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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: 2025-01-22
COURT FILE No.: Sudbury 23-40100608; 22-40102667-00; 23-40103358

BETWEEN:

HIS MAJESTY THE KING

— AND —

T.O.

Before Justice G. Jenner
Heard on December 13, 2024
Reasons for Judgment released on January 22, 2025

Alayna Jay ............................................................................................ counsel for the Crown
Jacqueline Boutros ........................................................... counsel for the defendant T.O.

JENNER J.:

REASONS FOR SENTENCE

I. Introduction

[1] The offender, TO, pleaded guilty on December 13, 2024, to four counts of voyeurism contrary to s. 162(1) of the Criminal Code, and one count of theft contrary to s. 334(b)(i) of the Criminal Code.

[2] TO surreptitiously, and for a sexual purpose, photographed children and adults in a manner which focused on areas including their buttocks and anal region, breasts, and genitalia. His victims included members of both sexes. In some of the photographs, the victims are nude. He took the images using his mobile phone. TO acknowledged stealing the underwear of two of his victims, which he later photographed himself ejaculating into. TO was responsible for over 1,000 images either of a voyeuristic nature or involving sex acts he was performing using children’s underwear as a prop. Some of the victims have been identified. Others have not.

[3] The parties agree TO should receive a custodial sentence for these offences. They disagree about the nature of the custody that ought to be imposed, as well as about certain ancillary orders. The Crown seeks a period of custody up to and including two-years-less-a-day, to be followed by three years’ probation. The Crown further seeks an Order to Comply with the Sex Offender Information Registration Act or (SOIRA order). TO asks me to impose a conditional sentence of imprisonment (CSO), which would allow him to serve his sentence in the community, under strict terms including house arrest. He does not dispute the need for probation but does contest the appropriateness of a SOIRA order.

[4] I am called on to determine the appropriate sentence.

II. Circumstances of the Offence

[5] The facts were presented in an Agreed Statement of Facts (ASF).

[6] In September 2022, TO was at Science North, a science and education centre in Sudbury. He used his mobile phone to photograph seven-year-old CV1, whom he did not know. The photographs focused on her buttocks. Her father noticed, confronted TO, and involved police.

[7] Police subsequently executed a search warrant at TO’s residence and seized several electronic devices. The investigation revealed specific further instances where TO victimized members of his now-ex-spouse’s family:

• In the summer of 2022, while TO’s sister-in-law, AV2, was visiting him, he surreptitiously recorded her while she was wearing a bathing suit. The photographs focused on her breasts and buttocks.
• In the summer of 2021, at his own home, TO surreptitiously photographed 11-year-old CV3 while the child’s genitals were exposed. His genital area was the focus of the image.
• In the summer of 2021, at his own home, TO surreptitiously photographed 10-year-old CV4. The images depict her in a bathing suit, and focus on her anal region.
• TO stole the underwear of CV4 and that of her mother, AV5. He photographed himself masturbating while holding the stolen underwear, and then ejaculating on the underwear.

[8] In addition to these specific instances involving known victims, TO’s mobile phone was found to have a total of 1,158 relevant images on it, taken between January 2018 and December 2022. Most of the images were photographs of children’s underwear, some of which appeared soiled. Some of the images incorporated TO’s penis and ejaculation. There were also many voyeuristic images, some of which were close-up or cropped pictures of genital areas, buttocks or breasts of the subjects. The images were taken surreptitiously without the subjects’ knowledge and were made for a sexual purpose. A small number of the images were attached to GPS data which indicated they were taken at (i) a public park near Peterborough, (ii) a splash pad in Sudbury, and (iii) inside a large store in Sudbury.

III. Circumstances of the Offender

[9] The court had the benefit of a pre-sentence report and a psychotherapy report.

[10] TO is 44 years old. Before the offences came to light, he was married to JO. They are now separated and have not spoken since TO’s arrest. They have two young children, who now reside with their mother and who have no contact with their father.

[11] TO was born in British Columbia. His parents separated soon after his birth. He remained with his mother in British Columbia while his father moved to Quebec. TO and his mother moved to Ontario when he was quite young. When he was old enough, he would spend summers in Quebec with his father. Though TO did not initially graduate high school, he has completed his GED and attended college. He has worked a variety of manual jobs. He is currently employed at an electrical parts distribution centre.

[12] Following his arrest, TO moved back in with his mother. His father passed away in 2020 and she is TO’s only family in Canada. She expresses she does not understand why he would do the things he has done, but she intends to support him in his rehabilitation.

