R. v. I.P., 2020 ONSC 1754

R. v. I.P., 2020 ONSC 1754

COURT FILE NO.: CR 18-0538-00

DATE: 20201110

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

I.P.

Defendant

A. Midwood, for the Crown

Mary Cremer, for the Defendant

HEARD: September 28, 2020

sosna, j.

INTRODUCTION

1On June 5, 2019, the accused I.P. pled guilty to the following offences:

Count 1. I.P. stands charged that he, between the 23rd of February 2018 and the 2nd day of March 2018, at the City of Peterborough, Province of Ontario, did by means of telecommunication, communicate with a person who is, or the accused believes is, under the age of 16 years, for the purpose of facilitating the commission of an offence under s. 151, contrary to Section 172.1(1) (b) of the Criminal Code of Canada;

Count 2. And Further, I.P. stands charged that he, between the 23rd of February 2018 and the 2nd of March 2018, at the City of Peterborough, Province of Ontario, being a person bound by an Order of Prohibition under s. 161, prohibiting him from having any contact with a person who is under the age of 16 years, did fail to comply with the said Order, contrary to Section 161(4) of the Criminal Code of Canada;

Count 3. And Further, I.P. stands charged that he, between the 23rd of February 2018 and the 2nd of March 2018, at the City of Peterborough, Province of Ontario, did have in his possession child pornography, contrary to Section 163.1(4) of the Criminal Code of Canada;

Count 5. And Further, I.P. stands charged that he, between the 23rd of February 2018 and the 2nd of March 2018, at the City of Peterborough, Province of Ontario, did for a sexual purpose invite R.S., a person under the age of 16 years, to touch directly a part of his body, contrary to Section 151 of the Criminal Code of Canada.

2Sentencing submissions were completed September 28, 2020. The matter was adjourned for sentence returnable this date November 10, 2020.

3I.P. has remained in custody on these charges since his arrest on March 2, 2018.

POSITIONS OF THE PARTIES

4The Crown seeks a jail sentence of eight years less pretrial custody served to date. The defence seeks a jail sentence of five to six years less pretrial custody served to date.

5Both parties join on the imposition of the following ancillary orders pursuant to the provisions of the Criminal Code:

i. a DNA order on counts 1, 3, and 5;

ii. a section 109 Weapons Prohibition Order;

iii. a section 743.21 order of noncommunication with R.S.;

iv. a section 161 a, a.1, b, c, and d, order for a term of 20 years, and;

v. a SOIRA order for life.

AGREED STATEMENT OF FACTS ON GUILTY PLEAS

6R.S. was 15 years old at the time of the offences. I.P. was 28 years old.

7On February 24, 2018 R.S.’s mother thought [he] had been acting strangely so she took possession of his cell phone. Upon examination, she learned that [he] had been in contact with the male whom he had met online, through the site ‘Grindr’. [Her son] R.S. confessed that he was a homosexual and that he had met a male on the Internet. R.S.’s mother contacted Peterborough Police. Police investigated the matter and interviewed R.S.

8After some initial omissions about the sexual contact, R.S. disclosed to the police that on February 23, 2018 he had started communicating with a male identified to him as ‘Yanni’ (I.P.) through the Internet-based dating application ‘Grindr’, then continued through other text messaging applications (Text Now and Text Plus).

9At the outset of the conversation, R.S. [told] I.P. that he was 15 years old. This fact was acknowledged by I.P. I.P. later makes mention of R.S.’s grade 9 homework responsibilities and oversight of R.S.’s mother to his activities.

10I.P. then proceeded to ask for nude pictures of R.S. Several photographs were sent by R.S., which included pictures of his face, his body, and his penis (both erect and after ejaculating). These photos were received and acknowledged by I.P.

11I.P. requested that he and R.S. meet. On the morning of February 24, 2018, the two met at a park and left in a car driven by I.P. They drove to I.P.’s residence. I.P. lives in the basement of the home; his parents live upstairs and were not home at the time. R.S. and I.P. cuddled on the sofa where they held hands. The two watched a movie and then went into the hot tub.

12Following the hot tub, both parties unclothed and went into I.P.’s bed. I.P. performed anal intercourse on R.S. No condom was used; R.S. was unsure whether I.P. ejaculated. R.S. also masturbated himself and ejaculated. R.S. [was] the party who initially inquired about sexual activity in the bedroom and was subjectively willing to participate at the time.

