ONTARIO COURT OF JUSTICE

DATE: February 11, 2021

COURT FILE No.: Central East - Newmarket - 4911-998-17-02551

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

RICHARD AGUILAR

Before: Justice A. A. Ghosh

Heard on: January 22, 2021

Reasons for Judgment

Released on: February 11, 2021

Counsel: M. Ventola, counsel for the Crown E. Willschick, counsel for the defendant Richard Aguilar

Ghosh J.:

Overview

[1] I found Richard Aguilar guilty after trial for three child-luring related offences involving his communications with an undercover officer (UC) as he sought to pay for the sexual services of a child under the age of 16, contrary to sections 172.1(2) (x2) and 286.1(2) of the Criminal Code. These are the reasons for his sentence.

[2] “Project Raphael” was an ongoing undercover police investigation into parties who communicated with underage persons in order to pay for sexual activity. The offender responded to an advertisement posted by the police for the sexual services of an 18-year-old sex trade worker. Mr. Aguilar agreed by text message to pay for sex after he learned he was communicating with a 14-year-old girl. The “girl” was an undercover officer.

[3] The Crown submitted that a global custodial sentence of 2 years less a day was appropriate. The Defence submitted for a 90-day intermittent sentence. The COVID-19 public health crisis informed the defence position. I have determined that a global sentence of 14 months of custody will be imposed, with probation and ancillary orders.

Facts Supporting Findings of Guilt

[4] The police posted an advertisement in the “Toronto escorts” section of the now defunct “backpages.ca” website for the sexual services of an 18-year-old woman. Richard Aguilar, then 38 years old, responded to the advertisement using a texting application that masked his cell phone and number.

[5] Early in the exchanges, Mr. Aguilar asked whether the girl was “really 18” as opposed to someone in her 20’s. The UC informed the offender that she was “younger than 18”. After initially replying that he was “not looking for trouble” and that it “seems too risky”, Mr. Aguilar asked her when she would turn 18. The UC replied: “couple years”.

[6] Some hours later, Mr. Aguilar asked the UC if she was available at “around 5pm”. The officer repeatedly sought confirmation of the services expected by Mr. Aguilar. When Mr. Aguilar refused, the officer abruptly ended the discussion with “Nope goodbye”.

[7] Hours later, the offender employed another texting app with a new cell phone number to contact the UC again. The UC confirmed the price and the sexual services to be provided. The defendant promptly replied, “Where do I come”.

[8] The UC provided an intersection in Vaughan and then informed: “I’m under 18 if that’s an issue. The last guy left saying I looked too young and caused a scene. If an issue no problem. Some guys mind and others don’t but I’m small and it’s obvious.”

[9] Mr. Aguilar replied: “No details just location please”. The officer responded: “Well you gonna freak out. Cause I’m 14 but turning 15.” The defendant then commented: “Why yo (sp) giving this… no details location only”.

[10] After an extended exchange, Mr. Aguilar confirmed the details of the transaction and was given directions to a hotel room. The offender was arrested when he arrived in possession of cash and a condom. I rejected Mr. Aguilar’s innocent explanation that he went to the hotel room in order to help steer the young person away from the sex trade.

Circumstances of the Offender

[11] Mr. Aguilar is 40 years old and did not have a criminal record. He has support in the community, notably from his parents, his sister and her husband. The offender is the primary caregiver of his ailing parents.

[12] He has a certificate in information technology and remains employed as an administrative technician with an IT solutions firm in Toronto. Mr. Aguilar has been diagnosed with Type-2 diabetes and is concerned about how this vulnerability will impact his health with the prospect of contracting COVID-19 during a custodial sentence. He maintains his innocence.

Applicable Principles of Sentencing

[13] The objectives of sentencing are codified in section 718 of the Criminal Code. The principles of denunciation, and specific and general deterrence are the central sentencing objectives for offenders against children. [1]

[14] I apply the principle of restraint in sentencing Mr. Aguilar, a first-time offender. His rehabilitation and reintegration into the community must be considered as well.

[15] Section 718.1 directs that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. While I must also apply the principle of parity codified in section 718.2(b), recent appellate law supports increases in the quantum of custody from past dispositions for similar offences.

Sentencing Jurisprudence

[16] In 2020, The Supreme Court provided new guidance regarding the sentencing approach for child sexual offences generally. [2] The Court also specifically commented on the sentencing approach to child luring cases involving undercover police sting operations.

