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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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

Ontario Court of Justice

Date: 2024 09 12 Court File No.: London 22-2310

Between:

HIS MAJESTY THE KING

— AND —

BRADLEY TURNER

Before: Justice M. B. Carnegie

Heard on: November 15th, 2023, February 29th and May 14th, 2024 Reasons for Judgment released on: September 12, 2024

Counsel: H. Palin, counsel for the Crown K. Toews, counsel for the accused B. Turner

Sentencing Judgment

CARNEGIE J. (orally):

[1] In June of 2022, Mr. Turner was working as an Uber driver. This work put him in the company of teenagers, including these victims. While in the victims’ company, he propositioned them suggesting he could be their “sugar daddy”. He described what the relationship entailed, confirmed that they were between 16 and 17 years of age (while, in fact, they were 14 and 15 years of age), provided his contact information, counseled them not to disclose this relationship, and later texted and sent them money at their request. When he started pressing them for a face-to-face meeting so that they could do “what all sugar daddies and sugar babies do”, the girls reported these events to their teacher before any sexualized encounters occurred.

[2] Mr. Turner has pled guilty to three counts of obtaining sexual services for consideration from a person under the age of 18 years, contrary to s. 286.1(2) of the Criminal Code. Mr. Turner has no criminal history.

[3] I am now required to sentence Mr. Turner. In so doing, I am called upon to express our community’s disapproval of this conduct by imposing a just sanction. To do so, I must balance the need to deter and denounce this and like behaviour with appropriate restraint that is grounded in Mr. Turner’s personal circumstances and rehabilitative prospects.

[4] A period of incarceration is inevitable in the context of this offending conduct and the Code’s minimum penalty. The Crown seeks a maximum reformatory sentence with substantial community supervision to follow. The defence seeks a 9 month period of incarceration with community supervision. Both agree that SOIRA, DNA and other ancillary orders are required.

[5] On the consent of counsel, and pursuant to s. 669.3 of the Criminal Code, I maintain jurisdiction to complete this sentencing hearing.

Circumstances of the Offence

[6] In June of 2022, Mr. Turner was 55 years of age. He was working as an Uber driver.

[7] The five complainants, S.A., T.M., S.M., A.U., and N.H. were all friends attending the same high school.

[8] On Friday, June 24, 2022, at approximately 12 a.m., the complainants left a party in London, Ontario and called an Uber to take them home. Mr. Turner was dispatched to transport the complainants home from the party and picked them up at 12:07 a.m.

[9] While driving them home, Mr. Turner suggested that he could be their personal Uber driver. He then began explaining what a “sugar daddy and sugar baby relationship” would entail. He explained that sugar daddies pay sugar babies in exchange for their sexual services. He told them about a girl he knew that is a sugar baby who made good money, enough that she did not have debt after she was done school. Mr. Turner told them he wanted to be their “#1 sugar daddy” and that he wanted to see them a couple times a month for approximately 1 hour in exchange for money.

[10] Mr. Turner asked how old the girls were and was told they were 16 and 17 years old (while, in fact, they were 14 and 15 years of age). He commented that they were a “nice age”. S.A. confirmed with Mr. Turner that since she was “17”, that their sugar daddy/baby relationship would be legal. He asked them for their contact information, provided his own, and asked that they send him a picture of themselves so he knew who they were. S.A. and A.U. accepted his phone number, saving it on their phones. Mr. Turner cautioned the girls that if their parents found out about him they were to tell them he was their Uber driver who gave them rides.

[11] While in the Uber, T.M. video recorded portions of these conversations on her cellphone without Mr. Turner’s knowledge. These clips [Exhibits 1(a) – 1(c)] included the following exchanges:

(1) Exhibit 1(a): a female voice saying she doesn’t have any sugar daddies and that he would be number 1. A male voice responding that they need his number first, and asking if they want his number (providing it). A female voice saying that she will add the contact as her sugar daddy. The male responding that if your parents find this, just tell them the Uber driver will drive me around for cash. Then, he comments that if you message me and you’re serious send me a picture of you so I know who is who; (2) Exhibit 1(b): a female voice saying: “want to be my sugar daddy? I don’t have a sugar daddy yet. The male voice talks about how a girl won’t have any debt when she graduates. He says “sugar babies get a couple hundred dollars per hour, if it’s more than an hour I get more, have to see him 2-3 times per month”; and (3) Exhibit 1(c): multiple girls say they have no sugar daddies. A male voice asks “how old are you ladies?” A female responds that she is 17, and the male voice says “that’s a nice age”. The female voice asks if you became my sugar daddy that would be legal and the male voice states “it would be”. The female voice says “I’ll be your gold digger baby”. A female voice asks what’s the driver’s name again. He responds “Brad”.

[12] Mr. Turner dropped the girls off as requested.

[13] On June 26, 2022, at 8:42 p.m., Mr. Turner sent a text message to S.A. asking if she was still interested and suggested they should meet up again. S.A. asked what they would be doing at their meeting and Mr. Turner responded: “What all sugar daddies and sugar babies do. Lol. But what are you comfortable with?”

