, this is not a rare case because H.O. is being sentenced after trial and on a record where there is no evidence of his insight into his offending conduct. Even with his age and learning disability, a CSO would be fundamentally inconsistent with the purpose and principles of sentencing. It would be an unfit sentence for the sexual interference offence and also unfit in respect of the other offences.

III. THE SENTENCE

[59] A proportional sentence requires examination of similarly situated sentences imposed for similarly situated offenders: s.718.2(b). In her written materials, Ms. Claxton pointed to a number of cases involving similar cases to juxtapose a proportionate range of sentence in this case. Respectfully, I am not persuaded by her reference to cases where the Crown chose to proceed by indictment because the sentence that was ultimately imposed was influenced by a s.12 Charter challenge to an indictable MMP. As noted above, an indictable MMP involves a longer jail sentence, which impacts a consideration of proportionality and in some cases, parity. In my view, the cases where the Crown chose to proceed by summary conviction are more persuasive because that is the legal record before me.

[60] With respect to these child luring and sexual interference and invitation to sexual touching offences, I am of the view that the appropriate sentencing range, on this record, is 9-12 months imprisonment. While I am mindful of the adage to not slavishly follow a range of sentence (Lacasse, supra), I have chosen to identify an appropriate range of sentence to determine the positions of the parties on the first step of the Nur analysis. The purpose of the child luring offence was reaffirmed by the Court of Appeal by Benotto J.A. in Cowell, supra. She reminded that a clear message needs to be sent to offenders: "if they prey upon innocent children … [they] will pay a heavy price: Woodward, at para. 73. In this case, H.O. does not have the benefit of many mitigating factors where courts imposed less severe sentences. For example, he did not plead guilty and spare three young witnesses from testifying. While his constitutional right to have a trial is not an aggravating factor, the absence of a guilty plea is not a mitigating factor. The evidence establishes H.O. has no insight into his criminal conduct. While I accept H.O. suffers from a learning disability, there is no evidence before me that this disability impacted his conscious decision to engage with a 13 year-old child for two weeks by hugging and kissing her, sexually touching her and culminating with a request for sexual intercourse. For this reason, his moral blameworthiness remains high, especially because he engaged in this conduct after completing a program where he would have known about the moral boundaries of intimacy with partners. This sentencing range is proportional to the circumstances of the offender.

[61] The sentencing range of 9-12 months imprisonment is also proportional to like-minded cases. Mr. Stephens pointed to R. v. Kazi, 2019 ONCA 167, where the Court of Appeal sentenced a first offender who engaged in sexually suggestive communications with a 12 year-old victim who was known to him. He requested sexual photos and sexual activity. The requests did not come to fruition but for the luring offence, the Court of Appeal imposed a sentence of 6 months imprisonment. I don't know much about the full set of facts in Kazi, supra, but Mr. Stephens submitted that unlike here, the luring was not preceded with or resulted in any touching. Here, there was sexual touching of the breast and the transmission of sexualized videos. In R. v. Jaffer, 2018 ONCJ 1271, the court sentenced a 22 year old first offender who pled guilty to responding to an online ad of someone he thought was 15-years-old but who was a police officer. He was arrested when he attended the planned meeting. He had a supportive family, suffered from depression and anxiety and was on the autism spectrum. Importantly, he was deemed a low risk to re-offend with opinion evidence. He was sentenced to 6 months imprisonment and 18 months probation. There is no such risk assessment in this case, nor a guilty plea. In R. v. Dominaux, 2017 CarswellNfld 11, the court sentenced a 26 year-old first offender who pled guilty to luring a 14 year-old victim. He sent her an abundance of texts and Skype messages including explicit images of the offender. This resulted in several in person meetings where sexual activity took place. For the luring offence, the offender received an 11 month jail sentence.