[17] In R. v. Friesen, the Court outlined its expectation of an “upward departure from prior precedents and sentencing ranges” for sexual offences involving children. [3] This would more accurately reflect Parliament’s intention in repeatedly increasing related maximum sentences [4] and our contemporary understanding of the severe personal and societal harm inflicted by such offending.

[18] The Court also observed that the absence of a “real victim” in police undercover child luring investigations, while relevant, “does not detract from the degree of responsibility of the offender”. [5] Such an offender would have nonetheless had the intention to communicate with a person believed to be underage and the specific intent to facilitate the commission of an identified sexual or exploitation offence.

[19] Child luring has been recognized to be a significant problem in York Region. [6] Sentences with analogous facts have generally met or stretched the lower end of the malleable sentencing range of 12-24 months endorsed by our Court of Appeal. [7] Sentences after a trial by indictment for this specific investigation have ranged from the exceptional intermittent sentence [8] to 15 months of custody. [9]

Mitigating and Contextual Factors

[20] The following mitigating and contextual factors have been established:

i. Mr. Aguilar is now 40 years old and was without a criminal record. ii. He was not originally searching to pay for a sexual encounter with an underage girl. When the police presented him with an opportunity to do so, he took it. [10] iii. Mr. Aguilar leads a largely prosocial life. The offender has the support of family, friends and co-workers. He is the primary caregiver for his parents and retains employment during challenging times. iv. The offender has Type-2 diabetes and is understandably concerned about his related susceptibility to serious illness should he contract the COVID-19 virus while in custody.

Aggravating Factors

[21] The following aggravating factors have been proven beyond a reasonable doubt:

i. The undercover officer presented as a particularly vulnerable 14-year-old child newly engaged in the sex trade. As the offender himself approached 40 years of age, the gap in maturity is additionally aggravating. ii. Mr. Aguilar agreed to vaginal intercourse – sexual contact at the most serious end of the spectrum. iii. There was a degree of planning and deception that went into Mr. Aguilar’s pursuit. He used two different texting applications in order to conceal his cell phone and number. Each time he pretended to be a different person. iv. The offender was not dissuaded when the UC ended their communications. Instead of accepting that a child no longer wished to negotiate terms for sexual services, he changed cell phone identifiers and arranged to transact again using a different identity.

Prospective Impact on Sentence of COVID-19 Public Health Emergency

[22] Courts in our province have contended with the application of the principle of proportionality when sentencing offenders to custody during the COVID-19 public health crisis. [11] It is not disputed that Mr. Aguilar’s diagnosis of Type-2 diabetes increases his risk of severe illness should he contract COVID-19. I accept that he is understandably anxious about this prospect.

[23] While there are no ready means by which to quantify how this factor would inform sentence, a proportionate sentence must consider this.

Discussion

[24] In 2015, Parliament increased the maximum sentence for child luring from 10 to 14 years where the Crown proceeded by indictment, as it has in this case. Increases in maximum sentences signal Parliament’s expectation that sentences increase. Sentencing authority predating such amendments must be viewed accordingly. [12]

[25] The maximum sentence was 5 years when the Court of Appeal in 2006 set out the malleable sentencing range for child luring of 12-24 months custody. Even before the Supreme Court’s direction in Friesen, our Court of Appeal observed that the mid-to-high reformatory sentencing range for child luring may have to be revisited. [13]

[26] The Crown agreed that I should consider the Defence submission for an intermittent sentence of three months, [14] but resisted that such a sentence was remotely fit. He submitted that a maximum reformatory sentence would properly reflect the moral responsibility for the offending and the guidance supporting an “upward departure” from previous sentencing authority. Defence counsel pointed to the mitigating factors present and the related sentencing rulings for this project that may support a shorter sentence in the three-month intermittent range. I do not find that a sentence of less than 12 months would be fit here. [15]

[27] There was no child in this case. However, I found that Mr. Aguilar intended to communicate with a girl he believed was 14 years old in order to pay her for vaginal intercourse and more. The culpability for these facts is heightened by the vulnerability posed by the age of the purported victim, the apparent age gap, and that the offender used a second identity to renew communications after the UC had ended contact. The persistence and deception demonstrated by an adult changing his identity in order to contact a “child” who had rejected his sexual overtures is uniquely aggravating.

[28] Mr. Aguilar and others arrested during Project Raphael were charged prior to the sentencing guidance in Friesen advancing an upward departure from prior sentencing law. While I must consider this guidance from our highest court, all the sentencing rulings from this investigation presented in support of parity predate this guidance.