[14] S.A. continued to communicate with Mr. Turner on this date and she eventually asked him for money to send him her picture and, later, she repetitively asked him to send money so she could buy food from Uber eats. When he agreed, she asked for $100. He sent her $30 via e-transfer from his email address. Once she received the money, she sent him a photo of her face. She then asked if he would send more money if she sent him “foot pics” – meaning pictures of her feet. He responded that this did not “really do anything for me”. Mr. Turner then returned to their “arrangement” asking what S.A. thought would be acceptable. She said she did not know. He suggested 2-4 times per month and that he would work around her schedule, picking her up and dropping her off for hour “visits”. S.A. suggested she could buy cute clothes to impress him if he sent her some more money “cause ur gonna be the only one seeing these clothes if u know what I mean”. He told her that was premature, that they would need to “meet up a couple of times” first before he started buying her clothes. He then asked, when do you want to meet. She did not respond. S.A. began to realize how serious this was becoming and blocked Mr. Turner.

[15] Also on June 26, 2022, Mr. Turner was text messaging with A.U. She referred to herself as his “#2 baby”. She was also asked for a “face pic” so he could add it to his contact. He asked A.U. if she was still interested, and she said “sure”. He suggested that they could meet 2-4 times per month and that he could work around her schedule. A.U. also became concerned and, trying to avoid it, stated she was not sure if her boyfriend would approve of their relationship. Mr. Turner told her to keep their relationship discreet, that her boyfriend didn’t need to know, and counselled her to delete all of the messages between them so he would not find out. He asked her to think about it and let him know. She responded: “Alrighty”. When he later pressed her for a face pic, she told him it wasn’t going to work out “bc of my circumstances but I’ll lyk when I wanna try it!” He responded: “Sounds great. I definitely look forward to it. Even if it’s in a year or two. Hopefully it’s sooner though. And can I get it please get a face pic?” She did not respond.

[16] On Monday, June 27, 2022, the complainants told their teacher about the incident, who notified a parent, who contacted police. The London Police Service Human Trafficking Unit began an investigation.

[17] On July 1, 2022, S.A. received another text message, originally sent by him on June 30, 2022, at 6:29 p.m. Mr. Turner wrote: “Hey gorgeous. How’s the start of your long weekend going so far?” She did not respond.

[18] The police were able to gather evidence confirming the complainants’ account, including photos of Mr. Turner’s vehicle matching the girls’ description, records from Uber confirming his employment and the subject ride provided by him, banking records confirming his e-transfer to S.A. and copies of phone records confirming communications between Mr. Turner and the complainants.

[19] On July 5, 2022, police observed Mr. Turner driving his vehicle on James Street in London. They conducted a traffic stop and Mr. Turner was arrested. His cellphone was seized incident to arrest.

[20] Mr. Turner provided a cautioned statement to police. He confirmed working as an Uber driver for three years. He recalled picking up teenaged girls on June 24, 2022, claiming they spoke about sorority girls and sugar daddy/sugar baby arrangements. He acknowledged providing his phone number to the girls. He believed the girls were 18 years old. He acknowledged asking them to send him photos of themselves so he could attach the photos to their phone numbers. He acknowledged sending money to one of the teens through an e-transfer. When asked if he solicited them to be his sugar babies, he said he could not remember and wasn’t sure.

[21] Mr. Turner’s cellphone was examined, yielding the following relevant evidence:

(1) he entered S.A. and A.U.’s contacts onto his phone, using their first name and “18 Uber”; (2) confirmation of a series of text messages with S.A. between June 24th and 30th, 2022 – Exhibit 2 to the Agreed Statement of Facts; (3) confirmation of a series of text messages with A.U. between June 24th and 27th, 2022 – Exhibit 3 to the Agreed Statement of Facts; (4) that this was not his first foray into these arrangements. Mr. Turner was engaged in conversations with other “sugar babies” in the months leading up to these offences; (5) that Mr. Turner exchanged messages with a friend in May and June of 2022 about sugar babies he was seeing. He asked if his friend would like to be set up with one of the sugar babies he was chatting with, but hadn’t hooked up with because the sugar baby was asking for too much money; and (6) Mr. Turner had accessed the website “seeking arrangements”, an online service which connect men with “sugar babies”.

[22] The Crown has focused its attention upon Mr. Turner’s direct efforts to communicate for the purpose of obtaining sexual services from the three most engaged teenaged victims, acknowledging that five complainants were initially exposed to his initial offending communications during the original June 24th, 2022 Uber ride.

Victim Impact

[23] A victim impact statement was submitted on behalf of S.A. The effects of her encounter and communications with Mr. Turner have been profound. She characterizes her life being “turned upside down” as she struggled over a transition from being outgoing to fearful and lacking trust, particularly around older men. She has lost a sense of security and has experienced significant paranoia. Her fear has impacted her sleeping and heighten her sense of insecurity. While she appreciates that she did not deserve to be treated and objectified in this fashion, particularly since she was only 15 years old, this experience has certainly contributed to a sense of lost innocence and dread. She originally thought this was all a joke and the realization otherwise has been difficult to process and move on from.

