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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: April 16, 2025
Court File No.: Pembroke 22-37100396; 23-37101038
Between:
His Majesty the King
— and —
K.T.
Before Justice: J.R. Richardson
Heard on: June 17, August 1, August 15, 2024; January 9, 2025
Reasons for Judgment released on: April 16, 2025
Counsel:
Richard Morris — counsel for the Crown
Marnie Munsterman — counsel for the accused
Introduction
[1] This is a complex sentencing.
[2] The Court must wade through a myriad of minefields in the following issues:
a) The length of sentence that should be imposed for an untreated, indiscriminate sex offender;
b) How, if at all, the offender’s low average and borderline results in some aspects of his intellectual functioning should affect the assessment of whether he has “diminished moral blameworthiness”;
c) The collision between the sentencing principle of totality, that is the need to sentence the offender in a way that is not so long that it is unduly harsh and crushing for him, while respecting Parliament’s direction to impose minimum sentences for some offences and consecutive sentences in others;
d) The impact of the deplorable and untenable conditions in which the offender has been housed while he awaits sentencing and the degree to which he should receive additional credit for his pre-sentence custody time.
[3] As I have been editing and honing the 51 pages that follow, I have been thinking about the words of former Justice Doherty of the Ontario Court of Appeal in his recent address to the Criminal Lawyers Association, in which he said:
It seems to me, however, that the many and diverse demands that are now made on the criminal justice system, and the complexity that has overtaken the substantive and procedural law in response to new demands endangers the fair and efficient operation of the criminal justice system. I refer you to the remarks of the Court of Appeal in a case called [King in 2022][https://www.canlii.org/en/on/onca/doc/2022/2022onca665/2022onca665.html#par183].
I have previously described the criminal process as akin to a cargo ship, which has been running along the same route for years and years, making its way from port to port. However, now, at each stop, more and more cargo is loaded on the ship, and none is taken off. As the ship continues the journey, it slows and sinks lower and lower into the water until it finally disappears from view.
My fear is that the complexity and—well, primarily the complexity—I'll leave it at that we have developed in the criminal law, is really making it close to unworkable, at times.
[4] My base court is Pembroke. KT is the third offender that I am sending to the penitentiary for sexual offences within the last month. These cases are necessarily demanding, difficult and time consuming.
[5] I took KT’s plea on these charges in June 2024. I heard sentencing arguments in August, 2024 and January, 2025 and I reserved judgment until today. Along the way, I have repeatedly insisted on receiving assessments which will assist me in understanding who KT is and in fashioning a sentence for him that is proportional to his moral blameworthiness.
[6] These are assessments that are necessary, not only to me in the process of his sentencing, but also to the correctional service and parole board, who will be called upon to implement a correctional treatment plan for KT and decide on when he is a candidate for release back into the community.
[7] As much as the law with respect to sexual offences in general, and sexual offences against children specifically, focusses primarily on denunciation and deterrence, the imposition of sentence must always have an eye on the fact that, absent a finding that an individual should be subject to an indeterminate sentence, the offender will be released back into the community and the community is entitled to be kept safe from him when that time comes.
[8] In this case there are aspects of the assessments that are sloppy and incomplete. For example, there is no assessment of KT’s risk to reoffend.
[9] It is easy to blame the assessors. But one must also bear in mind that they are overworked. Where I preside, there is a shortage of forensic psychiatrists.
[10] I have also had to balance writing this judgment with the incessant demands of my other cases, only two of which I have discussed above. The complexity of our law makes the process of doing justice to KT arduous and time consuming. The judgment must demonstrate to the parties and to any appellate courts that may be called upon to review it, that I have considered everything, including the proverbial kitchen sink, in fashioning KT’s sentence.
[11] Two things bother me the most about this process:
[12] First, I suspect that KT will not understand these reasons for sentence. He will understand the final number, but I have grave doubts as to whether he will understand the process that I have followed in arriving at it.
[13] Fortunately, he has the benefit of a caring and able defence counsel who I know explain it to him and for whom I am extremely grateful.
[14] This, however, is a failing of our system and a symptom of how complex the law has become.
[15] Secondly, while assessments have been conducted, arguments heard and judgment considered, KT has been kept at the Ottawa Carleton Detention Centre, where conditions are deplorable and where he has been unable to receive meaningful treatment for his criminogenic challenges. This too is a failing of our system.
