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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2023 04 04 COURT FILE No.: Brampton 21- 3990
B E T W E E N :
HIS MAJESTY THE KING
— AND — DARCY MARTIN
Before: Justice M.C.T. Lai
Heard on: January 16 and February 23, 2023 Reasons for Sentence released on: April 4, 2023
Counsel: Emily Beaton ....................................................................................... counsel for the Crown Jordan Gold ...................................................................................... counsel for the accused
LAI J.:
A. OVERVIEW
[1] On January 16, 2023, Darcy Martin pleaded guilty to one count of Sexual Interference, contrary to s. 151 of the Criminal Code. I heard sentencing submissions on February 23, 2023.
[2] These are my reasons for sentence.
B. FACTS OF THE OFFENCE
[3] Mr. Martin admitted the following facts.
[4] A.P. was 15 years old. On March 30, 2020, the victim connected with Mr. Martin via Ashley Madison, an online dating service, for the purpose of sexual intercourse. Mr. Martin and A.P. started an online conversation during which A.P. told Mr. Martin that she was 15 years old. Upon learning this, Mr. Martin told A.P. to switch to Snapchat to continue with the conversation. Exhibit 1 on the guilty plea proceedings is their exchange of text messages through ashleymadison.com:
NOTE: This judgment is under a publication ban described in the WARNING page(s) at the start of this document. If the WARNING page(s) is (are) missing, please contact the court office.
Mr. Martin: Hi how are you doing? I’d love to chat and get to know you, I’m a experienced white male that is very gentle and loving, I would love to take your virginity and make you feel like a princess while it happens:) You will cum and feel amazing
A.P.: Hello! Well I might be to young…
Mr. Martin: Hi how are you? You are not to young for me, unless you feel I am to old?:)
A.P.: Well I’m actually 15…
Mr. Martin: Oh?
A.P.: Yea… I didn’t know where else to look to get this sort of “help”
Mr. Martin: And what age you looking for?
A.P.: Someone to take my virginity
Mr. Martin: I’d like to meet you and talk about it Do you have tx or Snapchat?
A.P.: I have Snapchat
Mr. Martin: Send me a Snapchat [user name redacted]
A.P.: Added
[5] While on Snapchat, Mr. Martin facilitated a meeting with A.P. and arranged to take her to a hotel for the purpose of sexual intercourse.
[6] On March 31, 2020, at 10 a.m., Mr. Martin met A.P. at a 7-11 and drove her to a Monte Carlo Inn in Brampton. He then led her to a room where they engaged in sexual intercourse. He drove her back to the 7-11 and dropped her off. A.P. returned home. She disclosed to her mother, who notified the police.
C. IMPACT OF THE OFFENCE
[7] Exhibit 2 on the sentencing hearing is A.P.’s victim impact statement. Exhibit 3 on the sentencing hearing is the victim impact statement of A.P.’s mother, S.P. 1 The statements are candid, compelling, and heart-wrenching. The below summary does not fully capture the trauma that Mr. Martin has inflicted on A.P. and S.P.
[8] A.P. describes how Mr. Martin has made her hate herself and her body. How she still feels dirty and disgusted. How she still throws up thinking of what he made her do and what he did to her. How she sleeps a lot so that she doesn’t have to think, but sleep does not release her from her nightmares. How she feels uncomfortable around men now, including her father and her younger brother – both of whom she loves a lot – which makes her feel so broken. A.P. suffers from persistent depression, anxiety, and low self- esteem. She feels that counselling will only remind her of her trauma. She relies on anti- depressants for help. She sums it up as follows:
After his offence, I started to feel numb more often, I had started to miss school a lot, sometimes I couldn’t make sense of what is wrong and right anymore, I didn’t care about myself anymore, I felt dead from the inside, my suicidal thoughts had become stronger, I just fell deeper into this dark world of feeling overwhelmingly depressed.
I struggle to choose to “live” everyday, I love my family, I appreciate everything they have done for me and continue to do so, I know they have unconditional and eternal love for me, so I want to live for them, but sometimes thinking of committing suicide feels like the best solution to end the struggle, the suffering that I face every single day of my life because of the impact of his sexual assault on me.