[62] I have carefully reviewed the luring cases cited to me by Ms. Claxton and they can easily be distinguished because they all involved guilty pleas where the offender was luring someone online. In other words, there was no "real" victim. More significantly, there was evidence before the sentencing court that the offender suffered from mental health issues, which caused the offender to commit the offence and there was evidence the offender presented a low risk to reoffend. Unfortunately, this evidence is not present in this case. In all cases, these factors motivated the courts to find that the 6 month MMP was unconstitutional and impose lesser sentences. For example, R. v. Fawcett, 2019 BCPC 125 (6 month CSO, 2 years probation); R. v. King, 2019 ONCJ 366 (1 year CSO, 3 years probation) and R. v. Randall, 2018 ONCJ 470 (90 days imprisonment).

[63] Having determined that a sentence of imprisonment is necessary on this record, I have also considered the defence submission for a CSO in the range of 5-8 months or even longer with punitive conditions. I adopt my comments above as they relate to the suitability of CSO's in cases of sexual offenders. I also rely on the guidance from the Ontario Court of Appeal in R. v. Rafiq, 2015 ONCA 768 and R. v. Folino (2005), 77 O.R. (3d) 641, where the court stated that the offence of child luring must be dealt with seriously to protect vulnerable children from predators who use the Internet to lure them into situations in which they can be exploited and abused. The court wrote: "[T]he sentencing objectives of denunciation and deterrence require a sentence of incarceration in most cases. A conditional sentence will only be appropriate in the 'rarest of cases'". In my view, given the record before me, a CSO does not constitute a rare case. There are simply too many aggravating factors and the strength of the mitigating factors are not enough to make this a rare case. I find a CSO for any offence on this record would be disproportionate and unfit.

[64] For the above reasons, and balancing the aggravating and mitigating factors in this case, I would have imposed a sentence of 9 months imprisonment, which is at the bottom end of the appropriate range. However, I will instead impose a sentence of 8 months imprisonment, on a concurrent basis, which represents the Crown's global position. In my view, this was a principled and proportional sentence based on the record before me. I will not deviate from a lesser sentence out of concerns of fairness. This sentence reflects the mitigating factors in this case as well as my conclusion that an unduly long prison sentence will have a disproportionate impact on H.O.'s learning disability. I have considered the minimum jail sentence of 6 months for the luring offence, but this record does not justify imposing the minimum penalty. In support of this conclusion, I rely on my reasons cited above and will not repeat them. Having arrived at this conclusion, and considering the first step in the Nur analysis, I agree with the Crown that the second step in Nur is moot. Therefore, I do not have to consider a s.12 Charter analysis of the 6 month MMP as an 8 month jail sentence is not grossly disproportionate to the circumstances of H.O and the circumstances of this case. I was not asked to consider reasonable hypothetical sentences for this offence, thus will decline to do so. It would be unfair to do so in a vacuum as neither party addressed this issue either in their written materials or in their oral submissions.

[65] Accordingly, the s.12 Charter challenge to the 6 month MMP, as framed on this record, is therefore dismissed.

[66] Turning next to a proportional sentence for the remaining offences. Again, the gravamen of the criminal conduct in this case involved less serious sexual activity culminating with a request for sexual intercourse. H.O. sought to take on the role of a boyfriend to a child victim. He communicated with her, hugged and kissed her and sent her graphic sexual videos, exposing his penis while he masturbated. He asked for more invasive sexual activity, which, thankfully never came to fruition. These offences all attract the principles of deterrence and denunciation, just like the child luring offence. Given H.O.'s young age, immaturity and some positive steps towards addressing his learning disability, I agree with the parties that a long prison sentence would be crushing which justifies a concurrent sentence based on the principles of restraint and totality.

[67] All of the offences warrant jail sentences behind bars. A CSO would be an error in principle and unfit. In R. v. R.(M), 2009 ONCA 912, the Court of Appeal upheld a 90 day jail sentence for an offender who pled guilty to touching a child victim under her underwear on multiple occasions. The court said: "it was at the low end of the range but not demonstrably unfit". Here, H.O. touched M.S. on her bare breast and then invited her to perform oral sex and digitally penetrate him. He sent her graphic videos depicting the act after she waivered in her response. He then sent her two videos of himself exposing his penis and masturbating. It was clear he wanted her to see himself masturbating and she did. This is serious conduct, which needs to be deterred. Applying the principle of totality, I have concluded that a fit sentence for the sexual interference and invitation to sexual touching offences is 6 months imprisonment, on a concurrent basis. This sentence far exceeds the 90 day MMP for the invitation to sexual touching offence.

