COURT FILE NO.: CR-19-10000219-0000

DATE:20211015

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

ADAM COLLIER

Defendant

E. Evans, for the Crown

G. Gross-Stein, for the Defendant

HEARD: March 12, 2019, February 25, 2021, and June 24, 2021

Pursuant to s. 486.4(1) of the Criminal Code there is an order that any information that could identify the complainants shall not be published in any document or broadcast or transmitted in any way. Further, pursuant to s. 486.(4)(3) any information that could identify any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of s. 163.1 shall not be published in any document or broadcast or transmitted in any way.

REasons for sentence

H. mcarthur J.:

Introduction

[1] On December 5, 2019, I found Adam Collier guilty of five counts of communicating with a person he believed to be underage for the purpose of facilitating a designated sexual offence (“luring”); five counts of making sexually explicit material available to a person he believed to be underage for the purpose of facilitating a designated sexual offence (“make available”); and one count each of possession of child pornography, access child pornography, make child pornography, and attempt to make child pornography.

[2] I found that the Crown had established beyond a reasonable doubt that Mr. Collier communicated with, and sent sexually explicit material to, an undercover police officer posing as a 14-year-old girl named Addy, in order to facilitate various sexual offences. I also found that during the same time, Mr. Collier communicated with and sent sexually explicit material to six other individuals who held themselves out to be underage girls, to facilitate various sexual offences. Mr. Collier also had 19 unique child pornography images and 27 duplicate images on his computer: R. v. Collier, 2019 ONSC 7021.

[3] In reasons set out in R. v. Collier, 2021 ONSC 1721, I found that the rule against multiple convictions, or the Kienapple principle, applied: R. v. Kienapple, 1974 14 (SCC), [1975] 1 S.C.R. 729; R. v. Prince, 1986 40 (SCC), [1986] 2 S.C.R. 480, at para. 13. As a result, I found that convictions should be entered for Count 1 (communicating with a person believed to be under the age of 18 for the purpose of facilitating the offence of make child pornography, contrary to s. 172.1(1)(a) of the Criminal Code); Count 12 (making sexually explicit material available to a person believed to be under the age of 16 for the purpose of facilitating the offence of sexual interference, contrary to s. 171.1(1)(b) of the Criminal Code); and Count 5 (possession of child pornography, contrary to s. 163.1 of the Criminal Code). I determined that the remaining counts should be conditionally stayed.

[4] Defence counsel concedes that the paramount sentencing objectives in this case must be denunciation and deterrence. He argues, however, that these objectives could be met in the circumstances of Mr. Collier’s case by a conditional sentence, if it were a legally available sentence. However, there are mandatory minimum sentences associated with both the luring and make available offences and s. 742.1(b) of the Criminal Code prohibits conditional sentences for any offence punishable by a minimum term of imprisonment. Defence counsel thus brings an application arguing that the mandatory minimums are unconstitutional and seeks to have them declared of no force or effect pursuant to s. 52(1) of the Constitution Act, 1982. If successful on this application, defence counsel urges me to impose a conditional sentence of 18 months, followed by a one-year probation term. If unsuccessful, he urges me to impose a reformatory sentence.

[5] The Crown counters that given the gravity of Mr. Collier’s criminal conduct, the appropriate sentence is between four to five years of imprisonment. She further argues that if a reformatory sentence is deemed appropriate, a conditional sentence would be inconsistent with the purpose and principles of sentencing. In either case, she argues that it is unnecessary to consider the constitutionality of the mandatory minimum sentences in this case. Alternatively, she argues that the decisions declaring the one-year mandatory minimum for luring offences prosecuted by indictment to be unconstitutional are plainly wrong and urges me not to follow them: R. v. Chan and Sullivan, 2020 ONCA 333, at para. 38. Similarly, she submits that the defence has failed to establish that the mandatory minimum sentence for the make available offence is unconstitutional and urges me to dismiss the application to declare the provision to be of no force or effect.

[6] For the reasons that follow, I have determined that a sentence of two years less a day is fit and proportionate. I have concluded, however, that a conditional sentence would be inappropriate given the circumstances of this case. Mr. Collier’s offences were extremely serious, and his moral blameworthiness is significant. A conditional sentence would fail to give sufficient voice to the paramount sentencing objectives of denunciation and deterrence and would be inconsistent with the purpose and principles of sentencing.

[7] I propose to start out by briefly addressing the history of the sentencing proceedings. I will then outline the circumstances of the offence and Mr. Collier’s personal circumstances. Next, I will address the applicable legal framework before turning to my analysis.

The History of the Sentencing Proceedings

[8] Initial sentencing submissions took place on March 12, 2019 and I reserved my reasons. Then, Covid-19 struck. The date set for giving reasons on Mr. Collier’s matter was adjourned as at that time the court was only hearing emergency matters.

[9] Over the spring and summer of 2020, I case managed Mr. Collier’s matter by way of telephone. During this time, there were three significant new cases that potentially impacted on Mr. Collier’s matter.

[10] The first case was R. v. Friesen, 2020 SCC 9, which was released on April 2, 2020. Friesen sent a “strong message” that sentences for sexual offences against children “must increase”: para. 5. The court emphasised that this message applied to child luring offences, even where the offender was “outed” by an undercover operation as in Mr. Collier’s case, noting, “To be clear, child luring should never be viewed as a victimless crime”: para. 94.