[13] TO has taken certain steps to address his offending conduct since his arrest. He has been attending a virtual group for Sex Addicts Anonymous, which he reports has helped him identify his problematic relationship with sexuality and pornography. He indicates he has learned to completely refrain from using pornography or masturbating. He reports celibacy is the only method he is comfortable with to limit his sexual urges.

[14] More recently, in October 2024, TO sought the services of psychotherapist Dr. Liam Marshall. As of December 12, 2024, TO had attended and actively participated in six one-hour sessions. Dr. Marshall opines that TO would benefit from continued participation in Sex Addicts Anonymous and sexual offender-specific treatment. If TO is incarcerated, Dr. Marshall believes TO’s treatment needs could be met at either Ontario Correctional Institute or the St. Lawrence Valley Secure Treatment Unit. Mr. Marshall places TO in the overall low-moderate category of risk, and notes that participation in therapy with an expert on sexual offender issues is essential to reduce the risk of recidivism.

[15] Addressing the court, TO expressed deep regret and shame for his actions and emphasized his remorse for the great deal of suffering he caused. This was consistent with what he told the presentence report author. TO acknowledged that his sexual fantasies involved deviant interests in children. He also expressed accountability for his actions, and recognized that he has caused his victims, their families, and his own family much distress and conflict. TO expressed a desire to engage in rehabilitative programmes. The author of the presentence report identifies TO as a suitable candidate for community supervision.

[16] At the time of his arrest, TO did not have a criminal record. He was, however, convicted of failing to comply with a release order on May 6, 2024, and received a $1,000 fine. That release order pertained to the present offences.

[17] While these charges have been pending, TO has spent 36 days in presentence custody before securing his release.

IV. Victim Impact

[18] I had the benefit of hearing victim impact statements from JO, TO’s ex-spouse, as well as his sister-in-law (AV2), and MV1, the mother of CV1. The victim impact statements reinforce the obvious immediate consequences of TO’s actions, but also the long-term effects they will have on his victims and family members. These impacts have physical, emotional, financial, and interpersonal manifestations. In addition to the most obvious direct impacts, innocent family members have become isolated from friends and extended family. Victims have seen their capacity to trust others, and their comfort in public spaces shaken. They have seen their physical health decline and have sought counseling to address the impact on their mental health.

[19] The victim impact statement of JO also highlights the devastating impact TO’s actions have had on their family, and in particular their young sons, who have had to grapple with their father’s abrupt exit from their lives.

[20] I am grateful to the victims for their participation in this process and commend them for the strength and resilience they demonstrated. I recognize as well that other victims of TO have not been identified, and likely remain ignorant of TO’s crimes. I cannot lose sight of the impact these offences nonetheless have on their dignity and bodily and sexual integrity.

V. Applicable Law

5.1 The purpose and principles of sentencing

[21] Pursuant to s. 718 of the Criminal Code, the fundamental purpose of sentencing is to protect society and contribute to the respect for the law and the maintenance of a just, peaceful, and safe community by imposing just sanctions that have one or more of the following objectives:

(a) To denounce unlawful conduct and the harm done to victims or the community;
(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 reparation for harm done to victims or to the community; and
(f) To promote a sense of responsibility in offenders, and acknowledge the harm done to victims or the community.

[22] Several other general principles apply:

• Proportionality: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender: s. 718.1.
• Aggravating and Mitigating Factors: A sentence should be increased or decreased to account for relevant aggravating or mitigating circumstances, including but not limited to those statutory factors set out in s. 718.2(a).
• Parity: A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances: s. 718.2(b).
• Restraint: An offender should not be deprived of liberty if less restrictive sanctions may be appropriate: s. 718.2(d). All available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders: s. 718.2(e).

5.2 Specific statutory considerations for these offences

[23] When the Crown proceeds by indictment, as it has here, the maximum sentence for voyeurism is five years’ imprisonment. Theft under $5,000 is punishable by up to two years’ imprisonment. Neither offence carries a minimum penalty.

[24] These offences involved the abuse of persons under the age of 18 years, who are also vulnerable due to their personal circumstances, and so I am required by ss. 718.01 and 718.04 of the Criminal Code to give primary consideration to denunciation and deterrence.