13In the days that followed, their conversations continued over text messaging. I.P. told R.S. that he loved him, that he wanted to be in a relationship with him, and sent several other texts expressing affection. He also invited R.S. to do further sexual acts on him. At one-point I.P. expressed that “by the time ur 16 I should have my own place. Then we could stay together….”

14Further on, I.P. texted R.S. that he was shopping for sexual pleasure items at a local store. He sent a picture of handcuffs to R.S. from the store. R.S. had previously shared that handcuffs were his fetish.

15I.P. and R.S. began arrangements to meet again to see a movie. However, I.P. was arrested on March 2, 2018, at his residence. Handcuffs were found in I.P.’s truck following his arrest.

16In the course of these events, I.P. was in possession of a cellular phone that accessed the Internet, which he utilized to communicate with R.S. A warrant was executed on I.P.’s cellular phone and the text message exchange and photographs of R.S. were found. Those same texts and photos were also located on the phone supplied by R.S. to the police.

17At the time of these events, I.P. was bound by a Court Order pursuant to section 161 of the Criminal Code, prohibiting him from “having any contact-including communicating by any means-with the person who is under the age of 16 years.” He was also prohibited from “using the Internet or other digital network, unless the offender does so in accordance with conditions set by the Court.” No such conditions had been set by a Court.

VICTIM IMPACT STATEMENT (Exhibit 3)

18A victim impact statement was filed in which R.S. describes how the incidents have affected and changed his life to date.

19He describes trouble eating often going for days without food, and difficulty sleeping with restless nights plagued with “immense regret and self-shame.” He distrusts new people he meets fearing they may exploit him “for more than expected…feeling used as if he was nothing….”

20He has sought out therapy to deal with the embarrassment of having “…self-hate and shame for having to lie and cover up something that never should have happened.”

21R.S. was 15 years old when he had sex with I.P., a 28-year-old male. R.S.’s confusion, shame, and tragic self-loathing is palpable in his statement.

THE OFFENDER

22I.P. is 30 years of age. He is single. He has no children. He was born in Greece and raised in Canada by his adoptive Greek parents in a stable home environment. He was an only child. I.P. has largely resided with his parents.

23He had difficulty in school and was diagnosed with a learning disability and ADHD. His parents sought psychological assistance. I.P. obtained passing grades in high school and graduated in 2007 or 2008. He attended Sir Sandford Fleming College enrolling in a 6-week heavy equipment operator program. However, he was unable to finish the course finding the reading and writing frustrating.

24He has worked for various employers, including in the family restaurant. He has also worked seasonally in landscaping for a family friend, and later started his own unregistered landscaping business. Previously he had worked in the automotive industry, part- time at WalMart doing oil changes, and at a car dealership transporting customers. I.P. was considered a responsible employee.

25I.P. has no history of alcohol or drug abuse.

26I.P. has not maintained a serious relationship and has had fewer than 15 sexual partners, all male. At the time of the present offences, I.P. was living at home with his parents. He was unemployed having been recently released from custody.

27To be later detailed, I.P. has a cognate criminal record for convictions of sexually abusing young adolescent males and breaches of court orders.

APPLICABLE PRINCIPLES OF SENTENCING IN THE PRESENT CASE

28The Crown and defence have filed a list of authorities which I have considered. In that regard, I am guided by the recent decision in R. v. Friesen, 2020 SCC 9, [2019] S.C.J. No. 100 (SCC).

29As stated in R. v. Friesen at para. 122: “Section 718 of the Criminal Code provides that ‘[t]he fundamental purpose of sentencing is to protect society’. …This purpose takes on particular significance when criminal offences are enacted to protect vulnerable groups such as children from harm (see R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 SCR at paras. 76, 122, and 131-132).”

30Friesen sets out a list of non-exhaustive factors for consideration when sentences are imposed for offences that involve the abuse of children (at para. 105 and para. 121). A number of those factors are present in the case at bar.

(a) Age of the Victim

31Friesen notes that the age of the victim is a significant aggravating factor “…even more pronounced for younger children…” (para. 134); “At the same time, courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent” (para. 136).

