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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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.

DATE: August 1, 2024

ONTARIO COURT OF JUSTICE Toronto

BETWEEN: HIS MAJESTY THE KING — AND — LORNE HYTMAN

For the Crown M. Walia For the Defendant L. Board and R. Nanni

Heard: June 24, 2024

REASONS for SENTENCE

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] On June 24, 2024, Mr. Hytman pleaded guilty before me to the following five criminal offences:

(1) for a sexual purpose, surreptitiously making a visual recording of I.J. who was in circumstances that gave rise to a reasonable expectation of privacy, contrary to section 162 (1) (c) of the Criminal Code.

(2-5) Criminal harassment of A.H., C.Z., A.Y. and J.C. by repeatedly following them from place to place knowing that they were harassed or being reckless as to whether they were harassed, causing them to reasonably fear for their personal safety, contrary to section 264 (2) (a) of the Criminal Code of Canada.

B. THE CIRCUMSTANCES OF THE OFFENCES

[2] A detailed agreed statement of fact was filed as an exhibit and should be consulted by the reader for a full understanding of the circumstances of the offences.

[3] In summary, on two separate days in May and one day in June 2022, Mr. Hytman followed C.Z., a 16-year-old female student and her friend as they walked around the Yonge and Eglinton area in the City of Toronto. Both girls saw what he was doing and felt uncomfortable. One of them called her father asking for help.

[4] On June 13, 2022, A.H., a 16-year-old female student, and her friend were in the same area when they noticed Mr. Hytman following them around.

[5] Four days later, on June 17, 2022, Mr. Hytman followed A.Y. (16 years old) and her friends with his cell phone in his hand.

[6] On June 21, 2022, A.Y. again noted that she was being followed by Mr. Hytman.

[7] On May 11, 2023, J.C., a 16-year-old high school girl, and her friends were in a store in the Yonge and Eglinton area of Toronto. Mr. Hytman followed her as she returned home. He was holding his cellular phone by his thigh with the camera pointed in her direction.

[8] On May 15, 2023, A.A. and C.P., both 16-year-old female high school students, were followed down the street by Mr. Hytman who took a video of them from approximately one foot away. Later that same day Mr. Hytman followed I.J., a 14-year-old student. He recorded a video focussed on her buttocks.

[9] Mr. Hytman was arrested on May 15, 2023, after police observed him following young girls with his cell phone camera pointing in their direction. His cell phone was seized by police who executed a search warrant on the phone on or about November 9, 2023.

C. THE IMPACT ON THE VICTIMS

[10] Victim impact statements from A.A. and from I.J.’s father were received into evidence.

[11] A.A. describes how she was disgusted and frightened when she saw the video that Mr. Hytman had taken of her buttocks. Her schoolwork has suffered, she has lost weight and suffers from mood swings. She has consulted a psychiatrist.

[12] I.J.’s father reports that as a result of this crime his daughter has become withdrawn, isolated, highly anxious and depressed. Her schoolwork has also suffered. She began cutting herself and is undergoing therapy.

D. THE CIRCUMSTANCES OF THE OFFENDER

[13] Mr. Hytman is now 58 years old and a first offender. [1] He has been married to Elize Rubenzahl for 10 years. She speaks very highly of his character as do his three brothers and his best friend. They all describe Mr. Hytman as a loving, supportive individual who would never hurt anyone.

[14] Mr. Hytman was employed as a realtor and property manager but has lost those positions as a result of these charges. He is supported by his wife’s income.

[15] Counsel filed a March 2, 2024 report from Dr. Monik Kalia, a clinical and forensic psychologist. It is apparent from the report that this is not the first time that Mr. Hytman has faced criminal charges arising out of his “long-standing problems related to his voyeuristic behaviour” as described by Dr. Kalia. In response to those earlier charges, the details of which are not before me, Mr. Hytman underwent 28 hours of counseling with Dr. Kalia and made some progress, but that progress was not permanent. After being charged with the offences before me, Mr. Hytman re-enrolled in more rigorous counselling with Dr. Kalia, this time with resort to medication, specifically, Prozac (presumably prescribed by Mr. Hytman’s physician), which is being used as an anti-depressant and as a libido suppressor.