[24] Ms. S.M. was contacted by the Pre-Sentence Report author. She is the guardian of victim S.M. While she maturely acknowledges “mistakes” are made by everyone, she fears whether this behaviour will be repeated. She is appreciative that S.M. had strong community support to coach her through these events, otherwise she would be fearful of the result for a teenaged victim.

Circumstances of the Offender

[25] Mr. Turner is 57 years of age and presents without any criminal history.

[26] He was born in London within a healthy family unit. He experienced bullying through his schooling years, which he attributes to an evolving understanding that he has autism spectrum disorder. He lived with his parents until he was thirty years of age and had limited involvement in intimate relationship throughout his life until his relationship with his spouse since 2004, married in 2010. He reports a healthy, supportive and strong relationship with his wife who confirms the same and remains supportive of this offender.

[27] Mr. Turner fathers a sixteen-year-old son as well as being a stepfather to his wife’s adopted son. This adopted child has numerous behavioural and mental health concerns for which Mr. Turner has reportedly been a calming parental influence.

[28] Mr. Turner completed a high school equivalency diploma and has attended community college. He has a varied employment history at grocery stores and IT services providing tech support but, at the time of these offences, was working for a ride share company for three years. While it was not reported, I presume these charges put an end to that employment and the resulting stress pending the completion of this matter has contributed to his present unemployment. He is hopeful that he can secure independent work making deliveries once these proceedings have been completed.

[29] As noted, a recent psychological assessment identified that he shares numerous features of Autism Spectrum Disorder, which Mr. Turner believes now explains a great deal about his historical issues. He has engaged a risk assessor, but, through no fault of his own, the assessment process was not completed.

Mr. Turner’s Allocution

[30] Despite some distorted views expressed to his Pre-Sentence Report author respecting the degree of his moral blameworthiness and his appreciation of his unlawful conduct, Mr. Turner presented an apparently genuine statement to the court expressing accountability and remorse for his “bad decisions” which caused individuals and parents such distress. He reflected upon being a father to a 15-year-old himself and how this experience has been a “true wake up call” and is determined to never be in this position again.

His Family’s Offerings and Supporting References

[31] Friends and his spouse have unequivocally described Mr. Turner as a “kind”, “caring”, and supportive member of the community. He was identified as a loving and supportive spouse and father, who supports his family emotionally, financially and further enables his spouse to advance professionally. His friends have witnessed his familial supports but also referenced his community outreach and willingness to unreservedly support their families’ needs.

Legal Framework

[32] Relating to this factual narrative, section 286.1(2) of the Code provides that everyone who communicates with anyone for the purpose of obtaining for consideration the sexual services of a person under the age of 18 years is guilty of an indictable offence and is liable to imprisonment for a term of not more than 10 years and to a minimum punishment of imprisonment for a term of six months for a first offender.

[33] Section 718 of the Code highlights that “the fundamental purpose of sentencing is to protect society…and to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions.” To achieve this purpose, the following relevant objectives and principles are noteworthy:

(1) s. 718 highlights denunciation, deterrence, the separation of offenders from society when necessary, rehabilitation, reparation for harm done and the promotion of a sense of responsibility and acknowledgment of the harm done; (2) s. 718.1 highlights that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender; (3) s. 718.2(a) emphasizes the importance of increasing or decreasing a sentenced based upon an assessment of the aggravating and mitigating circumstances, and deemed aggravating circumstances include: (a) s. 718.2(a)(ii.1) notes where the offender, in committing the offence, abused a person under the age of eighteen years; (b) s. 718.2(a)(iii.1) notes where there is evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, (4) s. 718.2(b) highlights the importance of parity in sentencing so that similar offenders for similar offences in similar circumstances receive similar sentences; and (5) s. 718.2(d) notes that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances bringing into focus the important principle of restraint, even where, as here, imprisonment is prescribed.

[34] The principle of proportionality is fundamental and has been characterized as the cardinal principal of sentencing requiring the court to consider the gravity of the offence and the moral blameworthiness of the offender. As the Supreme Court said in R. v. Lacasse, 2015 SCC 64, “the more serious the crime and its consequences, or the greater the offender’s degree of responsibility, the heavier the sentence will be.” [1] This fundamental principle is central to the maintenance of public confidence in the criminal justice system. It demands that the punishment “speaks out against the offence and punishes the offender no more than is necessary.” [2] In so doing, it seeks to balance the principle of restraint with the importance of holding offenders accountable for their actions. The moral blameworthiness of the offender is important. Offenders who intentionally cause harm should be subjected to a greater punishment than those who did not intend the harm that flowed from their conduct. [3] Sentencing must remain, however, a highly individualized task.

[35] Further, section 718(d) of the Criminal Code compels me to be mindful of importance of rehabilitation, particularly when dealing, as here, with a youthful first-time adult offender. Restraint is required, as noted in section 718.2(d) and (e), to ensure that an offender is not deprived of liberty if less restrictive sanctions may be reasonable and appropriate and, if custody is required, the least amount of custody necessary to satisfy other principles of sentencing should be imposed.