[68] As for the indecent act offence, the two videos were graphic and meant to be taken seriously to further a sexual act on H.O. This too needs to be deterred in an environment where sending sexually explicit videos is easy and difficult to detect. In R. v. Hartle, [2018] O.J. No. 7028, the court imposed a 60 day sentence on a first offender who exposed his penis to a child victim. The court did not have to consider a s.12 Charter challenge to the 30 day MMP. In this case, while H.O. did not expose his penis in person to M.S., he sent her two videos in which his penis was exposed, which is no different than exposing one's penis in person. I find that a sentence of 90 days imprisonment is warranted for this offence. This sentence far exceeds the 30 day MMP. I have considered the Crown's submission for the maximum 6 month sentence on the indecent act offence, but in my view, this isn't warranted given this record.

[69] Given my conclusions on the length of jail sentences for the remaining offences, I agree with the Crown that it is unnecessary to proceed to step 2 of the Nur analysis for the MMP's involving the invitation to sexual touching offence, which attracts a 3 month MMP or the indecent act offence which attracts a 1 month MMP. The sentences I will impose are not grossly disproportionate to either MMP, especially because I am being asked to impose concurrent sentences, on a global basis. Accordingly, the s.12 Charter challenges for the remaining two MMP's are also dismissed.

IV. CONCLUSION

[70] In conclusion, H.O. will be sentenced to a global jail sentence of 8 months. This is made up with an 8 month sentence for the child luring offence, 6 months each for the invitation to sexual touching and sexual interference offences on a concurrent basis and 90 days for the indecent act offence, also on a concurrent basis. For all the reasons above, I find the global range of sentence proposed by Ms. Claxton (3-4 months) unfit and disproportionate to the circumstances of H.O. and the facts of this case.

[71] Following the 8 month jail sentence, there will be a period of probation for 18 months. The probation order will run on a concurrent basis for all the offences. I will invite submissions on appropriate terms, which of course, will include terms restricting contact with M.S., her sister, M.S., Q.G., B.F. and N.B. Counseling will figure prominently in the probation order.[3]

[72] There will be the following ancillary Orders:

(i) an Order to comply with the Sex Offender Information Registration Act (SOIRA) under s.490.013(2.1) of the Criminal Code for life as "sentences" were imposed for designated offences;

(ii) an Order (on consent) pursuant to s.161 (b) of the Criminal Code for a period of 5 years, which will prohibit H.O. from "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". This proceeded on consent but is nevertheless warranted in this case. See R. v. Schulz, 2018 ONCA 598, [2018] O.J. No. 3526 (C.A.);

(iii) an Order for H.O.'s DNA pursuant to s.487.051(1) of the Criminal Code, in respect of all four offences as they are primary designated offences which attract a mandatory order[4]; and

(iv) an Order pursuant to s. 743.21 of the Criminal Code prohibiting communication with M.S. her sister, M.S., Q.G., B.F. and N.B., while H.O. serves his custodial sentence.

[73] I would like to thank counsel for their written materials and submissions, which were of great assistance to the court.

[74] Finally, I will direct the clerk of the court to send a copy of these reasons to the institution that will accept H.O., to assist with classification. In particular, the court strongly encourages the institution to give effect to a sentencing regime that will be conducive to H.O.'s age and learning disability.

Released: January 17, 2020

Signed: "Mr. Justice F. Javed"

Footnotes

[1] There is a publication ban under s.486.4 of the Criminal Code.

[2] The trial proceedings were held on April 23, 24, 25, 2019. My reasons for conviction were rendered on August 7, 2019.

[3] After submissions, the probation term imposed was counselling as directed by the probation officer, especially as it may be related to counselling for a learning disability. Ms. Claxton requested, and the court granted, the request to have a copy of the reasons for sentence, PSR and psychological assessment, be sent to the institution to assist with classification.

[4] The court set 5:00 pm on January 17, 2020 as the time by which these orders are to be executed in the courthouse.