32In the present matter the victim was R.S. was 15 years old.

(b) Degree of Physical Interference

33Friesen notes that:

…sexual violence against children [is] inherently wrong regardless of the degree of physical interference (para. 145). …[C]ourts should not assume that there is any clear correlation between the type of physical act and the harm to the victim. In assessing the significance of the degree of physical interference as a factor…[judges] can legitimately consider the greater risk of harm that may flow from the specific physical acts such as penetration (para. 142).

34In the case at bar, upon request, I.P. received nude photos of R.S. The sexual contact between them was anal intercourse performed on R.S.

(c) Victim participation

35At para. 148, Friesen observes that: “Parliament has determined that the age of consent to sexual activity in Canada is 16…[as]…children under the age of 16 are thus ‘incapable of giving true consent in sexual acts with adults’ (Hajar, at para. 40).”

36In the present matter it was R.S., age 15, who inquired about sexual acts, and willfully participated in them with I.T. Nevertheless, as observed at para. 152 in Friesen:

…a victim’s participation should not distract the court from the harm that the victim suffers as a result of sexual violence. We would strongly warn against characterizing sexual offences against children that involve a participating victim as free of physical or psychological violence…[As] the majority held in Hajar, “violence is inherent in [such offences] since [they] involve[e] an adult’s serious violation of a child’s sexual integrity, human dignity, and privacy even in cases of ostensible consent” (para. 115 (emphasis in original)).

37R.S.’s Victim Impact Statement (Exhibit 3) describes the shame, distress, and anguish experienced by him as a result of being sexually violated.

38Friesen also holds at para. 153 that a victim’s participation in sexual contact resulting from a campaign of grooming to be an aggravating factor on sentence.

…in some cases, a victim’s participation is the result of grooming by the offender…Where…grooming led to the participation, that should properly be seen as an aggravating factor (R. v. P.M. (2002) 2002 CanLII 15982 (ON CA), 155 O.A.C. 242 at para. 19; R. v. F. (G.C.) (2004), 2004 CanLII 4771 (ON CA), 71 O.R. (3d) 771 (C.A.), at paras. 7 and 21: Woodward at para. 43). Adolescence can be a confusing and challenging time for young people as they grow and mature, navigate friendships, and peer groups, and discover their sexuality. As Feldman L.A. wrote in P.M., to exploit young teenagers during the period by leading them to believe that they are in a love relationship with an adult “reveals a level of amorality that is of great concern” (para. 19).

39The admitted statement of facts in the present matter provide extensive evidence of grooming in text messages in which I.P. told R.S. that he loved him, wanted to be in a relationship with him, invited R.S. to do further sexual acts, and expressed that by the time R.S. became 16 they could stay together because he [I.P.] would have his own place.

(d) Guilty Plea

40“A guilty plea [as entered by I.P.] is a recognized mitigating factor; failure to consider a guilty plea can constitute an error in principle” (Friesen, at para. 164). However, a guilty plea in the face of a strong Crown case is entitled to less weight.

41Based on the Admitted Statement of Facts, the case against I.P. was particularly strong. The offences were corroborated in text messages exchanged and confirmed by warrants executed on phones registered to both R.S. and I.P. Accordingly, I.P.’s pleas of guilty carry less weight.

(e) Expression of Remorse

42Remorse is a relevant mitigating factor on sentence. Entered as Exhibit 2 is a hand- written statement prepared and read into the record by I.T. at the conclusion of sentencing submissions on September 28, 2020.

43In part, I.P.’s statement reads as follows:

I would like to start off by apologizing to my victim for the traumatic emotional damage that I have done to him. Nobody should have had to endure what he has had to go through. …I’m hoping that he’s able to get the help he needs…Again, I take full responsibility for my actions and any harm I have caused the victim. I am truly sorry for what I have done.

44Further review of remorse as a mitigating factor will be provided later in these reasons.

(f) Likelihood to Reoffend

45The likelihood of reoffending is canvassed in Exhibit 1, the psychiatric report authored by David Pearce MD, FRCPC. Dr. Pearce met with I.P. on February 12, 2020. For the preparation of his report. Dr. Pearce reviewed:

• Disclosure documents relating to the index offences, including a draft version of an agreed statement of facts (Exhibit 1A);

• Copy of I.P.’s criminal record along with transcripts in relation to certain criminal offences;

• Medical and psychological records, including the results of phallometric testing performed at CAMH on February 12, 2020.

