DATE : June 1, 2021 ONTARIO COURT OF JUSTICE Old City Hall – Toronto

BETWEEN: HER MAJESTY THE QUEEN — AND — M.M.

For the Crown: P. Santora For the Defendant: C. Assie Submissions heard: March 11, 2021

REASONS for SENTENCE

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] The offender, M.M., got married to M.O. in July of 2018. He was 31 years old at the time. In early August 2018, M.O. was looking through M.M.’s phone and discovered sexually explicit photos and videos of 15-year-old M.G. (the offender’s “cousin”), as well as sexually explicit electronic text conversations between M.G. and M.M. M.O. ended the marriage, made a copy of this material and went to the police. M.G. is not a blood-cousin of M.M. but rather the foster daughter of M.M.’s aunt, D.M.

[2] During these conversations, which took place over several weeks in July of 2018, M.G. sent M.M. pictures of her naked breasts and explicit videos of herself masturbating. The conversations include the parties telling each other of their love for one another, references to their dreams of having sex with each other, as well as plans to in fact have sex with each other.

[3] There is no evidence that M.M. and M.G. ever had sex with each other.

[4] After trial I found that M.M. was in a position of trust towards M.G. and I found him guilty of (1) possession of child pornography relating to the images M.G. sent to him, and (2) making child pornography relating to the text messages M.M. composed and sent to M.G. describing the sex they would have together before she turned 18 years of age.

[5] M.M. was acquitted of several charges: accessing child pornography; counselling M.G. to touch herself for a sexual purpose, contrary to s. 152 of the Criminal Code; and communicating with M.G. contrary to s. 172.2 of the Criminal Code, for the purpose of arranging the commission of sexual exploitation contrary to s.153 (1).

B. THE CIRCUMSTANCES OF THE OFFENCE

[6] My trial judgment, R. v. M.M., 2020 ONCJ 506 sets out the circumstances of the offences in detail. I will not repeat them here.

C. THE CIRCUMSTANCES OF THE OFFENDER

[7] M.M. is a 34-year-old first offender. He enjoyed a rather unremarkable upbringing, has a college degree and a solid history of gainful employment, although he lost the job he had as a result of being charged. He enjoys strong family support.

[8] M.M. has a history of alcohol abuse, including during the period of the commission of the offences. He now seems to have it under control.

[9] M.M. underwent a battery of psychological tests and I think it is safe to summarize the results as entirely normal. There is no evidence of mental illness or personality disorders. Dr. Gojer, a forensic psychiatrist retained by the defence, concludes in his report that M.M. shows no signs of pedophilia and is at a low risk to reoffend, and I accept that opinion. He has begun counselling with Dr. Kalia, a clinical psychologist, and has demonstrated good insight into his misconduct. He intends to continue that counselling.

D. THE POSITIONS OF THE PARTIES

[10] Ms. Santora seeks a sentence of two years’ incarceration less credit for a brief period of pre-trial custody, to be followed by a three-year term of probation and various ancillary orders, including a s.161 order on certain terms.

[11] Mr. Assie seeks a 12-month conditional sentence order and an 18-month term of probation. He opposes any s.161 prohibition order.

E. THE PRINCIPLES OF SENTENCING

[12] The principles of sentencing are set out in Part XXIII of the Criminal Code.

[13] According to s. 718 of the Criminal Code, 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, namely: (a) to denounce unlawful conduct; (b) to deter the offender and others from committing offences; (c) to separate offenders from society where necessary; (d) to assist in rehabilitating offenders; (e) to provide reparations for harm done to victims or the community; and (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community.

[14] Further, according to s. 718.1 of the Code, the "fundamental principle" of sentencing is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[15] Section 718.2 of the Code also dictates that, in imposing sentence, the court must also apply a number of principles including the following:

• A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;
• A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
• Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
• An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and,
• All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders.

[16] Section 718.01 further mandates that: “when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.” The possession and making of child pornography are considered such offences: R. v. Inksetter, 2018 ONCA 474, at para. 3.

F. THE AGGRAVATING CIRCUMSTANCES

(a) M.M.’s luring: Can it be considered as aggravating on sentence?