Bill C-36 – Protection of Communities and Exploited Persons Act

[36] In response to the Supreme Court’s Canada (Attorney General) v. Bedford, 2013 SCC 72 decision, Parliament enacted Bill C-36 as a significant paradigm shift away from treating prostitution as a nuisance and towards an acknowledgement that it is a form of sexual exploitation that disproportionately and negatively impacts on women and girls. In the Department of Justice Technical Paper, 2014, Parliament acknowledged the objectives of Bill C-36:

Prostitution reinforces gender inequalities in society at large by normalizing the treatment of primarily women’s bodies as commodities to be bought and sold. In this regard, prostitution harms everyone in society by sending the message that sexual acts can be bought by those with money and power. Prostitution allows men, who are primarily the purchasers of sexual services, paid access to female bodies, thereby demeaning and degrading the human dignity of all women and girls by entrenching a clearly gendered practice in Canadian society.

Prostitution also negatively impacts the communities in which it takes place through a number of factors, including: related criminality, such as human trafficking and drug-related crimes; exposure of children to the sale of sex as a commodity and the risk of being drawn into a life of exploitation; …and, unwelcome solicitation of children by purchasers.

Purchasing sexual services from a person under the age of 18 is an even more serious offence. Although already prohibited in existing criminal law, Bill C-36 moves this offence to Part VIII of the Criminal Code, along with most other prostitution offences, and increases the maximum penalty from 5 to 10 years imprisonment and the applicable mandatory minimum penalty for a subsequent offence from 6 months to one year. [5]

[37] In R. v. N.S., 2022 ONCA 160, our Court of Appeal found the new Bill C-36 prostitution regime constitutional noting that Parliament had fundamentally changed the lens through which it views prostitution – now, it is viewed as “inherently exploitative and something that must be denounced and discouraged.” [6]

Friesen and the Evolution of Sentencing for Child Sexual Offences

[38] The Supreme Court in R. v. Friesen, 2020 SCC 9 issued a clarion call to sentencing judges that sentences for sexual offences need to increase from existing ranges because of legislative amendments and an increased understanding of the gravity and harmfulness of sexual offences against children.

… [W]e 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 the 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. [7]

[39] In particular, Friesen highlighted the necessity for sentencing courts to accurately reflect the wrongfulness of child sexual abuse offender conduct alongside the extent of harm it caused to the victim and their family. Child sexual abuse is inherently violent which causes serious injury and long-term harm that may only manifest when the victim becomes an adult. This long-term impact may include difficulty in forming loving, caring relationships, a higher risk of substance abuse, mental illness and mental health problems, and poor self-esteem. [8] Further, children are uniquely vulnerable and an adult offender ought to be aware that their actions can profoundly cause harm. [9]

[40] The Manitoba Court of Appeal in R. v. Alcorn, 2021 MBCA 101 made it plain, if it was not already, that for sentencing purposes, s. 286.1(2) offences should be treated in the same way as other sexual offences against children, such as sexual assault, interference, and exploitation. [10] That case involved the solicitation of a vulnerable 16-year-old indigenous girl caught up in the “child sex industry”, culminating in video recorded sexual intercourse. The trial judge sentenced Mr. Alcorn to 15 months incarceration. The Court of Appeal allowed the Crown appeal and replaced the sentence with a five-year term. The Supreme Court refused leave to appeal. The Alcorn court acknowledged that the criminal law is a “system of values” that has the ultimate objective of “maintaining a just, peaceful and safe society”. The values include the harm principle, the autonomy principle, the culpability principle, and the equality principle. Mainella J.A. noted:

These core values were discussed this way in Friesen in relation to sexual offences against children. “The prime interests that the legislative scheme of sexual offences against children protect are the personal autonomy, bodily integrity, sexual integrity, dignity, and equality of children” (at para 51). Section 286.1(2) of the Code engages all of these core values. Indeed, in Friesen, section 286.1(2) was identified as an offence to which the sentencing principles enunciated in the decision applied (see para 44, n 2). [11]

[41] Post-Friesen, courts, including our Court of Appeal, have reiterated the necessity of longer sentences for child sexual offences. As the Court of Appeal noted in R. v. M.M., 2022 ONCA 441, at para 15: “[t]he Supreme Court’s instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here.” [12]

[42] Supporting this instruction specifically in the context of s. 286.1(2) offences, the Alcorn court noted the distinction between the two modes of liability. There, the accused actually obtained for consideration the sexual services of a person under the age of 18. Here, the second mode is engaged by “the preparatory crime of communicating for the purposes of obtaining the sexual services of a person under the age of 18 for consideration.” [13] The sentencing issues arising from an allegation of communicating are clearly different than from obtaining those services. This communicating mode of offending conduct, while it reflects an insidious intention, has an “inchoate quality” to liability. The Alcorn court did not wrestle with the proportionality assessment of the communicating offence, other than to state: “…care should be taken before relying on pre-Friesen sentencing precedents and reference should be made to Friesen at paras 93-94, where the Supreme Court provides instruction as to addressing proportionality in a case involving child sexual offences where there is no specific victim.” [14]

[43] In Friesen, while focused on sting operations where no child was involved in the communication like offence (which is not the case here), the Supreme Court emphasized from a proportionality perspective that the lack of a victim should not be overemphasized in arriving at a fit sentence. Often, the offender cannot take credit for this factor. Here, for example, Mr. Turner’s lack of sexual interference with these victims was not self-imposed, but a function of their report to authorities. In the context of a child luring offence, though utilizing an analysis of equal resonance here, the Supreme Court emphasized in Friesen that the “offender both must have intentionally communicated with a person who the offender believed to be underage and must have had the specific intent to facilitate the commission of a sexual or other specified offence against that person.” [15] Therefore, by appropriate analogy, communicating for the purpose of obtaining sexual services from a child is not a “victimless crime” and that must be reflected meaningfully in the proportionality exercise.