46Some of these materials have been reviewed earlier in these reasons.

Previous Criminal Record:

47Integral to Dr. Pearce’s psychiatric assessment of I.P. was a review of I.P.’s criminal record. I.P.’s criminal convictions are as follows:

August 19, 2014 Convictions

Section 271. Sexual Assault

Section 151 (a). Sexual Interference

48The victim in both offences, C.C., was 13 years old. On May 31, 2013, police discovered him and I.P. in a parked truck. C.C. was partially clothed. When questioned, I.P. admitted he and the victim were “fooling around a little”. I.P. was arrested. I.P. admitted that prior to the police arrival he and C.C. had masturbated each other and provided oral sex to each other.

49Further investigation confirmed that over the prior 3 months, I.P. and C.C. communicated regularly on Facebook. They also met several times. On two occasions I.P. performed oral sex and masturbated C.C. He paid the victim $100.00. I.P. provided C.C. money and liquor at C.C.’s request. I.P. admitted that when arrested, he was aware of C.C.’s age, and that C.C. was under the influence of drugs.

Section 145 (3). Breach of Recognizance

50In May 2013, I.P. was released on a recognizance of bail after being charged with the above noted offenses. The terms of his release included terms that at all times he be in his residence, except when in the direct company of his surety, his father. Further, that he not possesses any cell phones, pagers, or mobile communication devices.

51Police received information that I.P. was having text message and email conversation with a third party who had listed his car on Kijiji. On January 24, 2014, during police surveillance, I.P. was observed in a department store with his mother, absent his father, his surety. I.P. was also found to be in possession of a cell phone.

52I.P was sentenced to a custodial period of 2 years less one day concurrent, on the sexual assault and sexual interference convictions, and 6 months concurrent on the Breach of Recognizance conviction. Additionally, I.P. was placed on probation for 2 years, and bound by a 10-year s. 161 Order.

Section 172.1 (1)(b). Luring a person under 16 by means of a computer for the purposes of facilitating the offence of sexual interference

Section 171.1 (1)(b). Making Sexually Explicit Material Available, namely male genitalia to a child for the purposes of facilitating the offence of sexual interference

53In January and February 2013, I.P. communicated on Facebook with the complainant J.N. J.N. was 14 years old. In one contact I.P. offered to perform oral sex on J.N. J.N. advised he was not interested. I.P. responded: “I don’t know I still want you. You can’t just say no, give me a chance.”

54I.P. sent J.N. an image of his penis. I.P. ultimately convinced J.N. to send him images of his penis. After receiving the images, I.P. responded writing: “Be honest, are you thinking you want to try it out…I know it’s too early to say this, but I actually really like you. I can almost use the word love.” He later picked up J.N. from school, took him to a liquor store and bought him a bottle of liquor.

55In a Facebook conversation, I.P. attempted to convince J.N. to talk to his friend, purportedly a bisexual, about engaging in a sexual encounter. J.N. advised that his friend J.B. might give I.P. a “H.J.” i.e. a hand job. I.P. asked J.N. “How are you going to make him do something bi to me…. If everything works out between us, I will probably buy him a IPhone 5.”

56J.N.’s friend J.B. was 13 years old. His mother contacted the police reporting him missing. She believed he was with I.P. Police investigation revealed that I.P. had earlier checked out of a motel accompanied by two young males. When later interviewed by the police J.B. confirmed that he and J.N. had run away from home and stayed one night in a hotel room rented by I.P.

57Police investigation further revealed that I.P. had Facebook communication with an adolescent T.M. T.M. was also one of J.N.’s friends. When interviewed, J.N. advised the police that T.M. had sent nude images of himself to I.P.

58On Facebook, I.P. made sexual propositions which T.M. originally declined. Responding to I.T.’s request that he send a nude photo, T.M. asked: “What would you do for me if I let you see it in person?” I.P. responded: “If you and I would actually do stuff, I’d give you $400.00, but I’d have to pay you slowly”. T.M. responded: “Okay, deal-if you tell anyone, no deal, okay?” Thereafter, I.P. and T.M. wrangled over arrangements.