[9] S.P. describes how Mr. Martin’s offence has made her heartbroken, terrified, and shattered into pieces. A.P. is her precious little girl. A.P.’s pain is her pain. S.P. sees A.P. suffering every second of every day, and it breaks her. S.P. is afraid everyday that she will find A.P.’s dead body when she returns home. S.P. sums it up as follows:
It’s very hard to continue on in life and do what’s expected of you in your personal and professional life. …Sometimes I am distracted by my daughter confiding in me of how low she feels and wants to end her life, I am constantly counselling her and then I try to get back to work mode. I have the fear of becoming an incompetent worker and losing my job and not being able to afford our living.
…I cry nearly every night knowing my daughter is crying in her room, I have low self-confidence now thinking I couldn’t protect my baby girl, I feel like I am the worst mom in this world and at times have suicidal thoughts. … Everyday, the thought of what happened with her comes across my mind, I cry, I feel lost, I then try my best to pull myself together since I have another child to take care of, I have a husband and my baby girl who needs me more than anyone else.
1 On consent of the parties, I have not relied on the portion of S.P.’s statement that does not reflect the admitted facts.
[10] Mr. Martin’s offence has also damaged S.P.’s marriage with A.P.’s father. S.P. reminds the court that “there is not only one victim, everyone is victimized who becomes aware of this traumatic experience, such as, us parents, siblings, extended family members and supporters.” Mr. Martin has “robbed our family from all the happiness of our lives that we all deserved to have but no longer have or feel”.
D. THE CIRCUMSTANCES OF THE OFFENDER
[11] Mr. Martin was 33 years old at the time of his offence. He is now 36 years old. He is self-employed in the agricultural sector. He owns three businesses. His employment is demanding. The tasks vary by season. He operates heavy equipment. He performs maintenance. He is responsible for office work and administrative tasks. Mr. Martin has limited formal education, but it is clear that he is a hard worker, that he has keen practical skills and mechanical aptitude, and that he is a good provider for his family.
[12] Mr. Martin has been married to Kayla Martin for 12 years. They have a five-year- old son and a seven-year-old daughter. Mrs. Martin’s work is largely focused on the household and on their children. Her work outside the home generates a limited income of about $20,000 per year.
[13] Exhibit 1 on the sentencing hearing is Mr. Martin’s criminal record. It is an entry from April 13, 2015, for sexual assault. He received a suspended sentence and 12 months probation.
[14] Exhibit 4 on the sentencing hearing is a volume of defence sentencing material. That material falls into one of two categories: materials from a social worker, and character references from Mr. Martin’s family.
(i) Materials from social worker
[15] Doug Cochrane is a registered social worker and certified sex addiction therapist. Mr. Cochrane wrote a letter dated February 6, 2023, and attached a copy of Mr. Martin’s treatment plan. 2 He provided the following information:
Mr. Cochrane has met with Mr. Martin about twice a month since December 14, 2020, “to address Mr. Martin’s addiction issues and help him understand what brought him to these behaviours”.
Mr. Cochrane believes that Mr. Martin “now understands what led him to this compulsive acting-out and escape from reality. His years of stifling his anger, and on-going mistrust of others, sent him to a dangerous place of numbing-out and escaping”.
2 The treatment plan is dated January 15, 2020, but I infer from context that it was meant to be dated January 15, 2021.
Mr. Cochrane believes that Mr. Martin was “jolted” by the prospect of “facing another jail term”, sought help to “forever change”, and “now understands what he needs to do, and have in place, to stay safe and sober”.
Mr. Cochrane advises that Mr. Martin attends 12-step meetings and continues to meet with him.
Mr. Cochrane advises that Mr. Martin is remorseful for his past behaviour and “now understands what took him down that path”.
[16] In submissions, defence counsel elaborated that Mr. Martin has attended the Sexaholics Anonymous 12-step program for 2 years. The closest meeting is a 3-hour round-trip from where Mr. Martin lives. In the fall, winter and spring, Mr. Martin attends those meetings on a weekly basis.