[44] It is noteworthy that in Friesen, the Supreme Court affirmed that the participation of a child victim in the sexualized conduct not only does not amount to a mitigating factor on sentence, but is irrelevant to determining a fit sentence. Participation of the victim may coincide with the absence of certain aggravating factors, but this absence is not a mitigating factor. [16] Further, the court emphasized that a victim’s participation should not distract from the inherent harm done to the victim – harm occasioned by a violation of their sexual integrity, human dignity and privacy “even in cases of ostensible consent”. In addition, courts should be mindful that victim participation can be the result of grooming which is an aggravating factor. Finally, a victim’s participation should not distract from the reality that adults have a responsibility to refrain from engaging in sexual violence towards children. [17] Of particular relevance are the comments made by Fairburn J. (as she then was) in R. v. J.D., 2015 ONSC 5857:

Nor is it a mitigating factor that a child appears to acquiesce or even seek out the sexual attention of an adult. 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. [18]

[45] Finally, I take note of the observations of a local jurist in London, Ontario, respecting the prevalence of this generalized form of offending conduct. In R. v. Martinez [19], Justice McHugh noted in a child pornography, procuring, and receiving material benefit from the sexual services of a person under 18 case that: “The commodification of sexual services, particularly of young people under the age of 18, is rampant in this area. As a judge sitting in this court on a regular basis I can take notice of the number of charges of this nature that come before this court, and London is situated on the 401 near the 403 and right at the junction of the 401/402 Highway, and has become a location where the trafficking in young people has become all too frequent.” I reference Justice McHugh comments because they reflect a relevant feature of my proportionality assessment, given that local conditions are germane to an assessment of the gravity of the offence.

Range of Sentences for Communicating for the Purpose of Obtaining Sexual Services

[46] I have been referred to a number of authorities to assist in my assessment of an appropriate range of sentence for communicating for the purpose of obtaining sexual services from a child. The Crown provided a number of Project Raphael cases involving police undercover sting operations targeting child prostitution activity which provides some direction respecting the relevant sentencing principles and baselines for sentencing post-Friesen.

[47] In R. v. Aguilar, 2021 ONCJ 87 [20], a 38-year-old responded to an online advertisement offering sexual services from an 18-year-old. It was, in fact, an undercover police operation. He texted and learned that the person was, instead, 14 years of age. He agreed to pay for sexual services from this purported child and arranged to meet “her” at a hotel where he was then arrested by police. He was found guilty after trial of three child luring offences, including communicating with a child for sexual services. He had no criminal record. He was sentenced to 14 months custody for the child luring offences, and 6 months in custody for the communication (or s. 286.1(2)) offence, plus 2 years of probation. Justice Ghosh noted that Friesen observed that the absence of a “real victim” in police undercover child luring investigations, while relevant, does not detract from an offender’s degree of responsibility. Here, of course, we have “real” victims as it pertains to the communication offence regardless of whether Mr. Turner’s further sexual intention was actualized.

[48] In R. v. Sinnappillai, 2022 ONSC 832 [21], another police undercover investigation, the offender responded to a similar advertisement. He agreed over text messages to pay for sexual services after learning that he was “communicating” with a 15-year-old girl. He too was arrested at the hotel he arranged for a meeting. He was found guilty of two child luring offences. Leaning on the significant mitigating circumstances of this offender, the court sentenced Mr. Sinnappillai to 16 months custody with one year of probation. Justice Boswell emphasized that despite this being a police sting operation, citing Friesen, it was not a victimless offence.

[49] In R. v. Ritchie, 2023 ONCA 53 [22], another police undercover investigation, police posed as a 14-year-old offering sexual services and snagged this offender. He was convicted of child luring and communicating with a person under 18 years for the purpose of obtaining sexual services. He was sentenced to 16 months custody, plus 2 years probation. In imposing this sentence, Justice Misener emphasized parity with other Project Raphael cases in imposing a lower sentence that she would otherwise for this conduct. The Court of Appeal did not interfere with this sentence, determining that it was not “demonstrably unfit”.

[50] Here, it is important to emphasize that while police sting operation cases, which presently dominate the common law landscape in this area, are not victimless crimes, in this case we have a much more aggravating scenario. We have actual children communicated with for a sexual purpose in a fashion involving real persistence. As evident by the submitted impact statement, these communications had a real and substantial impact upon on at least one of the children. But, frankly, I can take from the reasoning in Friesen an inherent harm to all these children that may not be fully ascertainable at present and can rightly be expected to be ongoing and pervasive.