Facts
Information 22-37100396
[16] On June 17, 2024, KT entered pleas to the following offences:
a) Criminally harassing BA, contrary to section 264(2)(b) of the Criminal Code;
b) Criminally harassing HBC, contrary to section 264(2)(b) of the Criminal Code;
c) Criminally harassing RL, contrary to section 264(2)(b) of the Criminal Code;
d) Criminally harassing AC, contrary to section 264(2)(b) of the Criminal Code;
e) Indecently communicating with AD, contrary to section 372(2) of the Criminal Code.
[17] The Crown proceeded by Indictment.
1. Criminal Harassment Against BA
[18] Both BA and KT worked at a restaurant in the Town of Petawawa. BA started to receive unwanted photos of a male penis, believed to be from KT, and videos of him masturbating. She ignored them. He then sent threatening messages to her. BA was an adult at the time.
2. Criminal Harassment Against HBC
[19] Both HBC and KT worked at the same restaurant. HBC received unwanted messages asking her to “fuck me” and two videos of KT masturbating. She also received a phone call from him and recognized his voice. HBC was a youth at the time.
3. Criminal Harassment Against RL
[20] Both RL and KT worked at the same restaurant. RL received unwanted messages, telephoned KT to stop communication, but he attended her other place of employment uninvited and sent videos of himself masturbating, telling her to “fuck me” and messages saying “I want to fuck you.”
4. Criminal Harassment Against AC
[21] Both AC and KT worked at the same restaurant. KT started unwelcome communications. AC sent a nude photo of herself as a younger female showing her breasts. KT demanded more photos, threatened to disseminate images without consent, and offered money for photos.
5. Indecent Communications Against AD
[22] AD was the manager at the fast-food restaurant where KT worked. She received messages from an unknown number calling her a “goddess” and offering $1000 for sexual favours. She recognized KT’s voice on a call and informed his parents. KT continued sending unwanted messages.
[23] KT was arrested on September 20, 2022, and admitted to sending videos and messages as acts of revenge or to cause trouble.
Information 23-37101038
[24] On June 17, 2024, KT pleaded guilty to:
a) Making sexually explicit material available to C, a person under 16, contrary to section 171.1(1)(b) of the Criminal Code;
b) Exposure to OM, a person under 16, contrary to section 173(2) of the Criminal Code;
c) Possession of child pornography contrary to section 163.1(4) of the Criminal Code;
d) Communicating with OM, a person under 16 for the purpose of facilitating child pornography, contrary to section 172.1(1)(b) of the Criminal Code;
e) Communicating with an unknown person under 18 for the purpose of facilitating child pornography, contrary to section 172.1(1)(a) of the Criminal Code;
f) Voyeurism, contrary to section 162(1) of the Criminal Code;
g) Exposure to a person under 16 (K), contrary to section 173(2) of the Criminal Code;
h) Making sexually explicit material available to a person under 18 (KX), contrary to section 171.1(1)(a) of the Criminal Code.
[25] The Crown proceeded by Indictment.
[26-27] Police seized KT’s cell phone and other electronics upon arrest; further investigation revealed extensive evidence on these devices.
1. Making Sexually Explicit Material Available to C (under 16)
[28] KT communicated with C via Snapchat, asking for photos and sending videos of himself masturbating, including explicit threats.
2. Exposure and Luring of OM (under 16)
[29] KT used TikTok to contact OM, asked for nude photos, exposed himself, and paid her for participation. Police found images/videos of OM on KT’s devices.
3. Possession of Child Pornography
[30-31] Police found 2,257 images and 3,651 videos depicting child pornography on KT’s devices, involving children aged six months to 17 years, including acts of intercourse and bestiality.
4. Communicating with Unknown Female (under 16) for Facilitating Child Pornography
[32] KT asked an unknown female for photos and videos, sent videos of himself masturbating, and offered money.
5. Voyeurism (Unknown Male)
[33] Police found a video of KT and an unknown male engaging in consensual sexual activity recorded surreptitiously by KT.
6. Exposure to K (under 16)
[34] KT offered to pay K for photos, sent videos of himself masturbating, and assured no recordings of her.
7. Making Sexually Explicit Material Available to KX (under 18)
[35] KT asked KX to watch him masturbate, offered a gift card, and instructed her to remove a face filter during the video.
[36-37] Exhibits filed include summaries of allegations and categorization reports by police.
Age and Criminal Record
[38] KT was born in 1989 and is 35 years old.
[39] KT has no prior criminal record.
Reports on Criminal Responsibility and Mental Health
[40-42] A report assessing whether KT was not criminally responsible under section 16 of the Criminal Code was filed, authored by Dr. Julian Gojer, forensic psychiatrist.