[16] Dr. Kalia, after 11 “new” sessions, is of the opinion that Mr. Hytman’s attitude towards counselling has improved and is fortified by his family support.

[17] A social worker, Joanne Smith, reports on April 3, 2024, that Mr. Hytman and his wife have been undergoing couples counseling with her since February 2024.

[18] Mr. Hytman has been attending weekly meetings of “Sexaholics Anonymous” since June 2023.

E. THE POSITIONS OF THE PARTIES

[19] Ms. Walia seeks a 6-month conditional sentence followed by a three-year probation order and a DNA order.

[20] Ms. Board and Mr. Nanni argue for a suspended sentence with a two-year probation order.

F. THE PRINCIPLES OF SENTENCING

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

[22] 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.

[23] 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."

[24] 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.

G. THE AGGRAVATING CIRCUMSTANCES

[25] Mr. Hytman’s behaviour certainly qualifies as persistent and involves several young, and thus vulnerable, victims, two of whom have suffered significantly from Mr. Hytman’s attack on their privacy and sexual integrity.

H. THE MITIGATING CIRCUMSTANCES

[26] Mr. Hytman has apologized to the victims, and I find his apology to be genuine. He has expressed remorse to the Court both in words and by pleading guilty. His guilty plea and associated admissions have saved several young witnesses the pain and embarrassment of testifying and have relieved the prosecution of the need to prove Mr. Hytman’s “sexual purpose”, among other essential elements of the offences. The guilty plea also represents the abandonment of several Charter arguments that might have been made involving the seizure of evidence.

[27] Mr. Hytman’s status as a first offender also tends to mitigate sentence.

[28] Mr. Hytman’s arrest was reported in the press with his name and picture, giving rise to significant embarrassment and job loss.

[29] Ms. Board argues further that the delay in providing Mr. Hytman a bail hearing after his arrest should also act in mitigation of sentence.

I. THE MOST RELEVANT PRECEDENTS

[30] As stated above, 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, supra at para 2.

[31] Defence counsel supplied a collection of jurisprudence that is somewhat helpful, although none of the cases is quite on point. i.e. involving both voyeurism with young girls and criminal harassment.

[32] In R. v. Lamarre, 2021 QCCQ 12814, the accused, who was a first offender pleaded guilty to voyeurism and received a conditional discharge. Over the course of several months, he had surreptitiously recorded “upskirt” films of adolescent girls and young women.

[33] In R. v. Eastwood, 2018 ONCJ 469 Harris J. sentenced the first offender to a conditional discharge on a guilty plea to voyeurism for having placed a recording device under the dresses of three of his company’s employees.

[34] In R. v. S.B., [2019] O.J. No. 5696, Maxwell J. imposed a conditional discharge on a guilty plea to one count of voyeurism. The first offender had hidden a camera in the women’s bathroom at his place of business.

J. ANALYSIS

(a) The bail hearing delay

[35] Mr. Hytman first appeared in court for a bail hearing on these charges in the morning of May 16, 2023, the day after his arrest. Ms. Board appeared as counsel and was ready to proceed. Due to a want of court resources the hearing could not be reached and was adjourned to the following day when Mr. Hytman was ordered released. Ms. Board argues that this delay constitutes a breach of s. 503 of the Criminal Code and a breach of Mr. Hytman’s s. 11(e) Charter rights, the remedy for which is mitigation of sentence. Ms. Walia points out that no Charter application was brought by Mr. Hytman in the context of this sentencing hearing and that a Charter ruling in the absence of a full hearing is not appropriate. Ms. Board replies by arguing that even without a formal ruling in this regard, mitigation of sentence is still available following the Supreme Court’s decision in R. v. Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206.