(ii) Character references from family
[17] Marlin Gingrich has known Mr. Martin since his youth. They attended church together and share many interests, including their professional agricultural pursuits. “In more recent years”, Mr. Martin asked Mr. Gingrich to be an internet accountability partner, through the use of “Covenant Eyes” software. Mr. Gingrich agreed. Covenant Eyes sends Mr. Gingrich a daily report on Mr. Martin’s internet and social media activity. Mr. Gingrich and Mr. Martin have had serious conversations about Mr. Martin’s past and about the offences before the court. Mr. Gingrich believes that Mr. Martin has taken responsibility and shown deep remorse for the offence before the court.
[18] Paul Martin is Mr. Martin’s father. He describes Mr. Martin as a man who is “very sensitive to those around him”, “extremely unselfish”, “quiet by nature”, an “introvert”, and “well known in the community for his honesty in business and for going the ‘extra mile’ to do a job well”. He has since learned from Mr. Martin the extent to which his addictions grew and controlled him. He advises that Mr. Martin “shared his inner struggles to us and asked for full accountability and counselling”.
[19] Mrs. Martin is Mr. Martin’s wife. She describes Mr. Martin as “an upstanding member of the community” and a “wonderful father” to their two children. She advises that this “is not who he is deep in his heart”, and that Mr. Martin has taken “the necessary steps to change his life” since the offence by doing counselling and attending SA meetings. In submissions, defence counsel elaborated that Mr. Martin has voluntarily provided Mrs. Martin with GPS monitoring ability through an application called Life360.
[20] Matthew Gingrich is Mr. Martin’s brother-in-law and Mrs. Martin’s younger brother. He describes Mr. Martin as a “dedicated friend” who “treats people with respect and takes an interest in their lives”, and as a “very hard working man” who is passionate about his agricultural profession.
[21] Stafford and Beth Gingrich are Mr. Martin’s parents-in-law. They describe Mr. Martin as loving, respectful and caring towards their daughter, a “gentle man by nature” with “a big heart”, an “incredibly hard worker” and a good provider for his family. They explain how, unbeknownst to them, Mr. Martin “spiralled into bitterness and anger”, and into the addiction and behaviour that led to the offence before the court. They describe how Mr. Martin, after his arrest, invited them and his parents to his home, where he confessed to them “all his sins with tears of repentance”, and how Mrs. Martin, “although devastated and hurt to the core, chose to stay with him”. They describe Mr. Martin’s honest effort to “overcome his addictions and rebuild a life of integrity and trust”, to rebuild his marriage, and to turn his life around. They admire Mr. Martin’s taking of full responsibility and “grieve along with him for those who were hurt along the way”. They earnestly believe that Mr. Martin has had a real change of heart.
E. THE LEGAL PARAMETERS
[22] The Crown proceeded by indictment. Section 151 (a) provides that Mr. Martin is liable to imprisonment for a term of not more than 14 years. The Court of Appeal for Ontario has held that the mandatory minimum of 1 year imprisonment is unconstitutional. 3
3 R. v. B.J.T., 2019 ONCA 694.
F. THE POSITIONS OF THE PARTIES
(i) Length and Nature of the Custodial Term
[23] The Crown seeks a sentence of 3.5 years, followed by 2 years probation. Unfortunately, s. 731(1)(b) of the Criminal Code would prevent me from making a probation order if I imposed the jail sentence requested by the Crown. 4
4 731 (1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, (b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order.
[24] Defence counsel seeks a sentence of 2 years custody, followed by 2 years probation. He proposes the following terms for the probation order:
Report within 48 hours of release and thereafter as required.
No contact with A.P.
No attendance at any place A.P. known to be.
Counselling as directed.
No weapons.
Maintain your internet accountability partnership with Marlin Gingrich, including the use of Covenant Eyes, unless Mr. Gingrich is unwilling or unable to continue with the partnership.
(ii) Ancillary Orders
[25] The Crown seeks an order pursuant to s. 161(1)(b) of the Criminal Code, 5 which would prohibit Mr. Martin 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. Defence counsel does not object to this order.
5 Section 151 is an offence referred to in s. 161(1.1)(a) of the Criminal Code.
[26] The Crown seeks a lifetime weapons prohibition under s. 109 of the Criminal Code. 6 This order is mandatory by operation of ss. 109(1)(a) and (3). It would prohibit Mr. Martin from possessing any firearm, cross-bow, restricted weapon, ammunition and explosive substance for life. Defence counsel does not object.