[43-59] Background includes family history of mental illness, KT’s childhood health issues, ADHD diagnosis, substance use history, and mood disorders.
[60-70] KT reports chronic depression and mood fluctuations; Dr. Gojer found KT average intelligence with some insight into mental health problems.
[71] Dr. Gojer suggested possible ADHD, brain injury, substance use disorders in remission, and cyclothymic disorder.
[72] Dr. Gojer recommended further evaluation for pedophilia and possible phallometric testing under the Mental Health Act.
Section 21 Report
[73-78] The section 21 report found normal hormones, no cognitive distortions, high arousal to child stimuli, and diagnosed pedophilic disorder (non-exclusive). Treatment recommendations included mood stabilizers, antidepressants, stimulants, substance use and sex offender counselling. Treatment available at St. Lawrence Valley Correctional and Treatment Centre. The report lacked risk assessment.
Follow-Up Neuropsychological Assessment
[79-84] Neuropsychological testing showed low average intellectual functioning, borderline math skills, and mixed executive function results. KT benefits from stimulant medication and should receive psychotherapy. Treatment at St. Lawrence Valley recommended.
Crown Follow-Up
[85] Crown counsel confirmed all treatments are available in penitentiary and reformatory settings.
Victim Impact Statement of BA
[86-89] BA expressed fear for her safety and family, even after moving away.
KT’s Letter to the Court
[90-91] KT requested placement at St. Lawrence Valley for proper rehabilitation, citing brain injury and expressing remorse and desire to improve.
Submissions of the Crown
[92-98] Crown sought an eight-year global sentence, emphasizing denunciation and deterrence, mandatory consecutive sentences for child sexual offences, and no diminished moral blameworthiness. Aggravating factors included use of workplace to target victims, multiple victims, degrading images, and lack of insight.
Defence Submissions
[99-108] Defence sought 1.5:1 credit for time served, additional credit for harsh conditions, maximum reformatory sentence with placement at St. Lawrence Valley, and probation. Argued KT’s cyclothymic disorder and impulsivity reduce moral blameworthiness. Highlighted KT’s amenability to treatment and community support.
Analysis
Offences and Sentencing Provisions
[109-115] Summary of maximum and minimum sentences for offences under the Criminal Code, including criminal harassment, indecent communications, making sexually explicit material available to a child, exposure, possession of child pornography, luring, and voyeurism.
Sentencing Principles
[116-121] Overview of fundamental sentencing purposes and principles under sections 718, 718.01, 718.1, 718.2, 718.3, and 719 of the Criminal Code, including aggravating and mitigating factors, and rules on consecutive sentences.
Sentencing is Individualized
[122-123] Emphasis on proportionality and individualized sentencing.
Aggravating and Mitigating Factors
[124-136] KT’s guilty plea, lack of criminal record, ability to maintain employment (negated by workplace victimization), mental health issues, and lack of remorse considered. KT found to be an indiscriminate sex offender with high risk to reoffend without treatment.
Sentencing Principles for Criminal Harassment
[137-144] Citing R. v. Wall and R. v. Bates, criminal harassment is a serious offence requiring denunciation and deterrence, especially as a gendered crime.
Sentencing Principles for Indecent Communications
[145-150] Differences between criminal harassment and indecent communications explained; both require denunciation and deterrence.
Application to KT’s Criminal Harassment and Indecent Communications
[151-153] Sentences of 90 days consecutive for each criminal harassment count and 30 days consecutive for indecent communications recommended.
Sentencing Principles for Child Pornography
[154-163] Citing R. v. Friesen and R. v. Pike, child pornography is a grave offence with severe emotional harm to victims; sentencing considers size, nature, and organization of collection, and offender’s remorse.
Application to KT’s Child Pornography Offences
[164-171] KT’s large and disturbing collection warrants a four-year sentence before totality and custody credit.
Sentencing Principles for Child Luring and Exposure
[172-194] Citing R. v. Bertrand Marchand and others, luring causes serious psychological harm, grooming is aggravating, and exposure offences require denunciation and deterrence.
Application to KT’s Luring and Exposure Offences
[184-194] Sentences of 2.5 years for luring OM, 1 year for luring unknown female, and 6 months for exposure to OM recommended; 6 months for exposure to K.
Sentencing Principles for Making Sexually Explicit Material Available to a Person Under 16
[195-211] Explained as an inchoate offence focused on intention to facilitate sexual offences; grooming and facilitation aggravate sentence.