[25] The young age of many of the victims is also a statutorily aggravating factor: s. 718.2(a)(ii.1). As is the fact that the offender abused a position of trust in relation to some of the victims: s. 718.2(a)(iii). Specifically, TO abused the trust placed in him when he hosted children from his ex-spouse’s family at his backyard pool. I must also consider whether the offence had a significant impact on the victims, considering their age and other personal circumstances, including their health and financial situation: s. 718.2(a)(iii.1).

[26] Section 718.3(7)(b) stipulates that when a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct that any custodial sentence it imposes for such an offence (excluding child pornography), be served consecutively to any sentence it imposes for such an offence against another child (excluding child pornography).

5.3 The availability of conditional sentences

[27] Section 742.1 of the Criminal Code permits me to order an offender to serve a sentence of less than two years’ imprisonment in the community under the conditions of a CSO in certain circumstances. Neither voyeurism nor theft are specifically excluded offences under ss. 742.1 (b)-(d), so the operative question is whether I can be satisfied that permitting TO to serve a sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing.

VI. Analysis

6.1 Voyeurism offences and sexual offences against children

[28] It is difficult to fix on a range of sentence for voyeurism offences. As the cases provided by both the defence and Crown illustrate, offenders have received sentences ranging from suspended sentences to CSOs to upper-reformatory traditional custodial sentences: see, for example, R. v. Cairns, 2021 ONSC 4748 (C.J.), R. v. Wong, 2022 ONCJ 546, R. v. Jarvis, 2019 ONSC 4938; R. v. B.H., 2017 ONSC 3021; R. v. Boucetta, 2024 ONSC 1046. Each case features a unique array of circumstances. Sentencing is a highly individualized exercise and variation is to be expected.

[29] Despite the variation, it appears that sentencing for voyeurism has been in a state of flux as courts consider (i) the ubiquity of handheld image- and video-recording technology, (ii) renewed focus on ensuring that sentencing accounts for the gravity of sexual exploitation of children, and (iii) the full impact of the offence on victims’ sexual integrity.

[30] In R. v. Jarvis, 2019 ONSC 4938, Justice Goodman observed, at para. 81, that “[t]echnology is everywhere,” that “cameras, cell phones and other recording devices can be placed surreptitiously in any location, or on any person,” and that “this increases the need for sending a message to the general public that taking pictures of individuals in compromising positions… is inappropriate.”

[31] In R. v. Friesen, 2020 SCC 9, at para. 51, the Supreme Court stressed that sexual violence against children, which includes the production of sexual images of children, “invades children’s personal autonomy, violates their bodily and sexual integrity, and gravely wounds their dignity.” Courts must focus their attention on the pervasive and often permanent emotional and psychological harm visited on inherently vulnerable child victims, as well as on their families and communities: para. 58, 63. Sentences must reflect these harms and the “life-altering consequences” that flow from sexual violence: para. 74.

[32] In R. v. Downes, 2023 SCC 6, at paras. 46-47, the Supreme Court of Canada stressed the centrality of sexual integrity to voyeurism offences specifically:

As noted in this Court’s decisions in Friesen and Jarvis, society’s conception of sexual offences has evolved from a focus on the wrongful interference with sexual propriety to a concern with protecting sexual integrity (Friesen, at para. 55, and Jarvis, at para. 127, per Rowe J., both citing E. Craig, Troubling Sex: Towards a Legal Theory of Sexual Integrity (2012), at p. 68). In the passage cited approvingly in Friesen and the concurring reasons in Jarvis, Professor Elaine Craig explained that “[t]his shift from focusing on sexual propriety to sexual integrity enables greater emphasis on violations of trust, humiliation, objectification, exploitation, shame, and loss of self-esteem rather than simply, or only, on deprivations of honour, chastity, or bodily integrity (as was more the case when the law’s concern had a greater focus on sexual propriety)” (p. 68). Under a sexual integrity analysis, the focus is “not simply [on] the sexual motives, arousal, or body parts of the accused, or the community’s standard of sexual propriety, but also [on] the perception, experience, and impact on the complainant” (p. 75). In addition, a sexual integrity analysis focuses not just on physical harm to the complainant, but also on emotional and psychological harm, which is often more lasting than physical harm, especially for children (Friesen, at paras. 56-59).

Surreptitious observation or recording of a person where there is a reasonable expectation of privacy, and which occurs in a “safe place” under s. 162(1)(a), violates or poses a risk of violating sexual integrity, even if nudity is not reasonably expected at the specific time of the observation or recording. An observation or recording in such a quintessentially private and “safe place” violates trust and can result in the person’s humiliation, objectification, exploitation, shame, or loss of self‑esteem (Craig, at p. 68). It can also cause emotional and psychological harm, even if the person is not observed or recorded when nude. As the intervener, the Samuelson‑Glushko Canadian Internet Policy and Public Interest Clinic, observes: “Such violations of trust objectify those targeted by reducing them to body parts, creating images that in a digital environment can be easily replicated, cropped and manipulated in ways and for uses that disregard their right to control their own bodies. These violating images hinder subjects from developing their sexuality as they see fit, while also potentially exposing them to the shame and humiliation that often results from instantaneous and widespread dissemination” (I.F., at para. 24).

6.2 Aggravating and mitigating factors

[33] I have already discussed the application of several statutory aggravating factors in this case, including the young age of some of the victims, the abuse of trust in some of the offending conduct, and the significant impact on victims and their families.

[34] I identify the following further aggravating factors:

• TO’s retention of the images: this was not point-in-time observation but the maintenance of a collection of images, a portion of which meet the definition of child pornography, over a lengthy period.
• The number of photographs and victims: though the ASF does not stipulate the total number of victims, I can infer from the 1,158 voyeuristic or related images captured over a five-year period that there were a significant number of different victims, both child and adult.
• The duration of the offending conduct over that five-year period: TO’s offences were not impulsive lapses in judgment but a prolonged campaign of violation.
• The exacerbation of the violation of many of his victims’ sexual integrity by TO’s photographing himself ejaculating into children’s underwear, and in particular pairs he stole from CV4 and AV5.
• The nature of the images: while not all the images depicted nudity, some did. Again, it bears emphasizing that part of the collection is child pornography.
• While some of the images were taken while victims were clothed and in public places where the expectation of privacy is on the lower end of the spectrum, other images were taken in circumstances with a higher degree of privacy, such as while wearing and changing out of bathing suits at a trusted family member’s backyard.

[35] There are mitigating features to be considered as well:

• At the time of the offences, TO had no criminal record. He has a criminal record for breaching a release order, but that offence post-dates those before me, and he is to be sentenced as a first-time offender on these offences.
• TO entered pleas of guilt to these offences. In doing so, he preserved prosecutorial and court resources, and avoided the need for his victims and family members to testify about highly traumatic experiences. In giving up his right to a trial, he relieved the Crown from its need to prove the case beyond a reasonable doubt.
• TO is remorseful, demonstrates some insight into the issues that brought him before the court, and has of his own accord taken the first steps towards addressing those issues. His path of rehabilitation is far from complete, but it is mitigating that he has retained a psychotherapist and actively commenced treatment.

6.3 The impact on TO’s family

[36] A factor which does not fit neatly into the aggravating or mitigating categories, but nonetheless bears recognizing, is the devastating impact that TO’s conduct has had on his family. His ex-spouse finds herself struggling to financially support herself and their two young children, who themselves struggle with the loss of any relationship with their father, without—given their age—the maturity and ability to fully process the reason why. These are not challenges that this sentencing process can hope to resolve, but they are realities which demonstrate another avenue of harm perpetrated by TO’s actions, and collateral consequences that TO himself will need to live with.

6.4 Determining the appropriate sentence

[37] When I consider the unique array of aggravating and mitigating circumstances and the appellate guidance with respect to voyeurism and sexual offences against children, I conclude that a sentence to be served in the community as a CSO would not be consistent with the fundamental purpose and principles of sentencing.

[38] The more significantly denunciatory effect of a carceral jail sentence is needed to convey the serious gravity of the offence, and to deter other potential offenders. As in Downes, the broad harms caused by TO’s gross violations are illustrated by the victim statements in this matter. There is a high degree of moral culpability associated with this conduct. I am particularly concerned that a CSO would fail to balance the significant aggravating factors present in this case, including the breach of trust, the inclusion of child sexual exploitation, the high number of images and victims, and the long duration of the offences.

[39] A custodial sentence cumulatively in the upper-reformatory range is appropriate. While denunciation and deterrence must be given primary consideration, I must have regard to the mitigating features of the case, and to the principle of restraint.

[40] The custodial sentences shall be as follows:

• The lead count will be the voyeurism count which groups together the unidentified child and adult victims. On that count, TO will receive credit for his presentence custody of 36 days, and credited on a 1.5:1 basis as 54 days. On this count he will be sentenced to an additional eight months’ custody.
• On the voyeurism count relating to 11-year-old CV3, the sentence will be four months’ custody consecutive.
• On the voyeurism count relating to 10-year-old CV4, the sentence will be a further four months’ custody, consecutive to both other sentences.
• On the voyeurism count relating to AV2, the sentence will be three months’ custody concurrent.
• On the theft count, the sentence shall also be three months’ concurrent. While it is unusual for a first-time offender to receive a custodial sentence for a theft, TO’s sexual incorporation of the stolen garments is a significant aggravating factor.