6 The admitted facts establish that Mr. Martin committed an indictable offence in the commission of which violence against a person was used and for which Mr. Martin may be sentenced to imprisonment for ten years or more, within the meaning of s. 109(1)(a) of the Criminal Code. This is not a first offence within the meaning of s. 109(2) of the Criminal Code.
[27] The Crown seeks a DNA order under s. 487.051(1) of the Criminal Code. 7 This order is mandatory unless I am satisfied that Mr. Martin has established that the impact of such an order on his privacy and security of the person would be grossly disproportionate to the public interest in the protection of society and the proper administration of justice, to be achieved through the early detection, arrest and conviction of offenders. Defence counsel does not object.
7 Section 151 is a primary designated offence referred to in s. 487.04, enumerated under (a)(i.1) of the definition.
[28] The Crown seeks an order that Mr. Martin comply with the provisions of the Sex Offender Information Registration Act. In R. v. Ndhlovu, 8 the Supreme Court of Canada declared that mandatory registration under s. 490.012 of the Criminal Code, and lifetime registration of repeat offenders under s. 490.013(2.1) of the Criminal Code, were unconstitutional. Defence counsel agrees that a SOIRA order is appropriate for a lengthy period but not for life.
[29] The declaration of invalidity with respect to mandatory registration was suspended for one year and applies prospectively. Defence counsel has not sought an exemption from the suspension under s. 24(1) of the Charter.
[30] The declaration of invalidity with respect to lifetime registration was immediate and applies retrospectively. Pursuant to s. 490.012(3) of the Criminal Code, which remains in force given the one-year suspension, and s. 490.013(2)(b) of the Criminal Code, the order in Mr. Martin’s case will end 20 years after it is made. 9
9 Ndhlovu, supra at para. 142.
[31] The Crown seeks a Victim Fine Surcharge pursuant to s. 737 of the Criminal Code. Defence counsel does not object.
G. ANALYSIS
(i) Governing principles
[32] Section 718.1 of the Criminal Code provides that proportionality is the fundamental principle of sentencing. Mr. Martin’s sentence must be proportionate to the gravity of his offence and to his degree of responsibility.
[33] Section 718 of the Criminal Code provides that the fundamental purpose of Mr. Martin’s sentence is to protect society and to impose a just sanction that has one or more of the following objectives:
(a) to denounce Mr. Martin’s unlawful conduct and the harm that his conduct did to the victims or to the community;
(b) to deter Mr. Martin and other persons from committing offences;
(c) to separate Mr. Martin from society, if necessary;
(d) to assist in rehabilitating Mr. Martin;
(e) to provide reparations for the harm Mr. Martin did to victims or to the community; and
(f) to promote a sense of responsibility in Mr. Martin, and acknowledge the harm he did to the victims or to the community.
[34] Section 718.2(d) provides that Mr. Martin should not be deprived of liberty if less restrictive sanctions may be appropriate, and s. 718.2(e) requires me to consider all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to the victims or to the community.
[35] Section 718.01 of the Criminal Code provides that because I am sentencing Mr. Martin for an offence that involved the abuse of a person under the age of eighteen years, I must give primary consideration to the objectives of denunciation and deterrence of such conduct. In R. v. Friesen, the Supreme Court of Canada gave the following guidance to sentencing judges: 10
…we send a strong message that sexual offences against children are violent crimes that wrongfully exploit children's vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences 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. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large.
10 R. v. Friesen, 2020 SCC 9, at paras. 1 and 5.
[36] The Court then made comments about six specific aspects of determining a fit sentence for sexual offences against children, which I address later in my reasons: 11
a) Likelihood to re- offend. 12
b) Abuse of a Position of Trust or Authority. This aggravating factor is not present in this case.
c) Duration and Frequency. 13
d) Age of the Victim. 14
e) Degree of Physical Interference. 15
f) Victim Participation. 16
11 Friesen, supra at paras. 121-154. 12 I address this factor below at paras. 49-51. 13 I address this factor below at para. 56. 14 I address this factor below at paras. 40-41. 15 I address this factor below at para. 44. 16 I address this factor below at para. 57.