[17] Before dealing with the aggravating circumstances, an issue arises as to what should be made of M.M.’s luring behaviour. Ms. Santora argues that even though M.M. was acquitted at trial of the count of luring, that acquittal does not prevent me from considering the luring as an aggravating circumstance on sentencing for the child pornography offences. On the other hand, an argument can be made on behalf of M.M. that such a finding is not available, relying on the doctrines of issue estoppel and autrefois acquit.

[18] At trial, I found that the Crown had proven beyond a reasonable doubt that M.M. was in a position of trust with respect to M.G. and that he had, by means of a telecommunication, agreed with M.G., and made arrangements to have sex with her on the long August weekend when M.G. would turn 16. The Crown had charged M.M. with an offence under s.172.2, specifically alleging that he had arranged to commit the offence of sexual exploitation. Because proof that M.G. was between 16 and 18 years of age at the time that this sex was to occur is an essential ingredient of the alleged offence, I acquitted M.M. of that alleged offence because I had a reasonable doubt that the arranged sex was to take place after M.G.’s 16th birthday.

[19] Had the count in the information been differently worded, alleging an arrangement to commit either sexual exploitation (where M.G. had already turned 16) or sexual assault (where M.G. had not yet turned 16), I would have found M.M. guilty.

[20] The question is, does the acquittal prevent me from considering the conduct in question as an aggravating factor?

[21] My review of the law leads me to conclude that I must treat it as admissible and aggravating to some degree. The doctrines of issue estoppel and autrefois convict do not assist M.M.

[22] As concerns the operation of the common law rules of issue estoppel and autrefois acquit, the leading authority is R. v. Mahalingan, 2008 SCC 63. McLachlin C.J. explains at paras. 26 and 52 that:

26…The Crown is estopped from leading evidence which is inconsistent with findings made in a previous trial, whether those findings were expressly made in the accused's favour or resolved on the basis of a reasonable doubt. Issue estoppel applies only to findings on a prior trial (as held by Blair J.A. in this case). Further, the determination of whether an issue was decided at the first trial will be a factual issue at the second trial in each case. In my view, these propositions should be affirmed as correct statements of the law. Moreover, it should follow from these propositions that the Crown is permitted (absent the operation of the other rules of evidence) to lead evidence relating to issues litigated in an earlier proceeding: (1) if the issue was not decided in the accused's favour in the earlier proceeding; and (2) if the issue was decided in the earlier proceeding, but the Crown is not seeking to use the evidence to contradict the factual finding on that issue at the previous trial.

52 The first requirement for a claim of issue estoppel is that the issue has been decided in a prior proceeding. This requires the court in the second trial to decide whether the issue the Crown is seeking to prove is the same as an issue resolved in the accused's favour in a prior criminal proceeding. The onus of establishing this is on the accused who seeks to bar proof of the issue alleged to have already been resolved. To establish this, the accused must show that the question was or must necessarily have been resolved on the merits in the accused's favour in the earlier proceeding. It is not enough to show that the evidence was led in the earlier proceeding and an acquittal entered. It must be a necessary inference from the trial judge's findings or from the fact of the acquittal that the issue was in fact resolved in the accused's favour.

[23] If M.M.’s acquittal at trial had been based on a reasonable doubt that he had arranged to have sex with M.G., the Crown could not now seek to rely on that conduct as aggravating. The issue would have already been conclusively decided in M.M.’s favour. But, because the acquittal was based on the Crown’s failure to prove that M.G. would have already turned 16 years-of-age at the time the sex was to take place, this finding does not undermine the finding beyond a reasonable doubt that M.M. did arrange to have sex with M.G. on the weekend in question, either just before or just after she turned 16 – a crime in either case, given his position of trust.

[24] That does not mean, however, that I can sentence M.M. as if he had been convicted of the offence of which he was acquitted. Rather, this conduct should be treated as evidence of M.M.’s character and attitude towards M.G. See R. v. Angelillo, 2006 SCC 55, at paras. 27-30.

(b) Other aggravating circumstances

[25] Section 718.2(a)(3) mandates that M.M.’s position of trust in his relationship with M.G. is aggravating.