59Their discussions ended when T.M. on threat of calling 911 attempted to extort $4,000.00 from I.P. In a police interview, T.M. admitted having Facebook discussions in which I.P. wanted nude pictures in exchange for money and liquor. T.M. admitted he threatened I.P. because he was angry.

60I.P. was assessed by a psychiatrist, Dr. Eccles, for sentencing purposes. Dr. Eccles diagnosed that I.P. was likely suffering from pedophilia. Further that I.P. was at a moderate risk to re-offend, or moderate-high to high risk if he violated terms imposed on him. Various treatment recommendations were made. Dr. Eccles also expressed concern about I.T.’s lack of remorse and empathy towards the victim C.C.

61In sentencing submissions I.T.’s counsel submitted that I.P. was amenable to treatment and was making progress. Counsel sought a reformatory range sentence.

62In addressing the Court prior to sentence I.P. apologized to the victims for hurting them and stated: “…no matter what happens I’ll always continue treatment….”

63I.P. was sentenced to a custodial term of two years less a day concurrent to the sentence of two years less a day for the Sexual Assault and Sexual Interference convictions.

March 29, 2017 Convictions

Section 151 (a). Sexual Interference

64In March 2013, I.P. posted a picture of his Mustang car on Facebook. The victim D.L. age 14 responded to the posting. I.P. offered to teach the victim how to drive. I.P. picked D.L. from his home and drove to a motel. At the motel he asked to shower with D.L. D.L. refused, left the motel room and sat in the driver’s seat of the Mustang.

65I.P. followed and sat in the front passenger seat stating he would not drive D.L. home unless D.L. agreed to be touched sexually. I.P. undid the victim’s pants, rubbed D.L.’s penis and performed fellatio. D.L. pushed the offender away and demanded to be driven home. D.L. drove the Mustang back to his residence. He had no further contact with I.P. after.

66In 2016 D.L. reported the incident to the police after I.P. was identified in local news coverage concerning outstanding sexual offences.

Section 161. Breach of a Prohibition Order

67On August 26, 2016, the mother of W.B. age 16, advised police authorities that her son had been involved in text communications with I.P. and was living with him.

68On August 19, 2016, I.P. was bound by a 10-year Prohibition Order arising from the convictions reviewed above. The Order prohibited I.P. from using the Internet or other digital network unless with conditions as set by the court. No such conditions had been set.

Section 490.013. Breach of the Sex Offender Registry Act

69Upon conviction of Sexual Assault and Invitation to Sexual Touching on June 25, 2014, I.P. was bound by a 20-year order under the Sex Offender Information Registry Act. One of the terms provided was that I.P. was to notify the Peterborough Police within 7 days of any change of address.

70On November 17, 2016, the Ottawa Police had learned that with his father’s help, I.P. had rented and moved into an apartment in Ottawa. That same day I.P. spoke to the Peterborough police and advised that he wished to move to Ottawa. When I.P. was confronted by the police that he had already moved to the Ottawa address, he was arrested and charged.

71I.P. advised he had lived in Ottawa for approximately one month. He had moved to Ottawa to start fresh and to contact a local psychiatrist Dr. Benjamin Federoff who he believed could treat him. I.P. stated he did not advise the authorities in advance of his move because “he wasn’t sure who he was supposed to tell.”

72As the 2013 Sexual Interference incident involving D.L. predated I.P.’s convictions in 2014, the Court imposed a sentence of 15 months in custody less pretrial time served. I.P. was further sentenced to 30 days consecutive for Breach of the Prohibition Order conviction, 15 days concurrent for breach of the Sex Offender Registry Act and placed on probation for 2 years.

Commitment to Treatment:

73This factor is also relevant to the question of likelihood to reoffend.

74At page 10 of his report Dr. Pearce outlines the following regarding I.P.’s commitment for treatment after he was convicted in 2014 for sexually exploiting adolescents and breach of bail. In part:

[I.P.] was incarcerated at the Ontario Correctional Institute (OCI). He found his time there to be “good, but at the time I was more in denial. I didn’t take anything as serious (sic). Same time as when I met Dr. Eccles in the past and did phallometric testing [for the purpose of the 2014 sentence]. I was hoping to get a lighter sentence then. I wasn’t taking things too serious (sic) and wasn’t as ready for treatment…I said I was straight but that was a lie right there. I said I had sexual encounters with a female but that wasn’t truthful…At the time I was just hoping for a lighter sentence and I figured saying that would help. The phallometric testing showed it wasn’t the truth.”

75When asked about his present treatment needs I.P. stated: “Definitely the sexual offender programming” both in custody and out of custody. He continued in part: “I truly want to change my life and stop this behaviour.” (Exhibit 1, pg. 16). “There ain’t (sic) no next time. If there is, it is going to be a Dangerous Offender [application] for sure.” (Exhibit 1, pgs. 16-17).

76This is consistent with I.P.’s statement to the court at the conclusion of sentencing submissions. In part I.P. stated:

I have been working on myself also while I’ve been incarcerated…I have also started a treatment plan with a registered psychotherapist on a continual basis for the time that I’m incarcerated. Through my parents I have been in touch with a well-known forensic psychiatrist named Dr. Paul Federoff from the Royal Ottawa Hospital. I have made arrangements for when I do get released to take his program, “Sexual Behaviours Clinic” (Exhibit 2).

77The reliability of I.P.’s bona fides for present treatment is challenged by his response to Dr. Pearce’s question whether his attraction to young boys is pedophilia.

78While admitting he was sexually attracted to young boys, I.P. responded:

…I’m not too sure. Sorry. He said he had not been diagnosed as pedophilic as far as he was aware. At this juncture, he was pointed to Dr. Eccles’ conclusions, in relation to pedophilia: he had brought copies of this 2013 report along with him. He said he had “never really read’” that report and that he “wasn’t too sure about the definitions”. When confronted about claiming he wanted treatment and also saying he had not read Dr. Eccles’ report, he said, “I should have taken time to read those reports…I should have gone over it in detail.” He eventually agreed that he likely suffers from pedophilia (Exhibit 1, pgs. 10-11).

79I find I.P.’s response is as self-serving and misleading, as his statement to the court when diagnosed with pedophilia in 2014, where he stated: “…no matter what I will always continue the treatment.” Given his negative response to treatment in 2014, I.P.’s commitment to the sentencing court was meaningless. Given his qualified statement to Dr. Pearce that he only likely suffers from pedophilia, I find I.P. continues to be in denial and has limited if any insight into the true nature of his condition. I.P.’s lack of insight is reflected in his statement to Dr. Pearce: “…that he was at low risk of re-offending…” (Exhibit 1, pg. 16).

80As previously observed, remorse is a relevant mitigating factor. When Dr. Pearce questioned I.P. concerning the impact his sexual abuse had on the victims, I.P. responded: “I truly want to change my life and stop this behavior. I’ve suffered and others have suffered.” (Exhibit 1, pg. 16). This accords with I.P.’s statement to the court regarding the present victim, R.S. In part I.P. stated:

I would like to start off by apologizing to my victim for the traumatic emotional damage that I have done to him. Nobody should have to endure what he has had to go through. …I’m hoping that he’s able to get the help he needs…Again, I take full responsibility for my actions and any harm I have caused the victim. I am truly sorry for what I have done (Exhibit 2).

81However as held in Friesen at para. 165:

…remorse gains added significance when it is paired with insight and signs that the offender has “come to realize the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending” (R. v. Anderson (1992), 1992 CanLII 6002 (BC CA), 74 C.C.C. (3d) 523 (B.C.C.A.), at p. 536) (emphasis in original)).

82I adopt these reasons. Absent insight and true recognition of his diagnosis of pedophilia, I.P.’s remorse rings hollow.

Likelihood to Reoffend

Phallometric Testing

83For the purposes of Dr. Pearce’s assessment I.P. underwent phallometric testing. Dr. Pearce reported: “Phallometric testing was indicative of hebephilia”, “…Hebephilia denotes an erotic preference for sexual activity with pubescent-aged children. This condition is on the same spectrum as pedophilia, in terms of deviant preferences” (Exhibit 1, pgs. 21 and 22).