Application to KT’s Offences Under Section 171.1(1)(b)
[209-211] Minimum six months for KX and nine months for C recommended.
Sentencing Principles for Voyeurism
[212-228] Voyeurism protects privacy and sexual integrity; deterrence is important; aggravating factors include planning and victim non-consent.
Application to KT’s Voyeurism Offence
[217-228] KT recorded consensual sex with an adult male without consent to recording; 12 months consecutive sentence recommended.
Statutory Requirement for Consecutive Sentences
[229-230] Section 718.3(7) mandates consecutive sentences for child sexual offences; discussion of concurrent vs consecutive sentencing in luring cases.
Subtotal Sentences Before Totality and Custody Credit
[231-235]
- Information 22-37100396: total 13 months (criminal harassment and indecent communications)
- Information 23-37101038: total 8 years 8 months (child pornography, luring, voyeurism, exposure)
- Combined total: 9 years 10 months
Principle of Totality
[236-247] Total sentence must not be unduly harsh; two approaches to totality discussed; sequential approach preferred here; Crown’s proposed global sentence of eight years accepted as appropriate.
Adjusted Sentences Prior to Custody Credit
[248-249]
- Information 22-37100396: 6 months total (criminal harassment and indecent communications)
- Information 23-37101038: 7 years 6 months total (adjusted for totality)
Pre-Sentence Custody Conditions: Lockdown and Overcrowding
[250-266] KT has been in custody at Ottawa Carleton Detention Centre since September 14, 2023, for 569 days, with extensive lockdowns and overcrowding (three inmates in two-person cells). Conditions described as harsh, deplorable, and inhumane.
Other Relevant Information About OCDC
[267-275] OCDC is main remand centre for Renfrew County; notorious for poor conditions worsened by the pandemic; inmates often transferred far away, disrupting access to family, counsel, and treatment. KT’s health care managed well despite conditions.
Law on Unduly Harsh Conditions in Pre-Sentence Custody
[276-288] Supreme Court and Court of Appeal decisions (R. v. Summers, Duncan, Marshall, Brown, John Howard Society) establish principles for crediting harsh pre-sentence custody conditions; credit is discretionary and must not undermine fit sentences.
Application of Custody Credit to KT
[289-295] Due to frequent lockdown and overcrowding, KT’s pre-sentence custody credit calculated at approximately 2.5:1. Remaining sentence after credit is fit and substantial, balancing deterrence and denunciation.
Final Sentence Imposed on Information 22-37100396
[296]
a) Criminally harassing BA – 72 days served, 180 days credit.
b) Criminally harassing HBC – suspended sentence, 1 day probation concurrent.
c) Criminally harassing RL – suspended sentence, 1 day probation concurrent.
d) Criminally harassing AC – suspended sentence, 1 day probation concurrent.
e) Indecently communicating with AD – suspended sentence, 1 day probation concurrent.
[297] Prohibition on contact with victims and their families pursuant to section 743.21.
[298] DNA sample order pursuant to section 487.051.
[299] Firearms prohibition order for 10 years pursuant to section 109.
[300] Victim Fine Surcharge waived due to undue hardship.
Final Sentence Imposed on Information 23-37101038
[301-309]
- Count 2 (Communicating with person under 16 to facilitate offence): 72 days served, 6 months credit.
- Count 3 (Exposure to OM): 36 days served, 90 days credit.
- Count 6 (Possession of child pornography): 389 days served, 970 days credit; additional 125 days imposed.
- Count 9 (Luring OM): 18 months consecutive.
- Count 14 (Luring unknown person): 12 months consecutive.
- Count 24 (Voyeurism): 6 months consecutive.
- Count 26 (Exposure to K): 90 days consecutive.
- Count 27 (Communicating with person under 18 to facilitate offence): 6 months consecutive.
Total sentence remaining: 1,475 days.
[310] Prohibition on contact with victims and their families pursuant to section 743.21.
[311] DNA sample order pursuant to section 487.051.
[312] Firearms prohibition order for 10 years concurrent with previous order.
[313] Lifetime registration under Sex Offender Information Registration Act.
[314-317] Lifetime prohibitions on proximity, employment, contact with persons under 16, and internet use with conditions.
[318] Order for forfeiture of seized devices to be drafted.
[319] Victim Fine Surcharge waived due to undue hardship.
[320] Recommendations for classification, further assessments, continuity of health care, and transfer to appropriate treatment institution.
Released: April 16, 2025
Signed: Justice J.R. Richardson