[51] The defence has also presented a number of authorities for my consideration. First, in R. v. Battieste, 2022 ONCJ 573 [23], the court sentenced a 30-year-old for luring a represented 14-year-old child, who was really an undercover officer. Pornography was sent preceding a request to meet for a sexual encounter. This offender lacked insight into his offending. The lack of an actual victim and his failure to ultimately attend the meeting were characterized as an absence of an aggravating factor. Citing parity, this offender was sentenced to 8 months incarceration with 18 months probation to follow. It was noteworthy that while Justice Pringle acknowledged the import of Friesen, the luring authorities cited for her consideration that were post-Friesen were trending into the 14 month and 30 month sentencing range.

[52] In R. v. Lypaczewski, 2023 ONSC 3696 [24], a child luring and making child pornography case, a 35-year-old teacher was charged as a result of engaging in explicit sexual communications with what he believed was a 15-year-old female who was, instead, someone who posted the communications on social media. Prior, this offender elected to break off communications recognizing the wrongfulness of his behaviour. The fact that no child was actually involved in the subject communications was emphasized by the sentencing court. He was sentenced to 12 months imprisonment.

[53] And, finally, in R. v. Kavanagh, 2023 ONSC 283 [25], after trial, a 44-year-old first offender was convicted of child luring and making sexually explicit materials available to a child on the internet when he communicated with a fictitious father (a police officer in the United States) who was offering up his fictitious 15-year-old daughter for sexual services. In the face of substantial mitigating factors with a finding that were was, with proper interventions, a minimal prospect of reoffending, Justice Stribopoulos sentenced him to 18 months imprisonment with a recommendation for service in a treatment focused facility.

[54] This canvass of largely luring related sentencing authorities, which by analogy bear some relevance, has satisfied me that, post-Friesen, in circumstances most often not involving an actual child victim, the sentencing range is generally 12 – 18 months.

Analysis

[55] I must now assess what constitutes an appropriate range of sentence for this offender engaged in this conduct.

[56] The Crown contends that the appropriate range of sentence is a maximum term of reformatory incarceration followed by a two-year period of probation. Only this range of sentence can adequately satisfy the predominant sentencing principles of denunciation and deterrence. The defence counters with a restraint inspired submission, that these primary sentencing principals may nevertheless be satisfied by the imposition of a 9 month period of incarceration to be followed by a 2 year period of probation emphasizing community safeguards and rehabilitative proprieties.

[57] This leads to an active consideration of what proportionality demands. What individualized sentence can be fashioned for this offender that balances the gravity of this offending conduct and Mr. Turner’s specific moral blameworthiness?

[58] A helpful tool for assessing proportionality is the consideration of both aggravating and mitigating circumstances. By way of aggravating factors, I have considered the following:

(1) the quantum of actual child victims involved; (2) the age disparity between this offender and the victims which is a recognized aggravating feature; (3) the frequency and persistence of the communications between Mr. Turner and these complainants in short order and his willingness to advance money to further groom his teenaged prey; (4) his attempts to normalize child prostitution by linking its monetization to a remedy for youth debt; (5) his efforts at concealment of these communications by counseling their deletion and providing cover stories for his role as their designated Uber driver; (6) his demands to have a picture of these teenaged complainants to, ostensibly, know who he was talking to. This, I find, was disingenuous and instead presents an unsophisticated but nevertheless self-serving effort to protect himself from investigation and apprehension; (7) the local prevalence of human trafficking and prostitution concerns and their proliferation across the province and country; (8) the particular inherent harm in knowingly exposing children to prostitution; (9) the harm that Mr. Turner’s efforts pose, generally, to our community and the resulting insecurity this conduct fosters, and (10) the actual and profound harm caused to at least one of these victims on top of the harm I can take notice may befall the other victims in the years to come.

[59] With respect to mitigating factors, the following has been taken into account:

(1) Mr. Turner has pled guilty. In so doing, he has accepted responsibility through this formal acknowledgment of remorse. This is a relevant and positive factor respecting his prospects for rehabilitation.

However, beyond a formal acknowledgment of remorse, Mr. Turner demonstrates a troubling and distorted internalization of his conduct. To the Pre-Sentence Report author, Mr. Turner expresses a qualified degree of responsibility commenting: “If I knew she was underage, I would have never done that” and, further, “if she was truthful, this would have never happened.” I am advised that these comments reflect a misapprehension of the state of the law – believing the legal age for such communication for the sale of sexual services to be 18 years. He thought the girls were at least 16 years old (per the drive video clips), as they erroneously reported, not 18 years old as he reported to police.

However, I am told that he now understands the unlawfulness of his communications and associated prostitution related intentions, regardless of age. That he is now “devastated it happened and is very sorry with what I put them through” seems to bear little connection to the confused age disparity. And while he does not endorse or acknowledge any inappropriate sexual attraction for younger females, which is contestable on this evidentiary record, he expresses no remorse for engaging in communication for the purposes of prostitution in general – no remorse for his willingness to commodify the female body which is, regardless of age, illegal.