[29] Consequently, I am not inclined to impose a markedly longer custodial term than those imposed for comparable cases. Similar offenders charged and convicted after the release of Friesen may not similarly benefit. I am also mindful that a restrained and proportionate sentence must consider Mr. Aguilar’s risk of becoming severely ill should he contract the COVID-19 virus while in custody.

[30] Any sentence approaching a three-month intermittent sentence, however, would fail to adequately account for the primary sentencing objectives identified and Mr. Aguilar’s responsibility for the offences. [16] I am only aware of one recent intermittent sentence after a trial by indictment for a reverse sting luring investigation. The circumstances of that decision are exceptional and distinguishable.

[31] Justice Bird of our Superior Court in R. v. Dare [17] imposed an intermittent sentence involving a 22-year-old offender and an undercover officer who presented as a 15-year-old sex trade worker. Mr. Dare only learned of the age shortly before his arrest. A psychiatrist report deemed Mr. Dare a low risk to reoffend and a significant immigration concern informed sentence. Mr. Aguilar’s circumstances are more aggravating and less mitigating. A sentence within the lower end of the existing appellate range is appropriate.

Conclusion

[32] Mr. Aguilar will be sentenced to 14 months of custody for “child luring” and 6 months concurrent for the “communication with a child for sexual services” offence. He will also be placed on probation for 2 years with the conditions itemized in Appendix A. I will impose a s.161 order for 5 years as outlined in Appendix B. He will be subject to a Sexual Offender Information Registration Act (SOIRA) order for life: s.490.013(2.1). A DNA order will be imposed (primary compulsory: s.487.04).

[33] Applying the principle precluding multiple convictions for the same delict, count 1 (Luring of Child under 18 years of age) was conditionally stayed. [18] My thanks to counsel.

Released: February 11, 2021 Signed: Justice A. A. Ghosh

Appendix A

R. v. Richard Aguilar: Probation

A. Keep the peace and be of good behaviour B. Appear before the court when required to do so C. Notify the court or probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation D. Report by telephone to a probation officer within 2 working days of your release from custody and after that, at all times and places as directed E. Live at a place approved by your probation officer and not change that address without the prior consent of your probation officer F. You are not to contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with any person under 16 years of age, except in the direct presence of another person over 21 years of age. G. You are not to possess any weapons as defined in the Criminal Code, which would include a firearm, imitation firearm, cross-bow, prohibited weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person H. You must attend and actively participate in all assessments, counselling or rehabilitative programs as directed and complete them to the satisfaction of your probation officer I. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed. J. You are not to access any internet dating sites or websites that display advertisements for the sex trade K. You are not to attend any hotel, motel, Airbnb location or other similar rental accommodation without the prior written approval of your probation officer L. You are not to seek, obtain or continue any employment or volunteer position that involves being in a position of trust over persons under 16 years of age

Appendix B

R. v. Richard Aguilar: Section 161 of the Criminal Code

For a period of five (5) years, Richard Aguilar is prohibited from:

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

(b) 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; and

(c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the offender does so under the direct supervision of a person over 21 years of age.

[1] Criminal Code, section 718.01 [2] R. v. Friesen, [2020] S.C.J. No. 100 [3] Friesen, paras. 107-110 [4] Friesen, paras. 96-100 [5] Friesen, paras. 93 [6] R. v. Chheda, (February 1, 2019) Kenkel J. (C.J.); R. v. Haniffa, [2018] O.J. No. 7052 (C.J.) [7] R. v. Jarvis, [2006] O.J. No. 3241 (CA), 2006 ONCA 27300; R. v. Morrison, [2017] O.J. No. 3600, 2017 ONCA 582; Chheda, paras.8-10 [8] R. v. Dare, (January 3, 2019) Bird J. (S.C.) [9] Chheda, para. 9 [10] R. v. C.D.R., [2020] O.J. No. 791; R. v. Saffari, [2019] O.J. No. 6177 [11] R. v. Hearns, [2020] O.J. No. 1648, 2020 ONSC 2365 and R. v. Yzerman, [2020] O.J. No. 1933 [12] R. v. Reeve, [2020] O.J. No. 2562 (CA), para. 39; Friesen, paras. 95-100 [13] Morrison, (CA); R. v. Cowell, [2019] O.J. No. 6284, 2019 ONCA 972. [14] R. v. Cowell, paras. 123-6; R. v. Faroughi, [2020] O.J. No. 861; C.D.R.; Saffari [15] Cowell, paras. 98-103 [16] Cowell, paras. 100-103 [17] R. v. Dare [18] R v. Kienapple, [1975] 1 S.C.R. 729, 1974 SCC 14; Faroughi, paras. 10-12