[26] The fact that M.G. was under 18 years of age at the time would generally be considered aggravating, but the offences themselves are, by definition, offences against children. They are considered serious offences for that reason. It would be wrong to treat the youth of M.G. as further contributing to the imposition of a more severe penalty, much the same way as it would be wrong to treat an offender’s use of a weapon as aggravating when sentencing them for the offence of assault with a weapon.

[27] M.M.’s age – 31 years old at the time of the offences (16 years older than M.G.) – is also somewhat aggravating. The greater the age difference between offenders and their victims in offences of this nature, the more serious is the misconduct.

[28] That M.M. sent M.G. some pictures of himself naked is aggravating.

(c) Victim impact

[29] No Victim Impact Statement (V.I.S.) was provided by M.G. Nor was she called as a witness at trial or on sentencing. I will not speculate as to her current attitude towards the prosecution and sentencing of M.M. I take judicial notice, however, of the recent dicta of the Supreme Court in R. v. Friesen, 2020 SCC 9 at para. 84 explaining how the impact of offences against children can often not manifest for years.

[30] A V.I.S. was provided by M.M.’s former wife, M.O. Neither party made submissions as to what role M.O.’s suffering should play in the sentencing of M.M., yet pursuant to s. 722(1) I am obliged to consider it.

[31] M.O. is a “victim” of M.M.’s crime insofar as she meets the broad definition of “victim” in s. 2. She is “a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person”. See too R. v. D., , [2000] O.J. No. 4850 and R. v. D.G.F., 2010 ONCA 27.

[32] M.O.’s V.I.S. sets out how devastated she was to learn that M.M. did not really love her and that his commitment to their marriage had been a sham. I have no doubt that her suffering was acute and that it is ongoing. That having been said, I do not believe that M.O.’s suffering is an aggravating factor on sentencing. It is not the criminality of M.M.’s conduct that is the cause of M.O.’s suffering. Rather, it is his romantic deceit that gives rise to her pain. The way I read the V.I.S., I expect that her suffering would have been identical if M.M. had done what he did with M.G. after M.G. had turned 18 years of age. Not every moral wrong is the concern of the criminal law.

G. THE MITIGATING CIRCUMSTANCES

[33] Child pornography offences fall on a broad continuum. In summarizing the mitigating circumstances, I will identify those circumstances of the crime and of M.M. that tend to move the offense towards the minor end of the spectrum.

[34] The photos and video that M.M. possessed were quite unlike the sort of child pornography that we often see in our courts, which shows unspeakably sinister acts perpetrated against infants and very young children. Indeed, M.M.’s “collection” of photos and videos of M.G. couldn’t be less sinister, and still be child pornography.

[35] Unlike most child pornography offenders, M.M. did not go searching the internet for child pornography. Rather, it was sent to him, unsolicited. Had he erased the images immediately upon seeing them he would not have been guilty of any offence. It is also important to note that M.M. did not distribute these photos. I do not mean to be taken as suggesting that M.G.’s participation in the creation of the child pornography is mitigating. A child’s willing participation in such offences is never mitigating: R. v. Friesen, supra, at para. 154. Rather, I seek to distinguish the culpability of M.M. from offenders who troll the internet for images of children being abused and then often further distribute these images.

[36] As concerns the messages that constitute the child pornography M.M. created, they too fall at the minor end of the spectrum. They are not images of child abuse. Rather they are merely the recordings of his thoughts and fantasies. Had M.M. not sent them to anyone he would not have been guilty of possession of child pornography. See R. v. Sharpe, 2001 SCC 2, [2001] 1 S.C.R. 45. In fact, there was no distribution of these messages to anyone other than M.G.

[37] Even though M.M. and M.G. initially planned to have sex on the long August weekend of her 16th birthday, I accept what Dr. Gojer reports, to the effect that M.M. told him that M.M. realized what he was doing was wrong and told M.G. upon arriving at the cottage that it was time to revert to a platonic friendship.

[38] As set out above, M.M.’s personal circumstances put him at the minor end of the spectrum. He is relatively youthful, has no record, and demonstrates no pedophilic tendencies. He has sought counselling and does not pose a risk of re-offending.

[39] M.M. made reasonable concessions at his trial and was acquitted of the most serious charges he faced. While this does not attract as high a sentence discount as does a guilty plea, it is nonetheless worthy of credit. And I find M.M.’s expression of deep remorse to be genuine.