[37] Section 718.2(a) of the Criminal Code requires me to increase or reduce a sentence to account for any relevant aggravating or mitigating circumstances relating to Mr. Martin or to his offence.
(ii) Aggravating Circumstances
[38] There are a number of aggravating factors in this case.
[39] First, Mr. Martin has a related criminal record, consisting of a 2015 entry for sexual assault. In submissions, defence counsel advised that the circumstances were different than the offence before the court.
[40] Second, Mr. Martin abused a person under the age of eighteen years: s. 718.2(a)(ii.1) of the Criminal Code. A.P. was only fifteen years old. Adolescent girls like A.P. are vulnerable. Adolescence can be “a confusing and challenging time for young people as they grow and mature, navigate friendships and peer groups, and discover their sexuality”. 17 As the Supreme Court recognized in Friesen, 18
…courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent. Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, even though adolescents may be an age group that is disproportionately victimized by sexual violence… . In particular, sexual violence
17 Friesen, supra at para. 153. 18 Friesen, supra at para. 136.
by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy… . [Citations omitted.]
[41] Third, there was a significant age difference. Mr. Martin was 18 years older than A.P. 19 The discrepancy in their relative age, life experience, and psychosocial and sexuality maturity underscores the significance power imbalance between them.
19 R. v. H.M., 2023 ONSC 1002, at para. 17.
[42] Fourth, it is abundantly clear from the victim impact statements that Mr. Martin’s offence had a significant impact on A.P. and on her mental health: s. 718.2(a)(iii.1) of the Criminal Code. In Friesen, the Supreme Court recognized that sexual violence against children has the potential to cause several forms of harm. Harm that can manifest during includes “self-destructive behaviour, such as suicide…an inability to make friends and non-participation in school activities; guilty feelings and shame; a lack of trust…; low self- esteem; an inability to concentrate in school and a sudden drop in school performance; an extraordinary fear of males; …sleep disturbances and nightmares; …anxiety and extreme levels of fear; and depression”. A.P.’s victim impact statement makes it clear that those potential harms have materialized and are all too real for her. 20
[43] Fifth, Mr. Martin’s offence has devastated A.P.’s mother, S.P., and her mental health: s. 718.2(a)(iii.1) of the Criminal Code. In Friesen, the Supreme Court recognized that sexual violence against children does not harm only the direct victim. It can “destroy parents and caregivers’ trust in friends, family, and social institutions and leave them feeling powerless and guilty”. They “may also bear the financial, personal, and emotional costs of helping their children recover and cope with emotional and behavioural challenges”. S.P.’s victim impact statement makes it clear that those potential harms have manifested and taken root in her life.
[44] Sixth, the degree of physical interference. There is no hierarchy of physical acts for the purposes of determining the degree of interference; each offence must be characterized on its on circumstances. In this case, Mr. Martin had penetrative vaginal intercourse with a 15-year-old child who was a virgin. A.P. had the right to develop into adulthood free from sexual interference and exploitation by adults. 21 Mr. Martin’s offence was a gross violation of A.P.’s personal and sexual autonomy, which increases the wrongfulness of the sexual violence that he perpetrated. 22
21 Friesen, supra at para. 52. 22 Friesen, supra at paras. 137-147.
(iii) Mitigating Circumstances
[45] There are a number of mitigating circumstances in this case.
[46] First, Mr. Martin pleaded guilty. This was not an early guilty plea. Mr. Martin pleaded guilty on the first day of his preliminary hearing, just short of three years after the offence. However, his decision has spared A.P. the additional trauma of testifying about what he did to her, and saved valuable court resources. It is entitled to significant weight.
[47] Second, I accept, based on the guilty plea and the information contained in the letters of support, that Mr. Martin is genuinely remorseful, and that he has accepted responsibility for his offence.
[48] Third, Mr. Martin’s offence stems from a sex addiction. Addiction can be a mitigating factor where it has some connection with the criminal conduct in issue. 23 To be clear, Mr. Martin was not prosecuted for engaging in extra-marital sexual activity. He was prosecuted for engaging in sexual activity with a child. At first, I was concerned that his counselling and rehabilitative programming did not speak to sexual offending against children. Defence counsel has since persuaded me that Mr. Martin’s proactive efforts do in fact directly address the root causes of the offence before the court.
23 R. v. Barham, 2014 ONCA 797 at para. 8; R. v. W.V., 2022 ONCJ 278 at para. 57.
[49] However, the fact that Mr. Martin could not control his impulses when directly confronted with a 15-year-old girl underscores the severity of his addiction. This is relevant to his likelihood of reoffence, which in turn is relevant to whether this court needs to separate Mr. Martin from society in order to protect vulnerable children in the short- term, and whether his rehabilitation will achieve long-term protection of the public.
[50] This takes me to the fourth mitigating factor. I accept, based on Mr. Cochrane’s letter, that Mr. Martin has gained insight into the drivers of his criminality and taken steps to reduce his likelihood of re-offending. As the Supreme Court of Canada held in Friesen, Mr. Martin’s expression of remorse gains added significance “when it is paired with insight and signs that the offender has “come to realize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending ”. 24
24 Friesen, supra at para. 165, citing R. v. Anderson (1992), 74 C.C.C. (3d) 523 (B.C.C.A.), at p. 536 (emphasis in original).
[51] To be clear, I do not rely on Mr. Cochrane’s opinion that Mr. Martin is not a threat to re-offend or a threat to society any longer. I have no evidence that Mr. Cochrane has the forensic expertise to offer any such opinion. Indeed, the evidence before me suggests that Mr. Martin will require ongoing support to manage his recovery, and that his recovery – and thus his risk mitigation – is a process without a fixed end point. I do, however, accept Mr. Cochrane’s observations that Mr. Martin has demonstrated commitment to counselling and programming, which is relevant to Mr. Martin’s rehabilitative prospects.
[52] Fifth, Mr. Martin has a supportive family and a positive employment history. I note, however, that any character evidence about Mr. Martin’s morality or reputation in the community is entitled to diminished weight. Sexual violence involving children occurs in private and in most cases will not be reflected in an offender’s reputation in the community. Indeed, Mr. Martin hid that part of himself through the use of the internet, and committed his offence in a community that was not his own.
[53] Sixth, Mr. Martin has been on bail for almost three years without re- offending.
(iv) Circumstances that are neither aggravating nor mitigating
[54] I want to be clear about certain features of this case that are neither aggravating nor mitigating.
[55] First, defence counsel submitted that it is an important feature that Mr. Martin did not set out to find a child; instead, he unexpectedly encountered a child on an adult dating site and took advantage of the situation. I do not agree that this distinction meaningfully impacts Mr. Martin’s moral blameworthiness. A.P. was a 15-year-old child seeking the sexual attention of an adult on the Internet. As Fairburn J. (as she then was) wrote in J.D.: 25
Where children appear to be seeking out such attention, it is often an outward manifestation of the child’s confusion arising from personal difficulties. It is the legal responsibility of adults who are faced with children who already exhibit signs of struggle, to protect them. Adults who see these situations as opportunities to satisfy their own sexual urges, are no better or worse than those who take steps to actively seek out their victims.
25 R. v. J.D., 2015 ONSC 5857, cited with approval in Friesen, supra at para. 154.
[56] Second, the fact that Mr. Martin only abused A.P. on one occasion is not mitigating. It is only the absence of an aggravating factor.
[57] Third, and as defence counsel fairly acknowledged, it is an error of law to treat A.P.’s role as a mitigating factor. Indeed, it is an error of law to treat a victim’s participation as a legally relevant consideration. Victim participation may coincide with the absence of certain aggravating factors, but that is all. Adults like Mr. Martin, “not children, are responsible for preventing sexual activity between children and adults”. 26
26 Friesen, supra at para. 154.
(v) Other cases
[58] Section 718.2(b) of the Criminal Code sets out the principle of parity. Mr. Martin’s sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
[59] The parties provided me with a number of cases. I have reviewed them all. They were helpful in situating this case among similar and dissimilar cases leading to particular outcomes. Each case is captive to its own facts, 27 but sentencing precedents reflect “the range of factual situations in the world and the plurality of judicial perspectives. … They are the practical expression of both parity and proportionality.” 28
27 R. v. Zarafonitis, 2013 ONCJ 570, at para. 14. 28 Friesen, supra at para. 33.
[60] In addition to the cases cited by the parties, I note the following decisions:
R. v. MacLean, 2021 NLCA 24, 29 a post- Friesen case in which the Newfoundland Court of Appeal allowed a Crown appeal against a 90-day intermittent sentence and imposed a sentence of three years. Mr. MacLean was a 21-year-old first offender. He had sexual intercourse with a 12-year-old girl. They met over Snapchat. They only met in-person once, for the purpose of sexual intercourse.