This is further evidenced by the police investigative efforts which reviewed a pattern of communications suggestive that these events were not a one-off. Instead, he was researching, communicating with other prospects, and discussing ‘Sugar Daddy’ relationships with others.

So, while I credit his formal acknowledgment of remorse through this plea, its impact is significantly muted by his distorted perception of the degree of his moral culpability;

(2) Further, the timing of this plea is relevant. While a plea was entered on November 15, 2023, his intention to resolve this was communicated to the court at judicial pre-trials as early as June 28, 2023, and, apparently, prior to that between counsel. As a result, given the seriousness of this matter, I consider this a relatively early guilty plea enhancing its mitigating impact; (3) Mr. Turner’s guilty plea has saved the victims and their families the additional trauma associated with a trial. Legal finality offers some mercy. The plea has also practically saved the administration of justice the burden of further accommodating what would have undoubtedly been a difficult and time-consuming proceeding, when our court’s resources have been stretched to their limit due to a pandemic induced backlog; (4) Mr. Turner, at the age of 57, is a first time offender; (5) Mr. Turner has a pro-social history with active community supports, including a supportive spouse which enhance his prospects at rehabilitation. That he has no substance abuse or addiction issues is one less barrier to rehabilitative efforts; (6) Mr. Turner’s character references depict someone who, according to a family friend Ann Klinck, is socially awkward but a good friend, “kind, good-hearted, helpful, and family-oriented.” He has been lauded for supporting his family without reservation, including a stepson who has struggled with mental health issues and his mother-in-law through difficulties in the later years of her life. A friend, Steven McEwen, described someone who not only supports his family but supports and cares for his friends and their family needs without reservation. His wife of 14 years outlined concerns over possible undiagnosed autism which contributes to his social awkwardness. She describes an excellent and supportive father, uncle and cherished partner who has supported her personally and professionally. These circumstances have taken a “devastating toll” on their family in terms of mental health and finances. A fear of Mr. Turner’s pending incarceration and the impact that will have on his family’s ability to care for their house and continue to handle the behavioural issues of their eldest son, alongside the resulting financial strain was noted. While his wife internalizes these circumstances as a “gross misunderstanding”, which fails to square with the factual narrative, her misperception will not be visited upon this offender; (7) Mr. Turner participated in an autism assessment in September of 2023 resulting in a conclusion from the assessing phycologist, Dr. Nolan, that he presents with many traits associated with Autism Spectrum Disorder. His difficulties in reading and interpreting social cues and in knowing how to interact with others in social situations was identified which presents as curious given his unequivocal communications and expressed motivations evidenced by this offence narrative and evidentiary record. Nevertheless, his diagnosis has helped Mr. Turner understand “why I’ve had issues my whole life” and this presentation provides important context and relevance respecting the degree of his moral blameworthiness; and (8) Mr. Turner appears to be exploring concerns over his community risk factors. He has commenced an assessment with a clinical social worker, Len Kushnier, and has completed a number of sessions for the clinical portion of his assessment. Through no fault of Mr. Turner, this process was not able to be completed but, on a preliminary basis, Mr. Kushnier expressed disbelief that he presents with “deviant interests in younger females”, but the high-risk “sugar daddy” mindset requires further intervention. Without a clinical report and/or recidivism risk assessment screening tool results, I cannot overemphasize these conclusions but note that efforts at engagement at least heighten his prospects for rehabilitation.

[60] To be clear, I am not indifferent to the nature of the communications between Mr. Turner and, particularly, S.A. They can, at least initially, be described as including some element of participation on S.A.’s part as she apparently endeavoured to secure more and more money from Mr. Turner until he reset the expectations and things progressed towards the reality of a meeting. However, S.A. was a 15-year-old child at the time. Her level of maturity grounds her vulnerability necessitating the very protection Parliament intended by codifying offences of this nature. I find that this communicative dynamic doesn’t absolve or diminish Mr. Turner’s moral blameworthiness. If anything, it represents the absence of an aggravating factor on sentencing.

[61] I am confident in concluding that Mr. Turner, given his community supports and growing awareness of his underlying condition presents with real and positive rehabilitative prospects.

[62] This, however, must be assessed against the gravity of this offending conduct. Our community minimally expects the administration of justice to protect children. Deterrent and denunciatory sentences from courts faced with child sex offenders sends that message to Mr. Turner and those of a like mind. In cases of child sexual abuse, more often than not, only a significant custodial sentence can accomplish this goal. This is such a case. Mr. Turner is such an offender. Despite his distorted view of his moral blameworthiness, his actions caused harm to five child victims, their social network, and our community at large.

A Fit Sentence for This Offence and This Offender

[63] The imposition of a fit sentence requires a proportionality analysis balancing the gravity of this offending conduct with the moral blameworthiness of this offender.