H. THE CASELAW

[40] It is a well settled principle of criminal law that similar sentences should be imposed on similar offenders for similar offences in similar circumstances. Criminal Code, s. 718.2 (b); R. v. Lacasse, 2015 SCC 64 at para 2.

[41] That parity principle notwithstanding, the Supreme Court has made it clear in R. v. Friesen, 2020 SCC 9 that the range of sentences for sexual offences against children must be increased. New knowledge of the impact of child pornography and offences of violence against children, as well as the proliferation of such crimes shows that more severe punishment is required to achieve the primary goals of sentencing in such matters, i.e. denunciation and deterrence. Sentences for sex offences against children prior to Friesen should not overly constrain sentencing judges.

[42] Looking to the jurisprudence for guidance is made even more difficult given how few of these precedents involve circumstances like M.M.’s. Most of the caselaw involves either hands-on sexual offences, more serious child pornography offences, or both.

[43] That does not mean that pre-Friesen jurisprudence has entirely lost its relevance. Mr. Assie provided several cases of low-end child pornography offences where non-custodial sentences were imposed, often in circumstances more serious than those in the case before me. See e.g. R. v. Schan, , [2002] O.J. No. 600 (C.A.); R. v. Cohen, , [2001] O.J. No. 1606 (C.A.); R. v. Weber, , [2003] O.J. No. 3306 (C.A.).

I. IS A SENTENCE OF IMPRISONMENT REQUIRED?

[44] In my opinion, notwithstanding the mitigating circumstances cited above, M.M’s offences involving a 15 year-old girl are simply too serious to merit anything less punitive than a sentence of imprisonment. This breach of trust requires a term of imprisonment to satisfy the need for deterrence and denunciation.

J. IS A CONDITIONAL SENTENCE APPROPRIATE?

[45] Ms. Santora concedes that there are no constitutional mandatory minimum sentences governing the sentencing of M.M. As such, a conditional sentence of imprisonment is available in law.

[46] Even though a conditional sentence does not involve incarceration, it can nonetheless be sufficiently strict that it meets the primary objectives of sentencing in this case – denunciation and deterrence, while also satisfying the need to demonstrate restraint: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 at paras. 21-22, 36, 41, 102, 127.

[47] Section 742.1 sets out the conditions allowing for the imposition of a conditional sentence. Applying the principles articulated in the Criminal Code and in Proulx, I believe that a conditional sentence is appropriate in this case. Because of the low risk of further offending by M.M. I am satisfied that service of the sentence in the community would not endanger the safety of the community. I am also satisfied that a conditional sentence would be consistent with the fundamental purpose and principles of sentencing. The message from the Supreme Court in Friesen does not, in my view, mandate a custodial disposition in the unique case of M.M.

K. IS A SECTION 161 PROHIBITION IN ORDER?

[48] I do not believe that M.M. poses a risk to strangers under the age of 16. I will thus not ban M.M. from public places where children under 16 are present, nor will I ban him from contact with children under 16 years of age. I will, however, prohibit him from contact with M.G. for 10 years and from being employed in a position of trust towards children under 16 years of age for 10 years.

L. CONCLUSION

[49] I sentence M.M. to a 15-month conditional sentence, the precise terms of which will be subject to further submissions.

[50] Upon the completion of M.M.’s conditional sentence he shall be on probation for 12 months on the following terms:

1. Report within 48 hours of release and thereafter at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in your supervision.
2. Reside at an address approved of by Probation Officer.
3. Notify your probation officer within 48 hours of any change in your address, occupation or employment.
4. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer.
5. Sign any releases necessary for your probation officer to monitor your participation in assessment, counselling and rehabilitation programs.
6. No contact directly or indirectly with M.G.
7. Not to be within 100m of anywhere M.G. lives, works, attends school, or is known to be.
8. Not to possess any images of anyone under the age of 18.

[51] There will be a 10-year prohibition order under s. 161 (1) (a.1) naming M.G. and under s. 161 (1)(b).

[52] There will be a primary DNA order and a SOIRA order for life.

Released on June 1, 2021 Justice Russell Silverstein