[36] I have reviewed the exhibit transcript of Mr. Hytman’s first bail appearance when his bail hearing was not reached. As far as I can see, the reason that Mr. Hytman was not dealt with, and had to spend another night in detention, is beyond dispute. The state failed to provide sufficient resources to accommodate his hearing. I fail to see what evidence might have been called by the Crown to support any other conclusion. In my view, even without a hearing on the issue I can properly find that Mr. Hytman’s s.11(e) Charter rights were breached. See R. v. Brown, [2007] O.J. No. 2830 (Sup. Ct. J.); R. v. Zarinchang, 2010 ONCA 286; R v. Simonelli, 2021 ONSC 354; R. v. Christopher Marchant and Steven Snively, 2022 ONSC 263.

[37] Even if I am wrong about this delay resulting in a Charter breach, I am of the view that the negative impact on Mr. Hytman as a result of state action meets the test in R. v. Nasogaluak, supra, and I should thus take it into account in mitigation of sentence.

(b) Balancing the objectives of sentencing

[38] These offences are serious. Mr. Hytman’s prolonged criminal behaviour caused several young girls to fear for their safety. He compromised the privacy and sexual integrity of three of them, all in pursuit of his sexual satisfaction. There is every indication that Mr. Hytman suffers from some sort of over-active libido that is aimed at adolescent girls. While it is too early to say that this problem is intractable, he has already failed once in his efforts to control it.

[39] Yet Mr. Hytman clearly recognizes his problem and is making significant efforts to deal with it. I accept that he has a profound understanding of the damage he has done to his victims and is extremely remorseful. He is otherwise of very good character and is a first offender who was mistreated by the state after his arrest.

[40] The sentence I impose must make it clear to Mr. Hytman that whatever his sexual proclivities, he must learn to control them and learn that there is a price to pay for failing to do so. That sentence must focus on providing a mandated structure in which he continues to undergo counselling and medical attention.

[41] The sentence sought by the prosecution, a conditional sentence, is a sentence of imprisonment, albeit in the community. In my view, in consideration of all the circumstances, a sentence of imprisonment is not required. A suspended sentence with probation on proper terms best satisfies the principles of sentencing.

K. CONCLUSION

[42] The details of the sentence I impose are as follows:

• Sentencing is suspended
• Probation for three years on the following conditions.
  1. Keep the peace and be of good behaviour.
  2. Appear before the court when required to do so by the court.
  3. Notify the court or the 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.
  4. Report by telephone at 416 212-2704 or in person at 10 Armoury Street, Toronto (Room 9-100) within four working days and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.
  5. Not to contact or communicate in any way either directly or indirectly, by any physical, electronic, or other means, with A.H., C.Z., A.A., A.Y., I.J. or J.C.
  6. Not to be within 100m of A.H., C.Z., A.A., A.Y., I.J. or J.C.
  7. Do not attend within 100m of the Yonge and Eglinton Centre located at 2300 Yonge Street unless you are driving or are a passenger in a motor vehicle.
  8. Attend and actively participate in all sexual boundaries assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer.
  9. Consult with and continue to follow the medical advice of your doctor.
  10. 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.
  11. Perform 150 hours of community service at a rate of no less than 10 hours/month until the 150 hours are completed.

[43] A DNA sample will be provided at a time to be arranged.

Released on August 1, 2024 Justice Russell Silverstein

Footnotes

[1] Mr. Hytman received a conditional discharge for mischief in 2021. Ms. Walia argued that this finding of guilt deprives Mr. Hytman of first offender status. Mr. Nanni brought to the Court’s attention the Ontario Court of Appeal decision in R. v. Barclay, 2018 ONCA 114 which, at paragraph 44, clearly holds that that is not the case. Ms. Walia then conceded the point.