R. v. Hajar, 2016 ABCA 222, 30 a pre- Friesen case pursuant to which the Alberta Court of Appeal has endorsed that “sentencing for the unlawful sexual touching of a child that includes oral or penile intercourse should most often be in the range of three years, where significant mitigating or aggravating features are absent”.
29 R. v. MacLean, 2021 NLCA 24. 30 R. v. Hajar, 2016 ABCA 222; see R. v. Collins, 2023 ABKB 134 at paras. 41-46, in which Devlin J. explains why this qualitative guidance remains good law after R. v. Parranto, 2021 SCC 46.
[61] I further note that in Friesen, the Supreme Court of Canada holds that “mid-single digit penitentiary terms for sexual offences against children are normal and that upper- single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.” 31
31 Friesen, supra at para. 114.
H. THE APPROPRIATE LENGTH OF SENTENCE
[62] The parties agree that a sentence of incarceration is warranted in Mr. Martin’s case. They part ways on the appropriate length of that custodial term.
[63] To be clear, any sentence I impose will not erase the pain that Mr. Martin has inflicted. No number will do that. My role is to impose a sentence that reflects the profound wrongfulness and harmfulness of Mr. Martin’s offence, but also balances the competing sentencing objectives and takes into considering the circumstances specific to Mr. Martin and to this case.
[64] Balancing the above mix of the mitigating and aggravating circumstances, I am satisfied that the appropriate sentence is three years imprisonment. A three-year sentence fulfills the primary objectives of denunciation and deterrence. It gives effect to Mr. Martin’s mitigating circumstances, to his positive rehabilitative prospects, and to the other secondary sentencing objectives, including the acknowledgment of the profound and irreparable harm that Mr. Martin has caused A.P., S.P. and their family. In my view, any lesser sentence would fail to properly balance these competing considerations.
I. CONCLUSION
[65] Mr. Martin, please stand. I sentence you to 3 years in custody.
[66] In addition to the period of imprisonment, I am making the following ancillary orders:
A lifetime weapons prohibition under s. 109 of the Criminal Code;
A DNA order under s. 487.051(1) of the Criminal Code;
A SOIRA order for 20 years under s. 490.012(3) of the Criminal Code;
A Victim Fine Surcharge under s. 737 of the Criminal Code;
A prohibition order for 10 years under s. 161(1)(b) of the Criminal Code;
[67] There are two remaining issues on which I will invite submissions from the parties.
[68] First, the Crown did not seek an order under s. 161(1)(d) of the Criminal Code in part because the parties were jointly seeking a term of probation that would require Mr. Martin to maintain his internet accountability partnership with Mr. Gingrich. Since I cannot make a probation order, I invite submissions about the propriety of an order for two years along the same terms, e.g. one that would prohibit Mr. Martin from using the Internet or other digital network (i) unless he maintains his internet accountability partnership with Marlin Gingrich, including the use of Covenant Eyes, or (ii) unless he establishes another internet accountability partnership, including the use of Covenant Eyes, with a person approved of by a named family member – for example, by Mrs. Martin.
[69] I also invite submissions about the propriety of an order under s. 743.21 of the Criminal Code, which would prohibit Mr. Martin from contacting A.P., directly or indirectly, while he is serving his custodial sentence.
[70] Mr. Martin, this sentence is the consequence of your actions. But I believe that you are a man of your word, and that you are committed to change. You are blessed to have the support and love of your family. I have read their heartfelt letters of support. They will welcome you home when you have accounted for what you have done. Many people are not so fortunate. Your family has placed their faith in you. I sincerely hope you will not break that faith.
[71] I thank the parties for their careful presentation of this case and their helpful submissions on sentence.
Released: April 4, 2023 Signed: Justice Mabel Cheuk Ting Lai