[11] Friesen directed sentencing judges to properly reflect the gravity of the offence of luring and the moral blameworthiness of offenders by imposing exemplary sentences. As explained at para. 93:

Courts must give effect to the moral culpability of the offender in sentencing even where the facts giving rise to the conviction involve a police sting operation rather than a child victim. […] Although the absence of a specific victim is relevant, it should not be overemphasized in arriving at a fit sentence. The accused can take no credit for this factor. As such, it does not detract from the degree of responsibility of the offender for that offence.

[12] The second case was Chan and Sullivan, which was released on June 3, 2020. In Chan, the court held that where a law has been struck down pursuant to s. 52(1) of the Constitution Act, 1982 by a superior court judge, other superior court judges should respect the earlier declaration of unconstitutionality, absent cogent reason to conclude that the earlier declaration is plainly the result of a wrong decision. As explained in Chan, at para. 38, if a statutory provision has been declared unconstitutional by a superior court judge, a subsequent trial judge should “apply that earlier declaration of invalidity and treat the statutory provision as having no force or effect, unless the underlying constitutional issue has been raised by the Crown before them through submissions that the earlier decision is plainly wrong.”

[13] This was of import to Mr. Collier’s matter, as the one-year mandatory minimum in s. 172.1(2)(a) (luring) had been struck down in R. v. C.D.R., 2020 ONSC 645 and R. v. Faroughi, 2020 ONSC 780. Similarly, the one-year mandatory minimum in s. 163.1(2) (make child pornography) had been struck down in R. v. Joseph, 2018 ONSC 4646. In the same vein, while s. 163.1(4.1) (access child pornography) had a mandatory minimum of one year, several Ontario superior court judges had declared the previous mandatory minimum of six months to be unconstitutional.

[14] At the initial sentencing hearing on March 12, 2019, the Crown argued that although mandatory minimums associated with several of the offences for which I had found Mr. Collier guilty had been struck down by other superior court judges, since the defence did not bring a constitutional challenge, the mandatory minimums still applied. But after Chan, it became clear that this position could not be sustained. That is, if the Crown wished to rely on the mandatory minimums that had been struck down in decisions by other Ontario superior court judges, she had to establish that those decisions were plainly wrong.

[15] The third case was R. v. Sharma, 2020 ONCA 478, which was released on July 24, 2020. In Sharma, the court held that s. 742.1 of the Criminal Code, which removed the availability of a conditional sentence for offences prosecuted by indictment where the maximum penalty is 14 years or life in prison, was unconstitutional and declared it to be of no force or effect. This meant that a conditional sentence was potentially open to Mr. Collier, if the mandatory minimums associated with the offences for which he was found guilty were of no force or effect.

[16] I let counsel know that I required submissions on the potential impact of these decisions on Mr. Collier’s matter. I also let counsel know that I needed more fulsome submissions on the Kienapple issue.

[17] On November 4, 2020, the date set for further submissions on Mr. Collier’s matter, defence counsel brought an application to be removed from the record, citing a “serious loss of confidence” between Mr. Collier and themselves. After hearing submissions, I removed counsel from the record.

[18] Mr. Collier then retained Mr. Gross-Stein. Counsel provided further submissions on the Kienapple issue and I released my decision on that matter on February 25, 2021. Defence counsel then brought the above-mentioned application to have the mandatory minimums associated with the luring and make available offences declared to be of no force or effect. He further submitted that a conditional sentence should be imposed in Mr. Collier’s case.

Circumstances of the Offence

a) Facts Relating to “Addy”

[19] In the spring of 2017, Adam Collier posted an advertisement on the “Casual Encounters” section of the Craigslist website with the title, “Big cock for high school girl m4w (west end)”. An undercover officer responded to the ad posing as a 14-year-old girl named Addy.

[20] Addy told Mr. Collier that she was 14 years old and that she was in grade 9. Over the next two and a half months (from April 11, 2017 to June 29, 2017), Mr. Collier had sexualized email conversations with the Addy persona. He graphically described what he wanted to do with her sexually. He told the Addy persona to touch herself sexually and asked her to send him photographs of her naked breasts. He sent her photographs of his erect penis. He sent her two pornographic videos titled, “Rookie Teen Sucking Dick” and “sexy teen giving 1 hell of a BJ”.

[21] Mr. Collier talked about meeting with the Addy persona to have sex, and discussed various meeting spots with her, such as the Eaton Centre. Mr. Collier, however, never set up an actual meeting. On June 29, 2017, the police arrested him at his home.

b) Facts Relating to the Possession of Child Pornography

[22] After obtaining a warrant, the police searched Mr. Collier’s computer. Initially they found a few images that they identified as child pornography. They found other sexualized photos on his computer such as close-up views of female genitalia, buttocks, or breasts. However, they could not conclude that those close-up images were from underage girls.

[23] However, a further search of Mr. Collier’s computer revealed that he had been having email conversations with other individuals who held themselves out to be underage. At least one of these individuals sent him close up images of female genitalia, buttocks and breasts, claiming that they were photos they had taken of themselves.

[24] Given the claim that the images had been sent by an underage individual, the police categorized those images as being child pornography.

[25] The result was that the police characterized 19 images found on Mr. Collier’s computer as child pornography. Many of these images were saved in different subfolders on Mr. Collier’s computer, resulting in 27 duplicate images.

c) Facts Relating to the Others Who Held Themselves Out to Be Underage Girls

[26] As noted, during the same time frame that that Mr. Collier was emailing with the Addy persona, he was also having sexualized chats with six unknown individuals who held themselves out to be underage girls: S.S., D.D., J.D., S.C., T.B., and J.