[41] These sentences are crafted to account for s. 718.3(7)(b) of the Criminal Code and the principle of totality.

[42] Taking into account the presentence custody, this amounts to an effective cumulative sentence of almost 18 months. Going forward from today, it means a further 16 months’ custody. I recommend that TO serve this period of custody at either Ontario Correctional Institute or the St. Lawrence Valley Secure Treatment Unit.

VII. Ancillary Orders

7.1 Should a SOIRA order be imposed?

[43] Voyeurism is a secondary offence under s. 490.011 of the Criminal Code. I can only make a SOIRA order if Crown has established, beyond a reasonable doubt, that TO committed the offence of voyeurism with the intent to commit a primary offence: Criminal Code s. 490.012(5). The primary offences that the Crown submits are engaged here are making, possession, and accessing child pornography, as set out in s. 163.1 of the Criminal Code.

[44] One of the voyeurism counts identifies the offence in relation to AV2, who is not a child. On the balance of the voyeurism counts, the Crown has met their onus. Many of the images TO captured and retained depict persons under the age of 18 and have as their dominant characteristic the depiction of the subject’s sexual organ or anal region. That the depictions are for a sexual purpose is abundantly clear on the agreed facts.

[45] This is not a case where, considering the factors and exceptions set out in s. 490.012(3) and (4) of the Criminal Code, TO can demonstrate there would be no connection between making a SOIRA order and the purpose of helping police prevent or investigate sexual crimes. Nor is it a case where TO can establish that the impact of a SOIRA order on his privacy or liberty interests would be grossly disproportionate to the public interest in protecting society. In light of the aggravating factors which I have previously identified in considering the appropriate sentence, the assistive investigatory function of a SOIRA order in this case is obvious. Given the high number of victims and the variety of public and private spaces in which TO offended, the impact of an order on TO’s privacy and liberty would be entirely proportionate. A SOIRA order will issue, effective today, for the duration of ten years.

7.2 Further orders

[46] During his period of incarceration, TO will be prohibited pursuant to s. 743.21 of the Criminal Code from communicating, directly or indirectly with his named victims, his ex-spouse, JO, as well as any person under the age of 16, except,

• with respect to his own children, pursuant to a valid family court order made after today’s date, and this decision having been made available to that court for consideration, and
• with respect to his spouse, through legal counsel.

[47] When released from custody TO will be placed on probation for a period of three years. In addition to the statutory terms, the following conditions will apply:

• He is to report to his probation officer within 48 hours and thereafter as directed.
• He is to attend, participate and complete any counseling that is directed by his probation officer, including but not limited to sexual boundaries, and is to sign any consents or releases to allow his probation officer to monitor any such counseling.
• He is not to have any contact or communication, directly or indirectly with his named victims, his ex-spouse or any person under the age of 16 except,
  • with respect to his own children, pursuant to a valid family court order made after today’s date, and this decision having been made available to that court for consideration; and
  • with respect to his ex-spouse, JO, through legal counsel, or with her written revocable consent filed with the probation officer.
• He is not to be within 100 metres of his named victims, their residence, place of employment, or place of education.
• He is not to attend any public park, swimming area, daycare centre, schoolground, playground, community centre, or education centre, including Science North, where persons under the age of 16 are present or can reasonably be expected to be present.
• He is not to seek, obtain, or continue any employment or volunteering that involves being in a position of trust or authority towards persons under the age of 16.

[48] In crafting exceptions for potential communication between TO and his children, I am not endorsing such communication. I am, rather, recognizing the complexity of the circumstances and the need for a court of competent jurisdiction to be positioned to respond appropriately over the lifespan of these orders.

[49] The electronic devices on which the photographs were captured or stored shall be forfeit to the Crown as offence-related property.

[50] TO is ordered to provide a sample of his DNA to the GSPS on the voyeurism counts, which are secondary designated offences pursuant to s. 487.04 of the Criminal Code.

[51] As TO will be unable to earn income while incarcerated, and is likely to have continuing family support obligations, I will waive the victim fine surcharge in relation to these offences.

Released: January 22, 2025
Signed: Justice G. Jenner