[64] I recognize that the imposition of a custodial sentence will have a substantial impact upon not only this offender but, in particular, his immediate family. Familial support to his wife and children and, to a lesser extent financial support, will for a period be disrupted. Despite the lack of a fulsome insight into the wrongfulness of the conduct he engaged in, at least on a preliminary basis, with professionals to address his risk factors and presenting circumstances, including his lack of a criminal history, his rehabilitative prospects are positive which will be buttressed by his established community supports. I am also mindful of his autistic presentation and the difficulty that will pose for him in an institutional setting. And, of great significance, his guilty plea has lessened the trauma that would otherwise have been associated with a trial of this matter resulting in the probable testimony of these effected teenaged victims.

[65] However, Parliament and the Supreme Court has made it clear that denunciation and deterrence are the paramount principles for sentencing consideration in child sexual abuse cases. Where, as here, we have ‘actual’ child victims who, on this evidentiary record, appeared to be the only reluctant parties getting in the way of more invasive sexualized hands-on abuse is significantly aggravating. The intentions of Mr. Turner were made clear, and he was motivated to experience this ‘Sugar Daddy’ lifestyle oblivious to the personal and social harms he was perpetuating.

[66] But for the mitigating circumstances present, the 2-year less one day range of sentence sought by the Crown is within an appropriate range of sentence for prostitution related child sexual abuse communications with actual children involved, even for a mature first offender. Sentences for all forms of child sexual abuse are and must increase to meet the acknowledged gravity of these offences against those most vulnerable within our community.

[67] In consideration of the mitigating circumstances that are present which highlight for me the principal of restraint, but mindful of the need for a denunciatory and deterrent message both to Mr. Turner and the community at large, I conclude that the appropriate sentence for Mr. Turner should, instead, be 18 months incarceration, followed by the recommended 2 years of probation with terms and conditions aimed at addressing public safety needs and his rehabilitative demands.

[68] Further, I will grant the Crown’s application for a DNA order pursuant to s. 487.051, as a “primary designated offence” per s. 487.04.

[69] Mr. Turner will also be required to comply with the reporting requirements of the Sex Offender Information Registration Act, pursuant to s. 490.012 for a period of 20 years as this is a primary designated offence under s. 490.11(1)(a)(xxiv). In making this order I have satisfied myself, pursuant to s. 490.012(3)(a), that a SOIRA order is necessary given the nexus between this offending conduct and the purpose of this registry – to help police services prevent or investigate crimes of a sexual nature through registration of sex offenders. As these offences are subject to a sentence which includes a maximum of 10 years imprisonment, I find that a 20-year duration is appropriate pursuant to s. 490.13(2)(b).

[70] A s. 161 order for 5 years will also be granted in a target fashion relevant to this offending conduct. Upon his release from custody, Mr. Turner will be prohibited from seeking or obtaining or continuing any employment, or volunteering, that involves a position of trust or authority towards persons under the age of 16 years, pursuant to s. 161(1)(b).

[71] A forfeiture order for the seized electronic device(s) associated to these communications has already been granted.

[72] Finally, while Mr. Turner is serving his custodial sentence, he will be prohibited from communicating with any of the identified complainants, pursuant to s. 473.21.

Conclusion

[73] In sum, Mr. Turner is sentenced to 18 months incarceration, followed by 2 years probation and the identified ancillary orders.

Released: September 12, 2024 Signed: Justice M. B. Carnegie

Citations

[1] R. v. Lacasse, 2015 SCC 64, [2015] 3 SCR 1089 at para 12 [2] R. v. Nasogaluak, 2010 SCC 6, [2010] 1 SCR 206 at para 42 [3] R. v. M.(C.A.), [1996] 1 SCR 500 at para 40 [4] Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] SCJ No 72 [5] Department of Justice Canada, Technical Paper: Bill C-36, An act to amend the Criminal Code in response to the Supreme Court of Canada decision in Attorney General of Canada v. Bedford and to make consequential amendments to other Acts (Protection of Communities and Exploited Persons Act), 2014, (online: https://.justice .gc.ca/eng/rp-pr/other-autre/protect/protect.pdf), at pages 4-5 [6] R. v. N.S., 2022 ONCA 160 at para 55 [7] R. v. Friesen, 2020 SCC 9, [2020] 1 SCR 424 at para 5 [8] Friesen, supra., at paras 79-84, 147 [9] Ibid., at paras 87-90 [10] R. v. Alcorn, 2021 MBCA 101 at para 45; leave to appeal refused, [2022] SCCA No 39 [11] Ibid., at paras 35-36 [12] R. v. M.M., 2022 ONCA 441; R. v. Ritchie, 2023 ONCA 53 at para 12 [13] Ibid., at para 54 [14] Alcorn, supra. at para 56 [15] Friesen, supra. at para 93 [16] Ibid., at para 150 [17] Ibid., paras 152 - 154 [18] R. v. J.D., 2015 ONSC 5857 at para 25; cited in Friesen, supra., at para 154 [19] R. v. Martinez, unreported decision of Justice McHugh, September 20, 2019, OCJ, pages 5-6 [20] R. v. Aguilar, 2021 ONCJ 87 [21] R. v. Sinnappillai, 2022 ONSC 832 [22] Ritchie, supra. at para 13 [23] R. v. Battieste, 2022 ONCJ 573 [24] R. v. Lypaczewski, 2023 ONSC 3696 [25] R. v. Kavanagh, 2023 ONSC 283