Regarding risk assessment, Dr. Pearce:

84“[S]cored [I.P.] on the Static-99R, actuarial instrument designed to predict the likelihood of future sexual offence…[I.P.] scored +8. This is a ‘well above average risk’ score or a high score. …Of note, a score of +8 is at the 99 percentile; that is, [I.P.] scored higher than almost all offenders” (Exhibit 1, pg. 24).

85Dr. Pearce found: “…assuming a near immediate release from custody without conditions or supervision, as risk assessments typically do, in my opinion, [I.P.] is at a high risk of future sexual offence” (Exhibit 1, pg. 25).

FINDINGS

86As held in Friesen:

Where the sentencing judge finds the offender presents an increased likelihood of reoffending, the imperative of preventing further harm to children calls for emphasis on the sentencing objective of separating the offender from society in s. 718(c) of the Criminal Code (para. 123).

The offender’s likelihood to reoffend is clearly also relevant to the objective of rehabilitation in s. 718(d) of the Criminal Code. Courts should encourage efforts towards rehabilitation…At the same time, depending on the offender’s risk to reoffend, the imperative of providing immediate and short-term protection to children may preclude early release. In these cases, efforts at rehabilitation must begin with such treatment or programming as is available within prison (see R. v. R.M.S. (1997), 92 B.A.C. 148 at para. 13). In some cases, the only way to achieve both short-term and long-term protection of children may be to impose a lengthy sentence (see R. v. Gallant, 2004 NSCA 7, 220 N.S.R. (2d) 318, at para. 19, per Cromwell J.A. as he was then) (para. 124).

87Other than I.P.’s plea of guilty, the mitigating factors in the case at bar are few. However, the aggravating factors are significant.

88Those aggravating factors consistent with I.P’s criminal convictions for sexual abuse of adolescents and breaches of court orders include, I.P. trolling the internet seeking out and having sexual contact with male adolescents, grooming them with offers of money and or promises of commitment to relationships, while knowingly breaching court orders not to communicate or associate with any person under the age of 16 years and not use the Internet or other digital device unless with court approval.

89Coupled with I.P.’s lack of response to prior sexual offender treatment programming, and ongoing denial or at best minimization of his diagnosis of pedophilia, I find I.P. presents an increased likelihood of reoffending. As such, rehabilitation is of secondary importance to “…the imperative of preventing further harm to children” (Friesen, at para. 123).

CONCLUSION: THE APPROPRIATE SENTENCE IN THIS CASE

90Friesen at para. 114 states:

…imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will require substantial sentences…mid-range single digit penitentiary terms for sexual offences against children are normal and that upper mid-single digit penitentiary terms should neither be unusual or reserved for rare or exceptional circumstances.

91The Crown seeks an eight year custodial sentence. The defence seeks a sentence of five to six years. Based on the facts and circumstances of this case, and the Supreme Court’s mandate in Friesen, a sentence of eight years concurrent on all counts is fit and appropriate. Anything less would not be proportional to the seriousness of the offence and the degree of harm done by the offender to the victim. A lesser sentence would also fail to properly denounce the offences and deter others from engaging in similar behavior.

Credit for Pretrial Custody

92Counsel are in agreement that I.P. is to be given credit for 984 days of pretrial custody. Grossed up by a ratio of 1.5:1 results in a credit of pretrial custody of 1476 days, or 4 years and 3 weeks. For the purpose of this sentence, the pretrial credit will be rounded out to a credit of 49 months of pretrial custody.

Ancillary Orders

93Counsel have agreed on the following ancillary orders:

1. On Counts 1, 3, and 5, those being primary offences, I.P. is ordered to provide a suitable sample of his DNA;
2. Pursuant to s. 109 of the Criminal Code I.P. is bound by a 10 year weapons prohibition order;
3. Pursuant to s. 743.21 of the Criminal Code I.P. during the custodial period of his sentence is not communicate directly or indirectly with R.S.;
4. Pursuant to s. 161 of the Criminal Code for a term of 20 years I.P. is governed by conditions a, a.1, b, c and d, and;
5. Pursuant to s. 490.013, I.P. is governed by a SOIRA for life.

 

Justice Alexander Sosna

Released: November 10, 2020

CITATION: R. v. I.P., 2020 ONSC 1754

COURT FILE NO.: CR 18-0538-00

DATE: 20201110

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

I.P.

REASONS FOR JUDGMENT