WARNING The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows:

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

( a ) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall

( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and

( b ) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

DATE: 2022 11 10 COURT FILE No.: 19-45002830 Metro North, Toronto Region

BETWEEN:

HIS MAJESTY THE KING

— AND —

MOHAMMAD RAFI MAFTOON

Before Justice Cidalia C. G. Faria

Heard on March 4, June 6, 9, 2022 Reasons for Judgment released on November 10, 2022

Counsel: Brianne Bovell..................................................................................... counsel for the Crown Stephen Whitzman...................... counsel for the defendant Mohammad Rafi Maftoon

Faria J.:

I. INTRODUCTION

[1] Mohammad Maftoon was found guilty on November 12, 2021 [1] after a trial of committing an indecent act in a public place and exposing his genitals to a child for a sexual purpose ( ss. 173(1) and 173(2) of the Criminal Code ).

[2] The matter was adjourned to obtain a Pre-Sentence Report. On January 19, 2022, Mr. Maftoon filed an application alleging his ss. 7 and 8 Charter rights had been violated and seeking a remedy pursuant to s. 24(1) of the Charter to be argued on March 4, 2022. However, during argument, Mr. Maftoon altered the substantive nature of his s.8 violation without Notice. The Application then had to be adjourned to March 31, 2022, for a proper response.

[3] Unfortunately, due to illness, the application did not proceed that day and was adjourned to June 6 and 9, 2022 when it was heard. Ruling and sentencing were to be provided on October 25, 2022, but again due to an unexpected circumstance, the matter was adjourned to today’s date.

[4] This is my Ruling on the Charter application, and my reasons for sentence.

II. THE CHARTER APPLICATION

i. The Applicant Position

[5] The Applicant alleged that his s. 7 Charter right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice and his s. 8 Charter right to be secure against unreasonable search and seizure were violated. He seeks a reduction of sentence pursuant to s. 24(1) of the Charter for the alleged police misconduct.

[6] The Applicant did not testify on the motion.

[7] The Applicant relied on the evidence at trial which he described as having been “pulled’ from his vehicle after “being allowed” to put on his boxer shorts, but otherwise he was not wearing any clothing or footwear. He was handcuffed to the rear, put into a police cruiser, and transported to the station. Once there, he was paraded before the staff sergeant and then placed in a room where he was subjected to a “Level-2” or ‘full pat-down’ search. He was not given his clothes and sandals until 58 minutes after his arrest.” [2]

[8] The Applicant originally alleged he was “strip-searched” which is the “removal or re-arrangement of some or all the clothing of a person so as to permit a visual inspection of a person’s private areas…or undergarments”, R. v. Golden 2001 SCC 83, [2001] 3 S. C. R. 679. However, during argument, he conceded this was not in fact done and withdrew this allegation of a s. 8 violation.

[9] Instead, the Applicant alleged the police should have ensured he was fully dressed when he was arrested and taken to the police station. The Level-2 search of each item of the Applicant’s clothing before it was provided to him, was conducted while he was in his underwear. This, the Applicant submits, even though not so intended, humiliated him, and therefore was a search conducted in an unreasonable manner and violated both his s. 7 and 8 rights.

ii. The Respondent Position

[10] The Respondent submitted the police Level-2 search of the Applicant’s clothing was not done in an unreasonable manner and did not violate his ss. 7 and 8 rights. The Application should be dismissed.

[11] The Respondent filed a Will Say of Detective Constable Andrew Haworth dated March 10, 2022, a Will Say of Detective Constable Andrew Haworth dated March 20, 2022, a Will Say of Constable Richard Dermody dated March 10, 2022, [3] and the Toronto Police Service Procedures, 01-02 Search or Person [4] . The Respondent outlined the facts as follows [5] :

• Upon arrival at the scene at 6:11 p.m., P.C. Haworth and P.C. Dermody observed the Applicant’s vehicle parked in the parking lot of the Grandravine Community Centre Pool. The Applicant was sitting in the rear seat of his motor vehicle with the sunroof open, fully naked and masturbating.
• P.C. Haworth directed the Applicant to put on his underwear and exit the vehicle as he was under arrest for indecent exposure.
• The Applicant put on his underwear, unlocked the door of his vehicle, and exited the vehicle.
• The Applicant was uncooperative with the Officers upon arrest and actively resisted their attempts to handcuff him.
• The two Officers placed him under arrest, handcuffed him to the rear and lodged him in the rear of the scout car. The Officers brought the Applicant’s clothing with him, which they retrieved from his vehicle. They transported him to 31 Division
• At the police station, the two Officers paraded the Applicant before the booking sergeant, then placed the Applicant in a CIB interview room where they conducted a Level-2 search of his clothing at approximately 7:12 p.m.
• A Level-1 search is a pat down search for weapons, usually conducted upon an individual’s arrest. It is limited to the exterior patting of clothing such as pockets, waistbands or areas that may reasonably conceal items such as weapons. The purpose of a Level-1 search is immediate officer safety. Given Mr. Maftoon’s state of dress, the police did not pat down Mr. Maftoon at the time of his arrest. A visual inspection of Mr. Maftoon was sufficient to determine that he did not have any weapons on his person.
• A Level-2 search, also referred to as a “frisk” search, is a more thorough search, which generally involves searching the insides of pockets, as well as the removal of clothing. The purpose of a Level-2 search is to locate items such as weapons or evidence that may be missed during a Level-1 search. Level-2 searches are generally utilized for searches incident to arrest.
• P.C. Haworth and P.C. Dermody removed the Applicant’s handcuffs during the Level-2 search and conducted it by searching each article of the Applicant’s clothing for weapons, evidence, and means of escape. Once the articles of clothing were searched and cleared, the Officers returned the articles of clothing to the Applicant.
• The Officers’ decision to conduct a Level-2 search of the Applicant’s clothing was informed both by the Applicant’s active resistance at the time of arrest, and Toronto Police Service policy. Given the Applicant’s resistance to arrest, P.C. Haworth, and P.C. Dermody determined that the Level-2 search of the Applicant’s clothing was warranted to ensure he had no means by which to harm himself or others. Pursuant to Toronto Police Service policy, all arrestees must be frisk searched upon arrival at a police station for weapons, evidence, and means of escape.
• The Officers did not conduct a search of the Applicant’s person during the Level-2 search, nor at any other time. They determined such a search was unnecessary, given he was wearing only underwear at the time of his arrest. A visual inspection was sufficient to conclude that the Applicant had no weapons on his person. Accordingly, neither officer had any significant safety concerns that necessitated a more invasive search.

[12] The Respondent submitted the police did not search the Applicant’s person; they only did a visual inspection as he was in his underwear. His clothes were searched prior to being provided to him pursuant to a legitimate search incident to arrest, for the purpose of safety, and pursuant to Toronto Police policy. The Applicant’s state of dress at the time of the Level-2 search of his clothing had been of his choosing.

[13] The Respondent therefore submits that no s.7 or s.8 right was violated, and no remedy required.

iii. Law

[14] The onus is on the Applicant to demonstrate the violations on a balance of probabilities.

[15] Both parties accurately defined a “strip-search” pursuant to Golden. There was no strip search in this case and therefore no violation of the Applicant’s s. 8 rights on that point.

[16] The Level-2 search of the Applicant’s clothes prior to their being provided to him, does constitute a search. It was warrantless, and as such presumptively unreasonable.

[17] A search must be authorized by statute, or common law and it must be conducted in a reasonable manner pursuant to R. v. Collins, [1987] 1 S.C.R. 265 at para. 23.

[18] The common law power to search incident to arrest is established as “sensible and essential for the protection of police officers carrying out their all too often dangerous duties.” R. v. Stillman, [1997] 1 S.C.R. 607 at paragraph 33. For the search to be lawful, the arrest must be lawful, the search must be truly incident to arrest, and it must not be carried out an abusive fashion, R. v. Caslake, [1998] 1 S.C.R. 51 at para 13-14.

[19] In R. v. Fearon, [2014] SCC 77, the Court stated at paragraph 13, “the permissible scope of searches incident to arrest will be affected by the particular circumstances of the particular arrest”. The Court declined to describe the scope of searches incident to arrest either categorically or very generally, as arrests are dynamic occurring in a variety of circumstances regarding numerous offences.

[20] The lawfulness of the Applicant’s arrest is not at issue.

[21] The Applicant challenges whether the search of his clothes was incidental to his arrest and whether it was conducted in a reasonable manner.

[22] To be incidental to arrest, the purposes that justify the search are police and public safety, preventing the destruction of evidence, and the discovery of evidence, Caslake at paragraph 19.

[23] There is no requirement that there be a reasonable and probable grounds to believe that police or public safety is implicated, or that evidence will be found. All that is required is a “reasonable basis” for conducting the search. Caslake at paragraph 20.

iv. Analysis

[24] A straightforward application of the Supreme Court of Canada’s jurisprudence is dispositive of the Application.

[25] The Officers searched the Applicant’s clothes as soon as they were able: after transporting him to the police station and parading him. To have searched his clothing while the Applicant stood handcuffed outside his vehicle in public, or while he sat in the back of the cruiser, would have been untenable in terms of appropriateness and delay.

[26] The Applicant struggled when he was arrested. Though easily and quickly subdued, nonetheless his physical resistance demonstrated his ability and willingness to be violent. This provided a basis for the Officers to have safety concerns and a reasonable basis to search his clothing for items that could cause harm prior to providing him with those items of clothing.

[27] Further, the Applicant was in police custody at a police station. Had the police provided the Applicant unsearched clothing they had obtained from his vehicle without a Level-2 search of that property, they would have been in gross dereliction of their duties. The Police are responsible for the safety of everyone in their custody and ensuring the property they provided the Applicant contained no weapons or evidence was one of their duties.

[28] I find the search was incidental to arrest and there was both a fact driven and policy driven basis for the search.

[29] The Applicant asserts the search of his clothes while he was in his underwear was conducted in an abusive fashion.

[30] The Applicant was in his underwear, because that is what he chose to put on before he exited the backseat of his vehicle to engage with police officers. He could have decided to put on a shirt, shorts, sandals, or any combination thereof. He had access to those items inside his vehicle. He had locked himself inside his own vehicle. The Officers had no access to the Applicant. The Officers could no more prevent the Applicant from exiting the vehicle nude than they could force the Applicant to exit the vehicle fully dressed. The Officers’ presence and instruction to get out of the vehicle communicated he was going to be interacting with them. The Applicant made the decision on what he would wear during that interaction.

[31] It could be said that when the Officers went into the Applicant’s vehicle to obtain additional clothing to provide him as soon as they were able, was a demonstration of their respect for his dignity in the face of his choice to prefer being in his underwear.

[32] From the time of the Applicant’s arrest at about 6:11 p.m. to the time he received his clothing at 7:12 p.m., he was transported, paraded, and his clothes were searched. There is no evidence of delay, excessive or gratuitous force or contact of any kind. The search of his clothes was as minimally invasive as it could be in the circumstances.

[33] I find there was no breach of the Applicant’s s. 7 or 8 Charter rights.

v. Conclusion

[34] I dismiss the Applicant’s ss. 7 and 8 Charter Application.

III. SENTENCING ANALYSIS

i. The Offence

[35] After trial, Mr. Maftoon was found guilty of exposing his erect penis and masturbating in full view of a crowded public family pool which included numerous children, for a sexual purpose on July 6, 2019. One child, D.M., observed him. Four civilians, two lifeguards and the parents of the child observed Mr. Maftoon place his hand in his underwear and masturbate while he was in the pool. The lead lifeguard blew her whistle and instructed everyone to get out of the pool. Mr. Maftoon then pulled down his underwear, exposing his entire erect penis and proceeded to masturbate while he walked around the deck of the busy pool. It was at that point, the child who was in the presence of Mr. Maftoon standing close to his father GM observed Mr. Maftoon’s erect penis and his masturbation.

[36] Once Mr. Maftoon left the pool, he entered his car in the parking lot and moved his vehicle closer to the pool. He went into the backseat and proceeded to remove his all his clothing.

[37] Police were called. Two Officers arrived on scene. One Officer approached Mr. Maftoon’s vehicle and observed him lying down in his backseat “naked with his genitals in his right hand”. The other Officer described him as “fully nude” and “stroking his penis”. Children and adults were in the area close by. He was told to dress and exit the vehicle. He was arrested once he did so and transported to a police division.

ii. The Offender

[38] Pursuant to a Pre-Sentence Report, Mr. Maftoon is one of seven children who had a good upbringing in Afghanistan in a good neighbourhood with a professional father and a homemaker mother. He worked as a labourer then became an interpreter for the Coalition forces from 2008 to 2012. He became a target of the Taliban and fled in 2015 at the age of 27. He had married in 2012 and had a daughter. He left both his wife and child behind.

[39] In Canada Mr. Maftoon collected Ontario Works and then found employment as an Uber driver, his occupation at the time of his offences. He was deactivated, he suspects, because of his charges. He then became a janitor but was laid off in December 2021. In February 2022, he found new work, also as a janitor, for a cold storage company earning modestly over minimum wage. He lives with his older sister in Brampton and sends financial support to his wife and daughter every month. He hopes to sponsor them to come to Canada.

[40] Mr. Maftoon has no current or historical issues with substances or alcohol. He states he has no physical or mental health issues. He has no criminal record.

[41] Mr. Maftoon stated to the Pre-Sentence Report author that he had plead guilty which he had not. He also stated he was “very sleepy and tired” on the day of his arrest, it was a “hot day” and he “didn’t have proper shorts”. He explained he “removed all of his clothing in his car prior to napping due to the hot weather’, that he was “very tired”, and it was all a “misunderstanding”. This, after providing a letter to the author documenting he had attended 9 counseling sessions with NKS Therapy. [6]

iii. Position of the Parties

[42] The Crown’s position is that of 90 days jail, a two-year probation, and several ancillary orders. In the alternative, she submitted if the Court is considering an intermittent sentence, as such sentences are not currently being administered with any portion of the sentence being served in custody, a Conditional Sentence is the alternative and she suggested terms for consideration.

[43] The Defence recommends 45-60 days jail to be served intermittently or in the alternative a Conditional Sentence. He also recommends a shorter period of probation. All terms of probation and ancillary orders were agreed to but for one. Counsel submitted a prohibition from attending a public swimming pool would interfere with attending such a facility with his daughter, should she arrive in Canada. He recommended the exception that Mr. Maftoon be able to attend swimming pools with his daughter in the presence of his wife.

iv. The Law

Sentencing Objectives & Principles

[44] In criminal proceedings, sentencing is meant to reflect and reinforce the basic values of our society. Accordingly, 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 as reflected in s. 718 of the Criminal Code. The objectives are:

• to denounce unlawful conduct
• to deter the offender and other persons from committing offences
• to separate offenders from society, where necessary
• to assist in rehabilitating offenders
• to provide reparations for harm done to victims or to the community
• to promote a sense of responsibility in offenders and acknowledgment of the harm done to victims and to the community.

[45] How much emphasis a court places on each of these objectives will vary according to the nature of the crime and the circumstances of the offender. Importantly, the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender, s. 718.1.

[46] Offences against children are specifically addressed in s. 718.01 which indicates that a sentence for an offence that involves the abuse of a person under 18 shall give primary consideration to the objectives of denunciation and deterrence of such conduct. In particular:

s. 718.2 A court that imposes a sentence shall also take into consideration the following principles

(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation.

[47] Also relevant is the principle of parity, a sentence should be similar to sentences imposed on similar offences committed in similar circumstances, s. 718.2 (b).

[48] The sanctions available are set out:

173 (1) Everyone who wilfully does an indecent act in a public place in the presence of one or more persons, or in any place with intent to insult or offend any person,

(b) is guilty of an offence punishable on summary conviction.

(2) Every person who, in any place, for a sexual purpose, exposes his or her genital organs to a person who is under the age of 16 years

(b) is guilty of an offence punishable on summary conviction and is liable to imprisonment for a term of not more than six months and to a minimum punishment of imprisonment for a term of 30 days .

[49] The specific reference to a custodial minimum in s. 173(2)(b) when genital exposure is to a person under 16 demonstrates Parliament’s view of the seriousness with which s.173(2) offences are to be considered.

Case Law

[50] The Supreme Court of Canada set a new direction in R. v. Friesen, 2020 SCC 9, [2019] S. C.J. No. 100 when it stated:

“Children are the future of our country and our communities. They are also some of the most vulnerable members of our society.” (paragraph 1)

“Courts must impose sentences that are proportional to the gravity of sexual violence against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children…” (paragraph 5)

“The protection of children is one of the most fundamental values in Canadian society.” (paragraph 65)

[51] Somewhat helpful, but decided prior to Friesen is R. v Berthe, 2011 ONSC 6815 and R. v. Hartle, [2018] O.J. No. 7028 (Ont. Ct. J.). Mr. Berthe was sentenced to the maximum 6 months when he followed a family with two children and exposed his penis to them after a gust of wind blew away the newspaper he was using to hide his penis. He had a criminal record for similar offences. Mr. Hartle had pulled up his shorts and exposed himself twice to two staff members in the presence of a child. He was sentenced to 60 days intermittent jail. He had a positive Pre-Sentence Report and was 66 years old with good antecedents.

v. Analysis

[52] There are several aggravating and mitigating factors to consider.

a. Aggravating Factors

Repeated, Persistent Nature of the Offences in the Presence of More than One Child

[53] Mr. Maftoon’s conduct was not momentary. He put his hand in his shorts while in the pool looking at women and speaking to children. Then when he was on deck, he pulled his underwear down, fully exposed his erect penis and masturbated while he looked at and was looked at, by people including children. He exposed himself again after he entered his vehicle when took all his clothes off and masturbated in the backseat of his vehicle, again in view of people, including children.

[54] His attitude was described as follows “he had his boxers right down and he was, like, he had the whole thing, out and he was just jerking it off all over the deck. Like, he didn’t really care who saw that”. There was not even a pretense of discretion, he offended in blatant disregard of his public surroundings and the presence of children.

[55] Though there was only one named child, the evidence is that Mr. Maftoon committed these offences in the presence of many children at the pool on that day.

Impact

[56] The impact of Mr. Maftoon’s offences is wide-ranging, and severe.

[57] The pool had to be shut down early inconveniencing 45 – 50 people on a hot day and depriving them of a public benefit.

[58] The experienced head lifeguard was scared at the time, and even as she testified almost 2 years later, expressed her discomfort at being in the presence of Mr. Maftoon via Zoom in a virtual courtroom. She reported to the Pre-Sentence Report author that she stopped taking shifts at the Grandravine Community Centre pool where Mr. Maftoon offended as it made “her feel uneasy”. She has become “very aware of her surroundings”, “can’t feel at peace around guys”, feels “anxious” and “super paranoid” as result. She still thinks about it and stated, “I know any guy might do it” [7] . The experience was a violation, and it left her clearly distressed and traumatized.

[59] The father of the named child who Mr. Maftoon exposed himself to, reported to the Pre-sentence Report author that his son, who is now 12 years old, “still talks about the offences once in a while”.

[60] All four civilian adults who testified expressed combinations of shock, confusion, distress, disgust, and anger at the time they observed Mr. Maftoon’s offences.

Lack of Insight

[61] Most troubling is Mr. Maftoon’s lack of insight. Although he stated to the Pre-Sentence Report author and his counsellor that he feels “ashamed and regretful about what happened” [8] , his description of this behaviour demonstrates minimization at best, and delusion or dishonesty more likely – even after having gone to counselling. Mr. Maftoon demonstrates a gross inability to appreciate the gravity of his offences and their significant impact on those present at the time. He is undiagnosed, untreated and with no insight.

b. Mitigating Factors

Pro-Social Antecedents

[62] Mr. Maftoon has no criminal record. He has had steady employment and is currently working.

[63] Though resistant to taking responsibility and appreciating the nature and severity of his conduct, the fact Mr. Maftoon did attend 9 sessions with a counsellor and is prepared to attend further counselling, does demonstrate some motivation and ability to pursue rehabilitation.

Collateral Consequences

[64] I am informed Mr. Maftoon fled Afghanistan in September 2015 because he was a target of the Taliban. His Refugee claim was accepted in August 2020, and he is now a “protected person” in Canada. As such, this conviction may negatively affect his immigration process. This is a collateral consequence as defined in R. v. Suter, 2018 SCC 34, [2018] S.C.J. No 34 and to be considered, as one factor amongst others, when creating an appropriate sentence pursuant to R. v. Pham, 2013 SCC 15.

Familial Circumstances and Stress

[65] Also, to be considered is that Mr. Maftoon is under significant stress because his family, specifically his invalid mother, his wife and his 8-year-old daughter are currently in Pakistan having fled Afghanistan. Though they have been approved to immigrate to Canada, they have yet to arrive, and their circumstances are worse since the Taliban takeover of Afghanistan in August 2021.

c. State of Dress During Arrest and Processing

[66] Counsel advocates that even if the court finds no Charter breach, the fact Mr. Maftoon was in his underwear for an hour after his arrest, be considered a demeaning experience and therefore a mitigating factor, not a strong mitigating factor but one, nonetheless.

[67] As articulated earlier, Mr. Maftoon’s choice of dress at the time of arrest was his decision to make. I do not consider his attire during his arrest a mitigating factor.

d. Intermittent Sentences

[68] Neither party filed nor called evidence to support the submission that offenders are not serving any portion of their Intermittent sentence in custody. Both parties submitted detention facilities in Toronto are providing offenders with Temporary Absence Passes (TAP) and using electronic ankle bracelets to administer Intermittent Sentence Orders.

[69] As I do not consider an intermittent sentence to be an appropriate sentence in this case, I need go no further into whether or how Intermittent sentences are currently administered.

e. Balancing

[70] That Mr. Maftoon’s offended in the presence of many children attracts denunciation and deterrence. One child, D.M., two years later still recalls and speaks about the offences. This is a significant impact on a child of 10 now 12. There was also a significant impact on the head lifeguard. Moreover, the impact of his offences on the other children who saw him is unknown.

[71] When Mr. Maftoon sexually gratified himself in the presence of these children, he violated their right to be free from the harm caused by his exposure. Parliament and the Supreme Court direct this court to take into consideration the seriousness of these offences and give them meaning with the sentence it fashions. The sentence must denounce and deter. The principles of Friesen apply.

[72] Mr. Maftoon’s lack of insight gives rise to concerns he does not understand the gravity of his criminality. This raises concerns for public safety – particularly the safety of children. The concern for safety is somewhat attenuated by his willingness to attend counselling and the ability of a probation term to ensure proper rehabilitative programs are provided, attended, and completed.

[73] This point is relevant to the length of probation and whether there should be an exception to a s. 161 Order prohibiting his attendance at swimming pools.

[74] Mr. Maftoon’s misapprehension of his criminality as he articulated it to the Pre-Sentence Report author, is so concerning, that in my view, a full two-year period of counselling and rehabilitation is required before he be permitted to be in public swimming areas, including with his daughter and no exception is appropriate until then.

[75] Tempering denunciation, general and specific deterrence is the principle of parity. This will be Mr. Maftoon’s first experience of incarceration. This Incarceration must be meaningful, but not crushing.

[76] But for the fact Mr. Maftoon has no criminal record, and his personal circumstances as a non-Canadian citizen who experience significant collateral consequences, incarceration closer to the maximum sentence would have been appropriate given the blatant and persistent nature of his offences combined with his lack of insight, diagnosis and treatment.

IV. THE SENTENCE

[77] Having reviewed, considered, balanced, and applied all the relevant principles and objectives, I sentence Mr. Maftoon to 90 days in jail and a two-year probation.

[78] The terms of the Probation are:

Report within 2 business days of your release; Attend counselling and rehabilitation programs as directed by the probation officer for psychological issues and sexual behaviour; Not to be within 50 metres of 23 Grandravine Drive, Toronto; Not to attend or be within 50 metres of a public swimming pool, splash pad, or wading pool; Not to communicate with S.P., D.M., K.H., G.M., A.B., directly or indirectly; Not to be within 100 metres of where S.P., D.M., K.H., G.M., A.B., live, work, go to school or are known by you to be.

[79] These are primary compulsory designated offences pursuant to s. 487.04 of the Criminal Code, and so I order you to submit a sample of your DNA.

[80] I make a s. 161 Prohibition Order prohibiting you for 3 years from:

s. 161(1)(a) attending within 50 metres of a swimming a public swimming pool, splash pad, or wading pool;

s. 161 (1)(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.

[81] I waive the victim fine surcharge as Mr. Maftoon will be in custody which may affect his employment.

[82] I thank both counsel for their comprehensive materials and submissions.

Released: November 10, 2022 Signed: Justice Cidalia C. G. Faria

[1] R. v. Maftoon, 2021 ONCJ 583 [2] Applicant Application, Tab 2, Factum, paragraph 6. [3] Respondent Factum #2, Schedules B, C, and D [4] Respondent Book of Authorities #2, Tab 1 [5] Respondent Factum #2, paragraphs 4-5. [6] Exhibit 1 on Sentence: Pre-Sentence Report, dated December 9, 2021, author David Brown, pages 4-5. [7] Exhibit 1 on Sentence: Pre-Sentence Report, dated December 9, 2021, author David Brown, page 5. [8] Exhibit 1 on Sentence: Pre-Sentence Report, dated December 9, 2021, author David Brown, page 5.