[27] My findings of guilt were based only on the evidence relating to the Addy persona. I then briefly considered whether the Crown could prove that Mr. Collier engaged in luring or make available offences with the other individuals, noting that this would be of import when considering the appropriate sentence.

[28] With respect to two of these individuals, D.D. and T.B., I found that Mr. Collier engaged in luring or make available offences with the purpose of having sex with them, and that he believed them to be under 16. I was also satisfied that Mr. Collier engaged in luring and make available offences to facilitate the offence of make child pornography, with each of the six individuals. I found that he believed each of them to be under 18 and that he wanted them to take photos of their breasts or genitals and send the photos to him.

[29] While I determined that Mr. Collier believed these individuals were underage girls, I was unable to find beyond a reasonable doubt that they were who they claimed to be. That is, I cannot say that Mr. Collier was communicating with any actual underage girls.

[30] In brief, the evidence in relation to these six individuals was as follows.

[31] S.S. responded to ads with the subject “Highschool” and “hs girl”. She told Mr. Collier she was in grade 10. Given that she told Mr. Collier she was both 15 and 16, I could not be satisfied that he believed her to be under 16. However, I was satisfied beyond a reasonable doubt that Mr. Collier believed her to be under 18. Mr. Collier had numerous highly sexualized email exchanges with S.S. Mr. Collier sent S.S. pictures of his penis. She sent him numerous sexualized photos that she said were of her. He spoke about her visiting the city so he could have sex with her.

[32] D.D. responded to an ad posted by Mr. Collier with the subject, “hung for high school girl -m4w (near downtown)”. D.D. told Mr. Collier that she was 14 years old and in grade 9. Mr. Collier engaged in sexualized conversations with D.D. He sent her photos of his erect penis and asked her to send photos of her naked breasts. He asked her where she was in the city and talked about meeting her to have sex at the Eaton Centre. As I noted in my reasons, D.D. seemed to have an ulterior motive, as she repeatedly asked Mr. Collier to buy her lingerie.

[33] T.B. also engaged in email conversations with Mr. Collier. T.B. told Mr. Collier that she was “turning 14”.” When Mr. Collier asked for “pics”, T.B. sent a number of “selfie” photos that showed a girl consistent with T.B.’s stated age. Mr. Collier had sexualized email conversations with T.B. He discussed the sexual things he wanted her to do to him and that he wanted to do to her. He asked T.B. if she would meet him and asked where she was in the city.

[34] J.D. responded to an ad posted by Mr. Collier with the subject, “hung for high school girl- m4w”. J.D. told Mr. Collier that she was both 15 and 16. Given the discrepancy in the disclosed age, I was not satisfied beyond a reasonable doubt that Mr. Collier believed her to be under 16. I was satisfied, however, that he believed her to be under 18. Mr. Collier had sexualized conversations with J.D. and asked her to send “pics”. Mr. Collier discussed taking her virginity, saying “we can go slow”. He canvassed if she was in the downtown area of the city and told her he lived close to Kensington Market. After Mr. Collier sent J.D. a photo of his erect penis, she stopped responding to his emails.

[35] S.C. responded to an ad posted by Mr. Collier with the subject, “Handsome, hung for high school girl – m4w”. She told him she was 17 years old. Mr. Collier had sexualized email conversations with S.C. He asked her for “pics”. He then sent her a photo of his erect penis and asked if she could “hookup?” After that, S.C. stopped responding to his emails.

[36] J. responded to an ad with the subject, “interested”. She told Mr. Collier she was 17 years old and hoping to lose her virginity. Mr. Collier also had sexualized email conversations with J. He asked her if she had performed fellatio before and if she had any “pics”. Mr. Collier sent her pictures of his erect penis and asked her where she was in the city.

Mr. Collier’s Circumstances

[37] Mr. Collier is 39 years old. He lived with his mother and father for the first few years of his life, but his parents separated when he was quite young. Initially his parents shared custody. However, Mr. Collier’s mother had mental health issues. Mr. Collier reported that she was emotionally and verbally abusive to him. When Mr. Collier was ten years old, his mother had a severe breakdown. After that, Mr. Collier lived exclusively with his father and stepmother, Sarah Moran.

[38] Mr. Collier did fairly well academically in his early years. But he struggled socially. He was often bullied. When he was 17 years old, at the suggestion of the school counsellor, he was assessed by the Hincks-Dellcrest Centre. He was diagnosed with what was then referred to as Asperger’s Syndrome, or as it is more commonly referred to now, ASD. At the age of 19, Mr. Collier was prescribed antianxiety and antidepressant medication for the first time.

[39] Mr. Collier graduated from high school in 2001. However, he had low marks, and failed both English and Geography. Mr. Collier decided to go to night school to upgrade. He did well enough to be accepted to the University of Toronto, where he successfully obtained an Honours degree in philosophy. But, once again, he found it difficult to interact with his peers and he made few friends.

[40] Mr. Collier began to write plays, something he found he enjoyed and for which he had an aptitude. He submitted some of his work to competitions and won some awards. Several of his plays were produced at small independent theatres. Mr. Collier was then accepted to a prestigious writing program in New York for which he was awarded a partial scholarship.

[41] However, Mr. Collier’s mental health deteriorated during his time in New York. He suffered from severe depression and anxiety. His mental health issues were exacerbated when he began to lose his sight and had to undergo testing to rule out eye cancer. Ultimately, Mr. Collier had a complete breakdown, dropped out of the writing program, and returned home to Toronto.

[42] Once back in Toronto, Mr. Collier worked as a dishwasher and took some classes at the University of Toronto to upgrade. He also spent time volunteering. He spent three years as a “Volunteer Creative Assistant/Support Staff” with DramaWay, which features young actors with intellectual challenges or physical disabilities. A letter describing Mr. Collier’s work at the organization described him as a “positive” and “thoughtful” individual, who approached everyone with “broad-based affirmation”.

[43] Mr. Collier also spent several years volunteering at the Philip Aziz Centre for Hospice Care/Emily’s House. Their manager of volunteer services wrote that Mr. Collier was a compassionate, caring and enthusiastic volunteer” and that he made it “very clear” that he wanted to “contribute something good to the community that he lives in.”

[44] His time working in hospices motivated Mr. Collier to become a nurse. He upgraded his science courses and applied to the University of Toronto nursing program. He was accepted and started the program. However, in 2017, once again Mr. Collier experienced a mental health crisis. He took a leave of absence from the nursing program to address his issues. His stepmother observed that during this time Mr. Collier seemed “destabilised by severe depression and anxiety”.

[45] Mr. Collier sought out medical assistance and adjusted his medication. He also applied to the Cognitive Behavioural Therapy program at CAMH. After being on the waiting list for some time, Mr. Collier finally secured an appointment. However, as a result of being arrested and held in custody for five days, he missed his appointment.

[46] Mr. Collier’s mental health issues have worsened significantly since he was charged. In October 2018, Mr. Collier was admitted to the psychiatric ward of the Belleville General Hospital for six days because of depression and suicidal ideation. In September 2019, Mr. Collier was admitted to the Belleville General Hospital for three days on a Form 1.

[47] In October 2018, after being referred by the Mental Health Crisis Intervention Program, he began therapy with Marjorie Lewis, a registered psychotherapist. Since then, Mr. Collier has engaged in weekly 90-minute sessions with Ms. Lewis. Ms. Lewis wrote that she has worked with Mr. Collier to address his severe depression, anxiety, and the challenges of ASD. They have addressed the repercussions of his actions and worked on creating reliable strategies to prevent a repetition of his criminal conduct. Mr. Collier has worked “diligently” and gained insight that ‘proved deeply painful”. Ms. Lewis reported that in her sessions with Mr. Collier, he accepted responsibility for his actions and expressed remorse for his past choices and actions.

[48] In addition to seeking out therapy, Mr. Collier has significantly increased his medication. He now takes 1) 300 mg of Effexor; 2) 4 mg of Risperidone; 3) 7.5 mg of Zopiclone; 4)100 mg of Seroquel; and 5) 100 mg of Trazodone.

[49] Mr. Collier spent five days in custody before getting bail. He has been on bail for over four years, without incident. During that time, Mr. Collier has been prohibited from accessing a computer unless under the direct supervision of his surety.

[50] Mr. Collier filed several letters of support. His stepmother described Mr. Collier as an “extraordinary person”, who is “caring, hardworking, intelligent, gentle and creative.” She also wrote about her experience with Mr. Collier’s ASD, explaining how he has a poor grasp of social conventions, such as hygiene, dress, and manners and that he has difficulty with social interaction. She noted that he has poor coordination, motor skills and eyesight. She also spoke of his remorse, saying that Mr. Collier is stricken by the possibility that he harmed someone and that he is ashamed of his actions. Despite his struggles, she notes that Mr. Collier is committed to “doing the hard work” to address his mental health issues and ensure that he is never before the courts again.

[51] His father provided an overview of much of Mr. Collier’s life. His letter outlined the significant impact that his ASD has on him. He explained that Mr. Collier has little interest in “neurotypical standards of dress” and that he has poor fine-motor skills that strangers interpret as “clumsiness or weirdness.” He explained that Mr. Collier is often “undone by stress, followed by a mental health breakdown and subsequent depression.” He wrote about Mr. Collier’s breakdown when he was in New York and how it was exacerbated by Mr. Collier’s deteriorating eyesight. He described how Mr. Collier tenaciously went back to school to upgrade so he could get into nursing school, only to drop out in his first year of nursing because of his mental health issues.

[52] His father also provided wrote of the impact that being charged has had on Mr. Collier. His mental health issues have worsened, and he had to be hospitalized twice. However, his father also expressed that some good has come out of the charges, as Mr. Collier “finally got access to mental health care”, which includes a psychiatrist who changed his medication and a psychotherapist. He noted that Mr. Collier told him he felt remorse in two ways. First, he realised that his actions were selfish and might have damaged the people he corresponded with. Second, he feels sorry for having caused his stepmother and father so much pain.

[53] Mr. Collier’s sister also wrote a letter on his behalf. She is 16 years older than Mr. Collier, but spent a lot of time with him when he was a child. She explained how Mr. Collier had been a caring boy and that as he grew up, she observed that he was always respectful around woman. She also described how she had seen him in the months before he was arrested, and that he “seemed really alone” and she got “the feeling that things weren’t right.” While she loves him, she also expressed how “shocked and appalled” she was when she learned that Mr. Collier had been arrested for child luring. She was particularly angry at Mr. Collier when she saw the impact of his actions on his stepmother and her father, who went from being a happy and healthy senior to a confused and depressed man. While Mr. Collier showed “extremely poor judgment, she has observed that he “is extremely sorry and regrets so much what he did.”

[54] Suzanne Pasternak has known Mr. Collier since 1989. She highlighted his talent as a playwright, poet, and visual artist. After Mr. Collier was charged, she spent some time with him at his home, acting as a “house mom”. She and Mr. Collier had many “long and candid” conversations where he confided in her how “deeply depressed, anxious, and embarrassed the charges have made him, and his regrets for the all the pain he has caused his family.”

[55] Felies Einhorn is another family friend and has known Mr. Collier for over 15 years. She noted that Mr. Collier is a “kind and empathetic” person, who has many talents, particularly as a writer. She spoke about Mr. Collier’s struggles with mental health issues. She also reported that Mr. Collier has expressed remorse.

[56] John Hasyn is a close family friend and has known Mr. Collier since he was 14 years old. He expressed his belief that hat Mr. Collier is a “fundamentally good person”. He also said that he has seen Mr. Collier and his family several times since Mr. Collier was charged and has “witnessed directly the anguish, anxiety and remorse” that Mr. Collier feels for his crimes.

[57] Mr. Collier also filed a report authored by Dr. Graham Glancy, who conducted a risk assessment. Dr. Glancy concluded that Mr. Collier presents as a “very low risk” to reoffend. He also concluded that “ongoing involvement in a sex offence treatment group would likely further minimize the risk.”

[58] Dr. Glancy expressed his concerns that a custodial sentence would be difficult for Mr. Collier because of his ASD and mental health issues. Ms. Lewis expressed similar concerns.

[59] Mr. Collier took the opportunity at the end of his sentencing to express his remorse. He noted that he is committed to continuing his therapy and working on any underlying issues that led to his offending. Having had the opportunity to see and hear Mr. Collier make his comments, I have no doubt that he is profoundly sorry for his actions.

Applicable Legal Framework

[60] As noted in R. v. Lacasse, 2015 SCC 64, at para. 58, the “determination of a just and appropriate sentence is a highly individualized exercise that goes beyond a purely mathematical calculation. It involves a variety of factors that are difficult to define with precision.”

[61] Section 718 of the Criminal Code provides that the “fundamental purpose of sentencing is to protect society and to contribute ... to respect for the law and the maintenance of a just, peaceful and safe society...” This is to be accomplished through the imposition of just sanctions that have one or more of several objectives enumerated in s. 718(a) to (f), including denunciation, general and specific deterrence, separation of the offender from society, and rehabilitation.

[62] Pursuant to s. 718.01 of the Criminal Code, in offences involving the abuse of a person under the age of 18, the court is required to give primary consideration to the objectives of denunciation and deterrence of such conduct. While sentencing judges have wide discretion, this section restrains the sentencing judge’s discretion, and prevents them from elevating other sentencing principles such as rehabilitation to an equal or higher priority to denunciation and deterrence.

[63] Section 718.1 sets out the fundamental principle of sentencing, which is that any sentence imposed “must be proportionate to the gravity of the offence and the degree of responsibility of the offender.”

[64] In addition to proportionality, the Criminal Code lists a number of other principles to guide sentencing judges. The parity principle is set out in s. 718.2(b) and provides that a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Given the highly individualised sentencing process, however, sentences imposed for offences of the same type will not always be identical: R. v. Mann, 2010 ONCA 342, at para. 17; Lacasse, at para. 58.

[65] The totality principle is addressed by s. 718.2(c) of the Criminal Code. A sentencing judge who orders an offender to serve consecutive sentences must ensure that the combined sentence is not unduly long or harsh. The cumulative sentence imposed must not exceed the overall culpability of the offender: Friesen, at para. 157; and R. v. M. (C.A.), 1996 230 (SCC), [1996] 1 S.C.R. 500, at para. 42.

[66] The restraint principle is reflected in both ss. 718.2(d) and (e). As the Ontario Court of Appeal confirmed in R. v. Hamilton, 2004 5549 (ON CA), [2004] O.J. No. 3252 (C.A.), at para. 96, the principle of restraint means that the sentencing court should seek to impose the least intrusive sentence and the least quantum that will achieve the overall purpose of being an appropriate and just sanction. The principle of restraint is of importance when sentencing a first offender such as Mr. Collier: R. v. Priest, 1996 1381 (ON CA), [1996] O.J. No. 3369 (C.A.), at pp. 543-544; R. v. Nassri, 2015 ONCA 316, at paras. 30-31.

[67] The various sentencing objectives and principles can often be in competition with one another in that maximizing the denunciatory or deterrent effect of the sentence may be contrary to the rehabilitation of the offender and the principle of restraint, and vice versa. When this competition takes place in the context of luring offences, concerns about the rehabilitation of the offender cannot take precedence; despite any positive personal characteristics of the offender, the primary sentencing objectives must be denunciation and deterrence.

[68] That said, the competing objectives and principles must be balanced in a way that respects the principle of proportionality. The sentencing judge retains the discretion to assign significant weight to other factors, such as rehabilitation, in giving effect to the fundamental principle of proportionality: Friesen, at para. 104; R. v. Rayo, 2018 QCCA 824, [2018] Q.J. No. 4202 (Que. C.A.), at paras. 103, 107 and 108.

[69] Pursuant to s. 742.1 of the Criminal Code, with some exceptions, if a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, and the offence does not attract a mandatory minimum sentence, the court may impose a conditional sentence if satisfied that allowing the offender to serve their sentence in the community does not endanger the safety of the community and is consistent with the fundamental purpose and principles of sentencing.

[70] Since sentencing is highly individualized, the determination of a just and appropriate sentence requires the court to assess the aggravating and mitigating factors related to both the offence and the offender. Such an assessment is also mandated by s. 718.2(a) of the Criminal Code, which states that a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. I turn now to the aggravating and mitigating factors in the present case.

Aggravating and Mitigating Factors

a) Aggravating Factors

[71] Pursuant to s. 718.2(a)(ii.1) of the Criminal Code, the abuse of persons under the age of 18 is an aggravating factor. The Addy persona and the six other individuals with whom Mr. Collier was having the sexualized conversations with all held themselves out to be under 18.

[72] Moreover, the Addy persona was only 14 years old. Similarly, D.D. said that she was 14 and T.B. said she was “turning 14”. The young age of these individuals is a particularly aggravating factor.

[73] Mr. Collier also actively sought out sexual encounters with high school girls on Craigslist. As he admitted when testifying at trial, he knew that most high school girls would be under the age of 18. This is not a case where Mr. Collier responded to an advertisement and only learned that the person he was communicating with was underage after they had started chatting: see for example, Faroughi.

[74] Further, during the relevant time frame, Mr. Collier placed numerous ads seeking high school girls. He then engaged in sexualized chats with not just the Addy persona, but six others who held themselves out to be underage girls. This was not a momentary lapse or a one-time thing.

[75] The discussions he had with the Addy persona were lengthy, lasting over two months. Mr. Collier also sent a high volume of chats, often sending multiple communications throughout the day. The persistence and duration of the communications with the Addy persona are aggravating. Similar comments apply to the communications he was having with S.S.

[76] There were also some elements of grooming. I appreciate that to some extent the grooming is subsumed in the luring counts themselves. And Mr. Collier was overtly sexual with those with whom he communicated right from the outset, which militates against a finding of grooming. But grooming can encompass numerous circumstances. Here, Mr. Collier suggested a romantic bond with the Addy persona, thereby gaining her trust.

[77] Further, Mr. Collier used deception in that he told Addy he was in his 20’s. This lie is of import, as it seemed geared to furthering Mr. Collier’s goal of sexual activity with Addy, since a high school girl would likely be more attracted to a young man in his 20’s than a man in his mid 30’s. He used a similar deception in the emails with the other individuals. In my view, this is an appropriate factor to take into consideration as aggravating.

[78] Mr. Collier had child pornography images on his computer, which has been held to be an aggravating factor on luring offences that justifies higher sentences. That said, Mr. Collier must also be sentenced on the count of possession of child pornography. In such a situation, one option is to ignore the pornography offence when fixing the appropriate sentence on the luring offence, and then impose a consecutive sentence on the child pornography offence. The other option is to use the child pornography as an aggravating factor on the luring offences and order that the sentence for the possession of pornography be concurrent to the luring count. In the circumstances of Mr. Collier’s case, I find that this latter approach is the most appropriate.

[79] Mr. Collier went to trial on this matter. That is not an aggravating factor, but it does mean that he is not entitled to the mitigation in sentence that he might have received had he pleaded guilty.

b) Mitigating Factors

[80] Mr. Collier is a first offender. He has never been in trouble with the law before. By all accounts this incident was completely out of character.

[81] Mr. Collier has been out on bail for over four years. One term of his bail prohibited him from accessing a computer unless supervised by his surety, which during the internet age is not inconsequential. Mr. Collier has complied fully with his bail conditions, which demonstrates his capacity to be pro-social.

[82] Dr. Glancy opined that Mr. Collier is a very-low risk to reoffend. I agree with Crown counsel that there are some limits to his opinion as he relied significantly on some self-reporting from Mr. Collier that I rejected at trial. Moreover, he did not conduct phallometric testing. However, his testing did demonstrate that Mr. Collier does not have a psychopathic personality disorder. He also evaluated Mr. Collier using the Risk for Sexual Violence Protocol and the Static-2002-R instruments, which are generally accepted in the field as being relevant to a prediction of recidivism in child pornography and child luring, and determined that he was low risk. Given the tests conducted by Dr. Glancy, along with Mr. Collier’s lack of criminal record and the lengthy time he was on bail without incident, I accept that he is at very-low risk to reoffend.

[83] As a result of these offences, Mr. Collier will not be able to pursue a career in nursing as he had hoped to do. This is a collateral consequence that is properly considered when determining the appropriate sentence.

[84] Mr. Collier has ASD. As I noted in my reasons for judgment, while Mr. Collier has a mild form of ASD, I accept that his disorder makes it difficult for him to interact with others: Collier, at paras. 33-34. Dr. Glancy explained that in his experience, individuals with ASD are often bullied by other inmates and are easy targets. I had the opportunity to see Mr. Collier testify at his trial and to hear from him directly when he was a self-represented accused. Mr. Collier presents as having the “social skills deficits” that Dr. Glancy explained can cause difficulties in jail for those with ASD. I have no doubt that a jail sentence will have a particularly negative impact on Mr. Collier because of his disorder: see also, “Autism Spectrum Disorders in the Criminal Justice System: Police Interviewing, the Courtroom and the Prison Environment”, Recent Advances in Autism, Allely, Clare S., October 30, 2015; “Autism Spectrum Disorders in High Secure Psychiatric Care: A Review of Literature, Future Research and Clinical Directions”, Advances in Autism, Vol. 6(1), Murphy, D. and Allely, C.S., February 26, 2019.

[85] Mr. Collier also suffers from severe depression and anxiety. He was struggling with significant mental health issues at the time of his offending. Since being charged, his mental health has worsened. He has tried to commit suicide and has been twice hospitalized for mental health issues. His fragile emotional state will also make serving a custodial sentence more difficult for him.

[86] Mr. Collier has been actively engaged in weekly therapy sessions with Ms. Lewis since October 2018. He began his therapy well before conviction on these charges. He is also taking a variety of medications to address his mental health issues. His commitment to his treatment shows his understanding of the importance of addressing his long-standing psychological issues.

[87] Mr. Collier had a very loving and supportive family. This will assist him as he attempts to move forward from this incident. But it is also clear that Mr. Collier’s crimes have had a significant negative impact on both his father and stepmother. Mr. Collier is acutely aware of the pain that he has caused to his family. This has exacerbated his depression and anxiety.

[88] Mr. Collier has shown insight into his offence. He apologized and acknowledged his wrongdoing and the harm he has caused. I accept that he is genuinely sorry. That said, the mitigating value of his expression of remorse is lessened by the fact that it only emerged after conviction and before sentencing: R. v. K.T., 2008 ONCA 91;(2008), 89 O.R. (3d) 99 (C.A.), at para. 45.

Analysis

[89] Advances in technology and social media offer sexual predators with “unprecedented access” to potential child victims: R. v. K.R.J., 2016 SCC 31, at para. 102; Friesen, at para. 47. As a result, incidents of child luring and make available offences have proliferated. Sentencing is an important mechanism to both protect children from sexual offences such as luring and to clearly communicate the wrongfulness of this criminal conduct.

[90] Parliament has attempted to keep pace with the proliferation of such offences by amending sentencing provisions for sexual offences against children. To that end, in 2007 Parliament increased the maximum penalty for luring, when prosecuted by indictment, from five to ten years: An Act to Amend the Criminal Code (luring a child), S.C. 2007, c. 20. In 2012, Parliament brought in mandatory minimum sentences for luring and created the offence of making sexually explicit material available to a child: Safe Streets and Communities Act, S.C. 2012, c. 1. Then, in 2015, Parliament increased the maximum sentence for luring and make available offences, when prosecuted by indictment, from ten to fourteen years: Tougher Penalties for Child Predators Act, S.C. 2015, c. 23.

[91] Maximum sentences determine the objective gravity of an offence by indicating its relative severity. A decision by Parliament to increase the maximum sentence for an offence demonstrates its intention that the offence be punished more harshly: Lacasse, at para. 7; Friesen, at paras. 96-97; R. v. Lis, 2020 ONCA 551 at para. 49. Thus, as noted in Friesen, at para. 100, to respect Parliament’s decision to increase maximum sentences, courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences.

[92] Before Parliament increased the maximum sentences, many courts held that the range of sentence for luring generally lies between twelve months to two years: see for example, R. v. Jarvis, 2006 27300 (ON CA), [2006] O.J. No. 3241 at para. 31; and R. v. El-Jamel, 2010 ONCA 575, at paras. 9 and 35. Twelve-month sentences were often imposed for luring in the context of a police-sting operation: Rayo, at para. 126.

[93] However, in R. v. Woodward, 2011 ONCA 610, Moldaver J.A. (as he then was) held that the range for luring had to be revised because the maximum had increased: see also Rayo, at para. 125 and 175. Moldaver J.A. went on to suggest at para. 58 that, “if it is shown through the introduction of properly tendered evidence that the offence of luring has become a pervasive social problem… much stiffer sentences, in the range of three to five years, might well be warranted to deter, denounce and separate from society adult predators who would commit this insidious crime.”

[94] Cases that followed Woodward generally acknowledged that the sentences for luring must be increased to give effect to Parliament’s clear intention. However, courts still routinely imposed sentences in the reformatory range: see for example, R. v. Dragos, 2012 ONCA 538; R. v. Walther, 2013 ONCJ 107; R. v. Dobson, 2013 ONCJ 150; R. v. Rafiq, 2015 ONCA 768; R. v. Jaffer, 2018 ONSC 1271; R. v. A.H., 2016 ONSC 3709, aff’d 2018 ONCA 677; R. v. Paradee, 2013 ABCA 41; R. v. Gucciardi, 2017 ONCJ 770; R. v. Harris, 2017 ONSC 940, aff’d 2019 ONCA 193; R. v. Cowell, 2019 ONCA 972; and Faroughi.

[95] These cases, however, pre-date Friesen. Crown counsel argues that Friesen changes the legal landscape, as it establishes that luring has become a pervasive societal problem. As a result, she argues that the range of three to five years anticipated by Woodward is now applicable. The same argument was advanced and accepted in the recent decision of R. v. Moolla, 2021 ONSC 3702. There, Code J. highlighted that Parliament had increased the maximum sentence for luring in 2007 and again in 2015. He pointed out that child luring incidents had more than doubled between 2010 and 2017. He then referred to a discussion at paras. 113-114 of Friesen, from which he concluded that the Supreme Court had expressed the view that “the new range suggested in Woodward was to be ‘commended.’” As a result, he was satisfied that three to five years is now the appropriate range for luring.

[96] The Crown urges me to follow Moolla and find that the new range for luring is now three to five years. I am unable to do so for two reasons.

[97] First, I am not persuaded that the discussion at paras. 113-114 of Friesen was referring to a potential new and higher range for luring. Rather, I read it as commending the conclusion in Woodward that for sexual offences against children, even where there is only a single instance of sexual violence and/or a single victim, mid-single penitentiary terms are normal and upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional cases.

[98] Second, ranges are “summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives”: Friesen, at para. 36; Lacasse, at para. 57. As the court explained in Friesen, at para. 33: “Precedents embody the collective experience and wisdom of the judiciary.”

[99] Clearly, sentences for luring offences must increase post-Friesen. But at this stage, there have been relatively few decisions applying the principles set out in Friesen to luring cases. There have been no Ontario Court of Appeal decisions articulating a new range. In my view, I have an insufficient body of caselaw to properly evaluate where the new range for luring should fall.

[100] In any event, while a new range has yet to emerge from the caselaw, as the Supreme Court has repeatedly held, ranges are guidelines, not hard and fast rules: Friesen, at para. 37; Lacasse, at para. 60; R. v. Wells, 2000 SCC 10 at para. 45; R. v. Nasogaluak, 2010 SCC 6, at para. 44. As noted in Friesen at para. 38, there may be a particular combination of aggravating and mitigating factors that calls for a sentence that “lies far from any starting point and outside any range: see also Lacasse, at para. 58; Nasogaluak, at para. 44, R. v. Suter, 2018 SCC 34, at para. 4. The issue for me is to try to determine the appropriate sentence for Mr. Collier, having regard to the gravity of his offending conduct and his moral culpability.

[101] One post-Friesen luring decision is R. v. Aguilar, 2021 ONCJ 87. There, the offender was sentenced to 14 months in custody for child luring and 6 months concurrent for the offence of communicating with a child for sexual services. Mr. Aguilar had responded to an advertisement placed by the police for the sexual services of an 18-year-old sex trade worker. He agreed by text message to pay for sex after the undercover officer held herself out to be a 14-year-old girl. Mr. Aguilar arrived at the pre-determined spot with cash and a condom. He was found guilty after a summary conviction trial. Mr. Aguilar was largely pro-social and had diabetes, which meant that he had particular concerns about Covid-19. However, he showed no insight and did not accept that he had offended.

[102] The Moolla case is one of the few post-Friesen decisions dealing with the appropriate sentence for the offence of luring when prosecuted by indictment. Moolla is factually similar to the present case. Mr. Moolla placed an ad on Craigslist seeking a sexual relationship with a girl who was “at least 16 and at most 19”. An undercover officer contacted him posing as a 14-year-old girl named “Addison”. Mr. Moolla sent hundreds of messages to the Addison persona, many graphically outlining the sexual things he wanted to do with her. He also sent her a photograph of his partially erect penis. Mr. Moolla arranged to meet the persona and the police arrested him as he was walking towards a nearby café where the persona was supposed to be waiting for him. Code J. sentenced him to three and a half years in custody.

[103] Mr. Collier’s conduct was more serious than Mr. Moolla’s, in that he communicated with the Addy persona for a longer time and sent her pornographic videos, while at the same time engaging in similar conduct with others who held themselves out to be underage girls. However, Mr. Collier does not have the aggravating feature in Moolla of actually attempting a physical meeting. While Mr. Collier discussed meeting Addy and some of the others, he took no active steps to facilitate such a meeting.

[104] Mr. Collier’s personal circumstances are also highly distinguishable from the offender in Moolla. Mr. Moolla had a criminal record and was on probation at the time of the offence. He showed no insight into his offending and continued to deny that he had committed any crime. At his sentencing, he asserted that he had ASD. However, Mr. Moolla was adamantly opposed to seeking any kind of assessment, treatment, or counselling.

[105] R. v. J.R., 2021 ONCJ 14, is another post-Friesen decision. There, the offender was sentenced to five years for luring. However, the J.R. case is highly distinguishable from the present one. J.R. was a repeat sexual offender. His daughter/granddaughter, M.G., was removed from his care and placed in foster care when authorities learned that she had been born to her stepsister, P.G., whom J.R. had impregnated following years of sexual abuse. J.R. was granted limited access by the family court when M.G. was 11 years old. J.R. then provided M.G. with a cellphone and began to text her secretly, in violation of a prohibition order. Over several months of secret communication, J.R. demanded that she send him nude images of her breasts and genitals in exchange for new electronics and his continued visits. He threated to never see her again and to throw out her belongings if she failed to deliver. M.G. pleaded with her father to stop asking for such photos, but eventually gave in to his demands. She finally disclosed to her foster-mother that he was demanding pornographic photos from her and he was arrested. M.G.’s victim impact statement highlighted the tremendous emotional damage J.R.’s conduct caused.

[106] In sentencing J.R. to five years in custody, the court highlighted that, “J.R.’s covert prolonged online predation of his own particularly vulnerable child while she was in foster care far exceeds the gravity of other examples of sexual exploitation by adults of children who were previously unknown to them, and whom they might never meet.”

[107] In R. v. Lemay, 2020 ABCA 365, another post-Friesen matter, the Alberta Court of Appeal dealt with a Crown appeal from a sentence of three and a half years for luring and sexual interference. Mr. Lemay was friends with J.R.E.’s father, and she considered him to be her “Uncle”. When J.R.E. was 15 and the offender was 35, he began texting her and quickly moved the communications to sexual matters. He sent her a picture of his penis and pressured her to send pictures of her genitals. Eventually she sent him pictures of her breasts, buttocks, and vagina. He then sent her videos of himself masturbating. They wound up meeting five times in person, and the offender touched her breasts and had her perform fellatio on him, ejaculating in her mouth each time. