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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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) as soon as feasible, inform any witness under the age of 18 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.

(c) if an order is made, as soon as feasible, inform the witnesses and the victim who are the subject of that order of its existence and of their right to apply to revoke or vary it.

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.

REASONS FOR SENTENCE

Justice C.A. Brannagan:

I. OVERVIEW / PROCEDURAL HISTORY

[1] Aswin Sajeevan was a co-resident with 11 other people at a home in Barrie. His bedroom was in the basement, next to a laundry room, which in turn was next to a bathroom. That bathroom was primarily used by the women who lived in the residence. Soon after the group moved in, in August of 2024, they discovered a "peep hole" between the laundry room and the bathroom. It was patched over. Someone uncovered the patch job. The hole was covered and uncovered on more than one occasion. It is not known who continually uncovered the "peep hole".

[2] What is known is that Mr. Sajeevan repeatedly used that "peep hole" to surreptitiously observe – and video record – four of his female roommates while they used the bathroom in various states of undress. This offending continued for a period of six months.

[3] On July 17, 2025, Mr. Sajeevan pleaded guilty before me to four counts of voyeurism, contrary to s. 162(1) of the Criminal Code.

[4] These are my reasons for sentence.

II. PROCEDURAL HISTORY

[5] This case came before me in a regular plea court in Barrie on July 17, 2025. Mr. Sajeevan was, and remains, represented by experienced Counsel.

[6] Before his arraignment, I learned that Mr. Sajeevan was an Indian citizen in Canada on a student visa. I conducted a thorough plea inquiry with him into the potential for immigration consequences; the defendant, in his own words and through his Counsel, confirmed that he wished to proceed despite not having received legal advice from an immigration professional: s. 606(1.1); R. v. Wong, 2018 SCC 25.

[7] Mr. Sajeevan was arraigned and the hearing proceeded by way of an agreed statement of facts. The lawyers did not present the court with a joint submission on sentence, though they agreed that the sentence should include a period of custody, served in the community, followed by probation. The Crown sought a conditional sentence order in the range of 12 months. Counsel sought a conditional sentence order in the range of four months.

[8] After I heard submissions from the parties, I cautioned them that I was considering a truly custodial disposition. I invited further submissions from the parties and invited Mr. Sajeevan to withdraw his plea, though I was not required to do so: R. v. Nahanee, 2022 SCC 37, at paras. 45-47. These offers were declined. I then ordered a pre-sentence report, before allocution.

[9] Two months passed before this case was next before me on September 19, 2025. The pre-sentence report was finalized and distributed to the parties two days earlier. On the 19th, Counsel for Mr. Sajeevan conceded admissibility of the report. He also advised the court that he was adjusting his original position and was now joining the Crown in its submission for a 12-month conditional sentence order.

[10] Given the change in Counsel's position, and a busy court docket, I adjourned the matter to October 2, 2025, for sentencing.

[11] In the interim, on September 22nd, pursuant to the principles articulated in R. v. Anthony-Cook, 2016 SCC 43, I invited written submissions from both litigants about how, in their view, the test in s. 742.1(a) was met. I also invited submissions on the pre-sentence report.

[12] I received written submissions from the Crown, along with two cases in support of its position. I did not receive any written submissions on behalf of Mr. Sajeevan.

III. FACTS / CIRCUMSTANCES OF THE OFFENCE

[13] The offence of Voyeurism is found at s. 162 of the Criminal Code. It reads:

162. (1) Every one commits an offence who, surreptitiously, observes – including by mechanical or electronic means – or makes a visual recording of a person who is in circumstances that give rise to a reasonable expectation of privacy, if

(a) the person is in a place in which a person can reasonably be expected to be nude, to expose his or her genital organs or anal region or her breasts, or to be engaged in explicit sexual activity;

(b) the person is nude, is exposing his or her genital organs or anal region or her breasts, or is engaged in explicit sexual activity, and the observation or recording is done for the purpose of observing or recording a person in such a state or engaged in such an activity; or

(c) the observation or recording is done for a sexual purpose.

(5) Every one who commits an offence under subsection (1) or (4)

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or

(b) is guilty of an offence punishable on summary conviction.

[14] The Crown elected to proceed by way of summary conviction. The maximum term of imprisonment available for each summary conviction offence is two years less one day: Criminal Code, s. 787(1).

[15] The agreed statement of facts that were read into the record are as follows:

i. Mr. Sajeevan resided at an address in Barrie with 11 other roommates. All the tenants moved in around August of 2024.

ii. Mr. Sajeevan had a bedroom in the basement. His bedroom was adjacent to a laundry room which was, in turn, adjacent to a bathroom.

iii. The residence had three bathrooms. The basement bathroom near Mr. Sajeevan's quarters was the bathroom that was principally used by the female tenants.

iv. On March 13, 2025, at around midnight, one of the male tenants, D.D., along with the four female victims in this case – S.S., A.S., D.B., and N.P, attended at the Barrie Police Station to report a case of voyeurism.

v. The five complainants advised police that around 3:30 PM on March 11, 2025, D.D. found the accused, Aswin Sajeevan, crouched down in the laundry room, with the light off, peering through a "peep hole" in the wall into the bathroom. At that time, S.S. was naked using the facilities.

vi. D.D. confronted Mr. Sajeevan about what he was doing. Mr. Sajeevan adamantly denied any wrongdoing. He told D.D. that he was searching for his earbuds. When D.D. queried why Mr. Sajeevan would be searching for his earbuds in the dark, with the lights off, Mr. Sajeevan was unable to provide an explanation.

vii. D.D. advised S.S. about his interaction with Mr. Sajeevan, and then told the other roommates, who ultimately decided to confront the defendant about his behaviour.

viii. The following day, on March 12, 2025, all the tenants confronted Mr. Sajeevan about his conduct. Though he had initially denied any wrongdoing, he eventually admitted to his housemates that he had been watching them use the facilities in various states of undress at different times through the hole in the laundry room.

ix. Mr. Sajeevan showed his roommates video recordings that he had made, using his cell phone and his laptop, of his female roommates in various states of undress while they used the bathroom. I was not told how many videos there were.

x. Each of the victims in this case – S.S., A.S., D.B., and N.P – observed the recordings and was able to identify themselves as the compromised subjects of the recordings.

xi. The group deleted the recordings from Mr. Sajeevan's devices in fear that they would be disseminated by him. They seized possession of his electronic devices and presented them to the police, who in turn took those devices into their custody.

xii. The police took audio statements from the five complainants. Police learned that the hole in the wall between the laundry room and the bathroom used by the female tenants was discovered soon after the tenants moved into the residence in August.

xiii. The hole had been patched up on more than one occasion, only to have been uncovered each time. This raised suspicions in the house. Those suspicions turned to Mr. Sajeevan, who had been seen on numerous occasions entering the laundry room shortly after any of the females had entered the bathroom.

xiv. Police attended at the residence and confirmed the existence of the laundry room "peep hole". It offered a clear view from the laundry room into the bathroom.

xv. Mr. Sajeevan's offending persisted over the course of six months, from September 2024 to mid-March 2025, until he was caught in the act.

IV. CIRCUMSTANCES OF THE OFFENDER

i. Counsel's Submissions

[16] I was advised by Counsel for Mr. Sajeevan that his client is a 20-year-old man from Kerala, India. He is in Canada on a student visa.

[17] I was told that Mr. Sajeevan fluently speaks four languages. His lawyer referred to him as "a very gifted linguist".

[18] Mr. Sajeevan has a grade 12 education. He works in Canada as a cook in a restaurant.

[19] I wished to learn more about Mr. Sajeevan and therefore ordered a pre-sentence report.

ii. The Pre-Sentence Report ("PSR")

[20] The purpose of a PSR is to provide the sentencing court with information about "the offender's age, maturity, character, behaviour, attitude and willingness to make amends." Its function is to assist the court in imposing a sentence by portraying the offender's background, character and circumstances: Criminal Code, s. 721(1) & (3); R. v. Green, 2006 ONCJ 364, at paras. 12-13; R. v. Angelillo, 2006 SCC 55, at para. 18.

[21] Mr. Sajeevan's PSR is unremarkable. It confirms that he is 20 years of age, in Canada on a student visa that expires in December of 2025, and that he is currently employed in Barrie as a line cook. It indicates that he attended college in Canada for computer programming but was suspended due to a low GPA.

[22] The PSR reports that Mr. Sajeevan has no diagnosed mental health issues. He does not suffer from any addiction issues. He has limited local supports but maintains regular contact with his family in India, with whom he has positive historical and ongoing relations. He keeps contact with friends in India, using social media and virtual applications.

[23] Mr. Sajeevan self-reported that he currently resides in a residence in Barrie with several other men, who he says are from Nigeria. He reported having a good relationship with his roommates but declined to provide contact information for them. He told the PSR author that there were no women renting in the home. None of this was independently verified.

[24] Mr. Sajeevan told the PSR author that he was "curious", and he looked through the hole in the wall to see into the bathroom. He explained to the writer that when he was looking through the peephole, "he was excited to see the female roommates and his curiosity fuelled his excitement leading him to feel guilty."

[25] The PSR indicates that Mr. Sajeevan expressed guilt and remorse for his actions, after having read the four victim impact statements. At the same time, the PSR also indicates that he appeared to lack insight into the seriousness of his offending. Mr. Sajeevan's father – a police constable – confirmed that "this charge exists in India, and a person would be held accountable for it here as well."

V. VICTIM IMPACT STATEMENTS

[26] In determining a fit sentence to be imposed on an offender, section 722 of the Criminal Code requires the court to consider the harm suffered by victims of crime and the impact of the offence on victims through victim impact statements ("VIS").

[27] While the VIS is a factor for the sentencing judge to consider, it "should not overwhelm a sentencing decision": R. v. Fraser, 2016 ONCA 745, at para. 30.

[28] Four victim impact statements were filed by the Crown in this case, one by each of Mr. Sajeevan's four victims: (i) S.S.; (ii) A.S.; (iii) D.B.; and (iv) N.P. Brief summaries of each victim impact statement follow:

i. S.S.: Since learning of Mr. Sajeevan's crimes, S.S. has been living with intense fear and anxiety. She avoids using public washrooms. She has lost trust in friends. She "felt like [she] was living in a nightmare, and it truly felt like hell." She described that she had to take time off work, and that the fear and emotional distress arising from her victimization has made it difficult to function normally. She noted the significant breach of trust, in that Mr. Sajeevan "was capable of doing this to his own housemate, someone he lived with for two years".

ii. A.S.: A.S. communicated that she does not feel emotionally safe around men, and that these crimes have made it "very hard to trust people now, even [her] loved ones." She fears using public washrooms and those in her workplace, and she actively looks for hidden cameras in them. A.S. blames herself for Mr. Sajeevan's violations of her privacy, dignity, and safety. She struggles with anxiety and fear that she is constantly being watched. She suffers from social anxiety because of these offences. She took time off work due to stress and physical exhaustion. She is afraid to walk alone.

iii. D.B.: D.B. suffers from anxiety because of these offences. She does not feel safe. She has lost trust in people close to her. Her ability to sleep has suffered from the emotional distress that she has experienced. She, too, avoids using public washrooms for fear that someone may be watching her. She describes lasting emotional damage.

iv. N.P.: N.P. communicated that this incident has deeply affected her and changed how she lives and feels every day. She feels alone and afraid. She no longer feels comfortable in private spaces, like washrooms. She feels like she is constantly being watched. She describes the incident as having taken away her sense of safety, privacy, and control. She continues to struggle to feel normal and to find peace of mind. N.P. also missed work from the struggles resulting from her victimization.

[29] It is clear from these statements that Mr. Sajeevan's offending has had a 'chilling effect' on his victims, causing them to modify their behaviour due to fear of the consequences that may befall them should their behaviour be covertly observed by someone like him. The emotional and psychological harm caused is palpable. I find that Mr. Sajeevan's offending has had a significant and enduring impact on his victims.

VI. THE APPLICABLE LAW

i. Voyeurism at the Supreme Court of Canada

[30] In R. v. Jarvis, 2019 SCC 10, the Supreme Court of Canada found that Parliament's intent in enacting the voyeurism offence was to protect individuals' privacy and sexual integrity, particularly from new threats posed by the abuse of evolving technologies: at para. 48.

[31] The Court noted that "recordings made using a camera hidden inside a washroom will breach reasonable expectations of privacy regardless of the purpose for which they are made, the age of the person recorded, or the relationship of the person recorded and the person who did the recording": at para. 30.

[32] A few years later, in R. v. Downes, 2023 SCC 6, the Court confirmed that "[m]ost sex crimes, including voyeurism, are committed by men, while the victims are usually women and children": at para. 27. Voyeurism is therefore a profoundly gender-based sex crime.

[33] The Court further observed that "[v]oyeurism is thus both a sexual and a privacy-based offence. Section 162(1) is intended to deal with both these related harms: behaviour that violates sexual integrity, and behaviour that breaches privacy": at para. 28 (italics in original).

[34] In speaking to the essence of the delict, the Court observed:

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), 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. It can also cause emotional and psychological harm, even if the person is not observed or recorded when nude: at para. 47.

[35] The Court further endorsed the concern that where these violations of trust result in the creation of digital recordings, they "can be easily replicated, cropped and manipulated in ways and for uses that disregard [the victim's] right to control their own bodies […] while also exposing them to the shame and humiliation that often results from instantaneous and widespread dissemination": at para. 47.

ii. Purpose and Principles of Sentencing

[36] The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions with the following legitimate objectives of sentencing: denunciation; deterrence; rehabilitation; the protection of society; and promoting a sense of responsibility in offenders, and acknowledgement of the harm done to victims or the community: s. 718.

[37] The relative weighting of these principles depends upon the nature of the crime and the circumstances of the individual offender. Ultimately, "the overarching duty of a sentencing judge is to draw upon all the legitimate principles of sentencing to determine a 'just and appropriate' sentence which reflects the gravity of the offence committed and the moral blameworthiness of the offender": R. v. C.A.M., [1996] 1 S.C.R. 500, at para. 82.

iii. The Fundamental Principle of Sentencing

[38] The fundamental principle of sentencing is set out in s. 718.1: "A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender."

[39] A fit and appropriate sentence is one that is proportionate; said another way, proportionality is the organizing principle in achieving a fit, fair and principled sanction: R. v. Parranto, 2021 SCC 46, at para. 10; R. v. Morris, 2021 ONCA 680, at para. 59.

[40] As the Court of Appeal for Ontario has recently reaffirmed in R. v. Gilmore, 2025 ONCA 517, at para. 33:

The proportionality principle is rooted in retributive or dessert-based theories of punishment that define a just sanction as one that is deserved by an offender, based solely on the seriousness of the offence and an offender's moral blameworthiness. In Canada, proportionality operates as a restraint or limitation on punishment.

[41] The principle requires that "[t]he more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be": R. v. Lacasse, 2015 SCC 64, at para. 12; Morris, supra, at para. 66.

[42] The proportionality analysis includes recognition of the harm caused to victims by the offender's crime: R. v. Nur, 2015 SCC 15, at para. 43; Morris, supra, at para. 64.

iv. Other Relevant Sentencing Principles

[43] Section 718.2 lists additional principles that courts must consider in arriving at a just and appropriate sentence. I have specifically considered the following:

a. the mitigating and aggravating circumstances relating to the offence or the offender, s. 718.2(a).

b. the parity principle, s. 718.2(b): see R. v. Pearce, 2021 ONCA 239 at para. 17, where it has been said that this principle "preserves fairness in sentencing by promoting the equal treatment of offenders according to law. It applies as between […] the offender and others who have committed similar crimes, where those others are similar to the offender in terms of degree of responsibility."

c. the principle of totality, s. 718.2(c): where consecutive sentences are imposed for multiple offences, the sentencing court must ensure that the cumulative sentence does not exceed the overall culpability of the offender: C.A.M., supra, at para. 42.

d. the effect of a guilty plea as a sign of remorse: R. v. Johnston and Tremayne, [1970] 4 C.C.C. 64 (Ont. C.A.); R. v. Griffiths, 2025 ONCA 511, at para. 16.

e. the exercise of restraint, s. 718.2(d) and (e): where the imposition of a term of imprisonment should be the penal sanction of last resort.

f. where a term of incarceration must be imposed on a youthful first offender, the term should be as short as possible and tailored to the individual circumstances of the accused: see R. v. Priest, 30 O.R. (3d) 538 (C.A.), at p. 545.

v. Recent Voyeurism Sentencing Case Law in Ontario

[44] The Crown did not initially provide the court with any case law in support of its position. After my request for further submissions, the Crown provided the court with two cases: R. v. Medard, 2023 ONCJ 578, and R. v. B.H., 2017 ONCJ 377. In both cases, the defendants pleaded guilty to voyeurism. In both cases, the courts sentenced the first-time offenders to conditional sentence orders. However, in both cases there are meaningful distinguishing factors present which are not extant in this case.

[45] R. v. B.H. was a pre-Jarvis case from 2017. He was a vice-principal at an elementary school who had installed hidden cameras in the staff washroom, which he used to record male staff members of the school. None of the recordings were ever disseminated. The first-time offender pleaded guilty to nine counts of voyeurism. He was sentenced to a CSO for 16 months. Features that distinguish B.H. from the present case include the following: the offender lost his family; he lost his career; there was child abuse and a mental health explanation that informed his offending; he had been engaged in intensive therapy with a specialist and had a sex offender treatment assessment, with his future risk assessed as low.

[46] In R. v. Medard, the offender was a hospital security officer. A student nurse was using the staff washroom at the hospital and while she was sitting on the toilet she observed a cell phone underneath the sink. It was propped up by a Styrofoam cup. She picked up the phone and observed a video of herself using the toilet, her genitalia exposed. She deleted the video and advised other hospital staff. The phone belonged to, and was set up in the washroom by, Mr. Medard. He pleaded guilty to one count of voyeurism and was sentenced to a 12-month CSO. Prior to this incident, the offender had completed a Police Foundations course, with the conviction ending that career aspiration. A psychological risk assessment was completed, in which the offender was determined to be a low risk of recidivating. Further distinguishing that case from this one: Mr. Medard's case included a plea to a single count of voyeurism, for a single offence, that occurred on one single day, in relation to one victim only; the single victim did not provide a victim impact statement; Mr. Medard enjoyed broad support through character letters, and had completed various certificates, programs, and volunteerism. None of these factors is present in the instant case.

[47] Counsel for Mr. Sajeevan provided the court with a single case in support of his position: R. v. P.R., 2022 ONCJ 491. In that case, the offender was the father of his victim-son. On a single occasion, ten years earlier, the offender had made a surreptitious video recording of his son – who was then 9 or 10 years old – in his bedroom. But for a portion of the video when the victim is shirtless, he is otherwise robed, and his genitalia are not exposed. P.R. had no criminal record. He was sentenced to a 60-day conditional sentence order.

[48] To situate Mr. Sajeevan's case within the broader jurisprudential landscape in this province, I conducted my own canvass of recent voyeurism sentencing case law.

[49] In R. v. Jarvis, 2019 ONSC 4938, the offender was a schoolteacher who recorded two dozen students and one teacher. All victims were fully clothed, and while at school. The offender was a first offender who underwent counselling sessions, and a sex offender treatment report was prepared. He was sentenced to six months jail and 12 months probation. The court was not persuaded that the principles of denunciation and deterrence could be satisfied with a conditional sentence. These proceedings occurred after an original acquittal and appeals to the Ontario Court of Appeal and the Supreme Court of Canada.

[50] In R. v. R.R., 2022 ONCJ 407, the 27-year-old offender was found guilty after trial of sexual assault and voyeurism. Following the sexual assault, the offender took a photo of his victim's naked breasts. He had no criminal record. The sentence was six months jail on the voyeurism count.

[51] In R. v. Wong, 2022 ONCJ 546, the 52-year-old offender pleaded guilty to three counts of voyeurism. He was a photographer who, across two decades, had compiled some 9,000 voyeuristic files of his victims on various of his electronic devices. The offender completed psychotherapy and counselling sessions before sentencing. He was assessed as not presenting any future risk of recidivism. He had no criminal record. He was sentenced to 21 months jail, followed by 18 months probation.

[52] In R. v. Rhodes, 2022 ONCA 705, the Court of Appeal dismissed the offender's sentence appeal, where the trial judge sentenced him to a carceral term of 18 months (concurrent) for three counts of voyeurism, prowl by night, and indecent act. Two cell phones seized by police revealed multiple recordings of female victims in various states of undress, inside their homes, over a period of 2.5 years.

[53] In R. v. Seangio, [2023] O.J. No. 5869 (Ct. Jus.), the court found the 37-year-old offender guilty of 31 counts of voyeurism following a trial. The offender had immigrated to Canada, became a police officer, and had a supportive family. He had no criminal record. The offender was sentenced to 24 months jail.

[54] In R. v. Dowran, 2024 ONCJ 341, the 40-year-old offender pleaded guilty to two counts of voyeurism, consisting of two discrete events, where he had video recorded up a young girl's skirt at a mall, and another where he video recorded a woman in the nude at an Airbnb he owned. Dozens of other voyeuristic videos were located on his cellphone. A risk assessment was completed, and he was found to have a low-density range of criminogenic needs. The offender was sentenced to four months jail, followed by two years probation.

[55] In R. v. Riggs, 2024 ONSC 2862, the 60-year-old offender pleaded guilty to four counts of voyeurism for offences spanning six years. He had made numerous visual recordings of his female neighbour in various states of undress, including of her having sexual intercourse with her boyfriend. He had no criminal record. The offender was sentenced to 16 months, followed by three years probation.

[56] In R. v. Samal, [2025] O.J. No. 83 (Ct. Jus.), the 43-year-old offender pleaded guilty to one count of voyeurism. He had an Airbnb rental in which he employed a spy-cam that doubled as a phone charger to video record guests in his rental, including one couple having sexual intercourse and another in the nude. The offences spanned three months. He was an immigrant from India. He had a strong employment history. A risk assessment was completed, and the offender was determined to be at an average risk to reoffend. He had no criminal record. The court sentenced him to six months jail and two years probation.

[57] Finally, in R. v. T.O., 2025 ONCJ 42, the 44-year-old offender pleaded guilty to four counts of voyeurism and one count of theft. Using his cellphone, he had surreptitiously recorded children and adults, focusing on areas such as the buttocks, breasts, genitalia, and some persons in the nude. The offences spanned five years. There were more than 1,000 voyeuristic images in total. Both a PSR and psychotherapy report were completed. The offender was found to be in the low-moderate range for recidivism. He had no criminal record. The court rejected the appropriateness of a conditional sentence order, observing that the more significantly denunciatory effect of a carceral jail sentence was needed to convey the serious gravity of the offence, and to deter other potential offenders. The offender was sentenced to 18 months jail.

vi. The Availability of Conditional Sentence Orders

[58] Both the Crown and Mr. Sajeevan submit that a term of imprisonment, by way of a conditional sentence order ("CSO"), would be an appropriate disposition in this case. Section 742.1 provides:

If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community […] if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

(b) the offence is not an offence punishable by a minimum term of imprisonment;

(c) and (d) omitted as irrelevant to this proceeding.

[59] I find that a term of imprisonment in the reformatory range is appropriate in this case. I also accept that the offence of voyeurism is not an offence punishable by a minimum term of imprisonment. The crimes to which Mr. Sajeevan has pleaded guilty would make a CSO an available sentence in this case.

[60] This leaves open the question of whether the court can be satisfied that the safety of the community would not be endangered by the offender serving his sentence in the community, and that such a sentence would be consistent with the purpose and principles set out in sections 718 to 718.2. Satisfaction of s. 742.1(a) is a condition precedent to the imposition of a conditional sentence.

[61] To assess the potential danger to the community posed by the offender, if they were to serve their sentence in the community, two factors must be considered: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence. As the Supreme Court has stated: "If the judge finds that there is a real risk of re-offence, incarceration should be imposed": R. v. Proulx, 2000 SCC 5, at para. 69.

[62] If the judge finds an offender might pose some risk of endangering the safety of the community, "it is possible that this risk be reduced to a minimal one by the imposition of appropriate conditions to the sentence": ibid., at para. 72 (underlining added for emphasis).

[63] Other than the form of custody proposed, this proceeding did not start out as one where the Crown and the defence had agreed to make a joint submission on sentence in exchange for a guilty plea. This was not, initially, a case where the principles articulated in Anthony-Cook applied, though I accept that over a two-month period between my taking the pleas and the delivery of the PSR, those circumstances have changed.

vii. Joint Positions on Sentence and Anthony-Cook

[64] The Crown submitted in its written argument that a CSO is an appropriate disposition in this case, and that the now-joint position should be acceded to for the following reasons:

i. The lack of a criminal record;

ii. That Mr. Sajeevan's conduct was "opportunistic", and that "there is no indication he created the sight path that allowed him to observe his female roommates";

iii. He was cooperative with the investigation by his roommates, and then the police;

iv. He pleaded guilty. The Crown notes that this factor "has significant weight given the current climate of trial stacking. Trial stacking results in pleas on the date of trial that garner sentences that are at the low end of the range or in trials not being reached or in trials ultimately being stayed for 11(b)".

v. The potential for immigration consequences;

vi. That Mr. Sajeevan has been bail-compliant;

vii. A generally positive PSR.

[65] The Crown further submitted the following:

i. A CSO is a jail sentence with greater denunciatory and deterrent effect than simple probation;

ii. A CSO segregates the offender from the public through house arrest "and therefore protects society";

iii. A CSO offers greater rehabilitative opportunities than simple probation;

iv. A CSO "promotes reparations for harm done to the victims and promotes a sense of responsibility in the offender".

[66] The Supreme Court of Canada in Anthony-Cook has acknowledged that joint submissions on sentence after a guilty plea are "vital to the operation of the criminal justice system": at paras. 1-2.

[67] The Court stated that "[ g]uilty pleas in exchange for joint submissions on sentence are a 'proper and necessary part of the administration of criminal justice'" and that when properly conducted, "they benefit not only the accused, but also victims, witnesses, counsel, and the administration of justice generally": at para. 35 (emphasis added).

[68] The Court cautioned that a joint submission should not be rejected lightly: "Rejection denotes a submission so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons, aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that the proper functioning of the justice system had broken down", at para. 34.

[69] The Court of Appeal for Ontario has confirmed that even in cases where the joint submission is "lenient, perhaps even very lenient, this is not a permissible basis for rejecting it": R. v. Harasiuk, 2023 ONCA 594, at para. 25.

[70] Rejecting a joint submission on sentence should be done only in rare cases: Anthony-Cook, supra, at para. 54; R. v. Fuller, 2020 ONCA 115, at para. 16.

[71] The rarity with which joint submissions should not be endorsed by the court are due "to a large extent because of the quid pro quo provided by accused persons in giving up their right to a trial and pleading guilty in exchange for a joint submission. In exchange for their plea of guilty, accused persons require a high degree of certainty that the joint submission agreed upon will be respected": R. v. Wesley, 2025 ONCA 51, at para. 72 (emphasis added).

[72] With that said, joint submissions on sentence are not sacrosanct, and trial judges may depart from them: Anthony-Cook, supra, at para. 3. Indeed, the plea inquiry within section 606(1.1)(b)(iii) of the Criminal Code is explicit that "the court is not bound by any agreement made between the accused and the prosecutor".

[73] A judge's role includes maintaining public confidence in the institution of the courts, and sentencing judges should avoid rendering a decision that diminishes that confidence in the eyes of an informed and reasonable public: Anthony-Cook, supra, at para. 33.

[74] I accept that in seeking to maintain the public's confidence in the administration of criminal justice, my judicial discretion is tempered when dealing with joint submissions on sentence, and that departures from them should be exceptional and well-justified.

VII. THE SENTENCE

i. The Offences before this Court

[75] Mr. Sajeevan has been found guilty of surreptitiously observing and visually recording four female victims who were each in circumstances giving rise to a reasonable expectation of privacy – the bathroom of their own home, a widely-accepted 'safe place'. These crimes were perpetrated against them by someone they trusted, one of their housemates. These crimes occurred repeatedly over a period of some six months.

[76] The crime of voyeurism is a sinister one. It is a crime where the offender violates the personal integrity, safety, security, and privacy of their victim, without the victim knowing that they are being watched, in what are otherwise expected to be 'safe places'.

[77] The chilling effects of voyeuristic surveillance are predictable. As the victim impact statements before this court plainly show, the impacts of these crimes may result in the modification of the victim's behaviour due to their fear of unknown consequences of being secretly watched or recorded. This, in turn, results in a form of self-censorship, which itself intrudes upon the victim's sphere of personal autonomy, striking at the core of what it means to enjoy individual dignity and independence in a liberal democracy.

[78] When the voyeuristic act is video recorded, as it was here, the offender may purpose and repurpose the spoils of their violative act, often without the victim's knowledge, to whatever ends they choose.

[79] That potential for storing, duplicating, repurposing, or otherwise sharing such voyeuristic recordings presents the prospect of future and repeated violations of the victim's personal integrity, safety, security and their right to a reasonable expectation of privacy.

[80] Although the victims in this case believe that they deleted the voyeuristic recordings from Mr. Sajeevan's electronic devices, it is unknown whether the offending digital files had been stored or duplicated elsewhere, shared with anyone, posted to the Internet, or otherwise repurposed by Mr. Sajeevan in any other manner. To be clear, there is no evidence of such mischiefs having occurred, and I make no finding in that regard, but I do raise its possibility as a risk of potential future harm. At the very least, I can and do find that he recorded his crimes so that he could watch them as and when he wished to.

ii. Mitigating and Aggravating Considerations

[81] I find the following aspects of this case mitigating:

i. Mr. Sajeevan comes before this court as a youthful, 20-year-old, first-time offender. He has no prior criminal record and, but for these crimes, otherwise appears to be of good character.

ii. He pleaded guilty to these offences. In doing so, he has spared the Crown the burden of proving this case to the constitutional requirement, and he has saved court time and resources in doing so.

iii. I find that Mr. Sajeevan is sincerely remorseful for his crimes and is genuine in that he wishes to take responsibility for them.

[82] While collateral consequences, including immigration consequences, are not mitigating per se, Canadian criminal law recognizes that they may nevertheless speak to the personal circumstances of the offender. The question is "whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances": R. v. Suter, 2018 SCC 34, at para. 48; R. v. Pham, 2013 SCC 15, at para. 11.

[83] Consideration of collateral consequences is mandatory, not optional: R. v. D.B., 2025 ONCA 577, at para. 13.

[84] The weight to be assigned to collateral consequences, however, varies from case to case and should be determined having regard to the type and seriousness of the offence. This consideration is an exercise in discretion by the sentencing judge, and the question is always whether the sentence that is ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender: Pham, at paras. 12 and 14.

[85] Trial courts have also been cautioned not to impose "inadequate or artificial sentences at all, let alone for the purpose of circumventing Parliament's will on matters of immigration": R. v. Badhwar, 2011 ONCA 266, at para. 45.

[86] I accept, and have considered, that there may be serious collateral immigration consequences for Mr. Sajeevan because of his criminal conduct.

[87] By way of aggravating factors, I consider the following:

i. This was not a one-time moral failing on Mr. Sajeevan's part; rather, these crimes were committed multiple times, over a period of approximately six months.

ii. Multiple females were victimized by Mr. Sajeevan – four in total.

iii. Mr. Sajeevan surreptitiously observed – and video recorded – his female housemates while they were using the washroom in what should have been the safety and comfort of their home, a place that attracts an extremely high degree of privacy.

iv. The victims were, justifiably, significantly impacted by Mr. Sajeevan's repeated violations of their sexual integrity and privacy rights: s. 718.2(a)(iii.1).

v. Mr. Sajeevan's offending against his female housemates was a breach of trust.

vi. These crimes were video recorded on at least two different electronic devices, and Mr. Sajeevan kept these videos, which revictimizes and allows for repeated compromise of the privacy of the victims (by watching and re-watching them), including the potential to distribute them.

[88] In all of these circumstances, I find Mr. Sajeevan's offending to be grave, and his individual moral culpability to be very high. This was more than curiosity; it was sustained predation.

[89] In my view, the paramount sentencing principles here are denunciation, deterrence, and the protection of society. In Mr. Sajeevan's case, both general and specific deterrence are required. Given his lack of criminal record and his relative youth, I also recognize that rehabilitation remains an important factor.

[90] The parity principle requires that the sentence I impose on Mr. Sajeevan should be similar to sentences imposed on similar offenders committed in similar circumstances: s. 718.2(b).

[91] The totality principle requires that, where consecutive sentences are imposed, the overall sentence should not be unduly long or harsh: s. 718.2(c).

[92] While I agree with counsel that a term of imprisonment is appropriate in this case, I do not find that a conditional sentence order achieves the appropriate balance among the competing sentencing principles that I must weigh. This was not a case in which there was a quid pro quo with Mr. Sajeevan giving up his right to a trial in exchange for the high degree of certainty that a joint submission on sentence would have presented. Defence counsel only joined the Crown in its submission on sentence two months after the pleas were taken, long after it had become clear that the court was considering 'real jail'.

iii. The Anthony-Cook Issue

[93] Returning to the issue of joint submissions on sentence on a guilty plea, in the unique circumstances of this case, I am of the view that a departure from the position of counsel is warranted for the following reasons.

[94] First, contrary to the Crown's submission that Mr. Sajeevan's guilty plea should be given significant weight "given the current climate of trial stacking", this case came before me in a plea court, not in a stacked trial court. In fact, no trial date had ever been set in this matter. This was not a case where the Crown offered a low plea position because this case was competing for trial time on a stacked list. Nor was it in 11(b) jeopardy — Mr. Sajeevan pleaded guilty within some four months of the Information having been laid. And there are no apparent evidentiary problems in the Crown's case, certainly none that I was told of.

[95] Next, this case did not originally come before me as a joint submission where there was a "quid pro quo provided by [Mr. Sajeevan] in giving up [his] right to a trial and pleading guilty in exchange for a joint submission." Instead, this proceeding commenced as an informed and voluntary guilty plea with open submissions – it only became a joint submission two months after the pleas were taken. The original intent of the litigants was not one that can be described as having carried with it any degree of certainty, since the parties were eight months apart in terms of their submissions as to the length of sentence. The original terms of this resolution did not contemplate a joint submission at all: R. v. Omoragbon, 2025 ONCA 481, at para. 2; Nahanee, supra, at paras. 27, 30-41.

[96] Third, the Crown's submission that segregation of Mr. Sajeevan from the public through home confinement will protect society glosses over the fact that these offences were committed inside of his home, in the most private of places within his home (the bathroom), against the very people with whom he was residing. To suggest that home confinement is a fit and appropriate sentence is not just a tenuous proposition but, in my view, is one that is markedly detached from the realities of these offences and this offender. It stretches the bounds of credulity to imagine an optional condition to a CSO that is reasonably capable of preventing the commission of further offences of this sort, not to mention the logistical obstacles of actually enforcing them.

[97] Finally, the facts accepted by this court are that Mr. Sajeevan committed these offences on multiple occasions, against multiple female roommates, video recording his crimes on multiple devices, over the course of half-a-year. There is nothing in the record to console the court that he is at a low risk to reoffend. Rather, the PSR assesses Mr. Sajeevan as lacking insight into the seriousness of his offending behaviour and the resulting consequences for his victims, an appraisal with which I agree and adopt.

[98] In conjunction with his lack of insight, and in the absence of any evidence suggesting that he is at a low risk to reoffend, I find that the risk of Mr. Sajeevan reoffending is extant, and the gravity of any future recidivism can be effortlessly gleaned from the four victim impact statements filed in this case.

[99] Ultimately, I find that the now-joint submission of a 12-month conditional sentence order, in the circumstances of this case, for this offender, is inconsistent with the fundamental principle of proportionality. The proposed sentence does not sufficiently meet the principles of denunciation and deterrence (either specific or general). It is inconsistent with the recent jurisprudential authorities determining that nothing short of 'real jail' will meet the objectives of sentencing for like offenders, thereby offending the principle of parity. The now-joint position proposed, in my view, is something other than "very lenient"; rather, it is disproportionate to the gravity of these offences and the moral responsibility of this offender.

[100] In short, a conditional sentence order is so removed from the circumstances of these offences and this offender as to make its acceptance contrary to the public interest, having the potential to bring the administration of justice into disrepute. I find that ordering a CSO on these facts would cause an informed and reasonable member of the public to lose confidence in the institution of the courts.

[101] I am not satisfied that a term of imprisonment in the community would not endanger the safety of the community, including other potential unsuspecting victims. I cannot be satisfied that the precondition for imposing a CSO has been met: s. 742.1(a).

[102] I find that, on the facts of this case, only a truly custodial jail sentence can meet the requirements of sections 718-718.2. Consecutive jail sentences are warranted.

iv. Disposition

[103] I find that the fit and appropriate range of sentence for this offender on the facts of this case for the four offences pleaded to would be between six- and 12-months custody.

[104] Considering the uniqueness of how this case proceeded, however, I sentence Mr. Sajeevan as follows:

i. 42 days jail on each of the four counts, all jail sentences to be served consecutively, one after the other, for a total jail sentence of 168 days, or approximately five and one-half months.

ii. Following Mr. Sajeevan's release from custody, he will be bound by a Probation Order for a duration of 18 months, with the following terms attaching, in addition to the statutory conditions:

i. Report to a Probation Officer within three (3) business days of your release from custody, and report thereafter as directed;

ii. Reside as directed by your Probation Officer;

iii. Take any counselling as directed by your Probation Officer, including, but not limited to, sexual boundaries;

iv. Sign any releases that will permit your Probation Officer to monitor your enrolment in, attendance at, and progress in any such counselling;

v. Do not have contact or communication, directly or indirectly, through any physical, electronic or other means, with S.S., A.S., D.B., or N.P.;

vi. Do not attend within 100m of any place you know S.S., A.S., D.B., or N.P. to live, work, study, worship, frequent, or otherwise know them to be.

[105] I also direct that, pursuant to s. 743.21, Mr. Sajeevan is hereby prohibited from communicating, directly or indirectly, with S.S., A.S., D.B., or N.P., during the custodial period of this sentence.

[106] The Crown has requested a DNA order in this case. The offence of voyeurism is a secondary designated offence pursuant to s. 487.04(a). For an order under s. 487.051 to apply, the offence must be prosecuted by indictment. The Crown has proceeded summarily in this case. I have no jurisdiction to make a DNA order.

[107] The Crown has also requested that an order be made under the Sex Offender Information Registration Act, S.C. 2004, c. 10 ("SOIRA"). The offence of voyeurism is a secondary designated offence, pursuant to s. 490.011(1)(a)(i). A court only has jurisdiction to make this order "if the prosecutor applies for the order and establishes beyond a reasonable doubt that the person committed the secondary offence with intent to commit a primary offence": s. 490.012(15). The facts of this case do not support a finding that Mr. Sajeevan committed these offences with intent to commit any of the primary offences enumerated under s. 490.011(1)(a), and I therefore decline to make this order on that basis.

[108] Finally, given the impact that this jail sentence will have on Mr. Sajeevan's finances, I find that it would be an undue hardship to impose the victim fine surcharge, and it is waived, pursuant to s. 737(2.1)(a).

Released: 2 October 2025

Signed: Justice Craig A. Brannagan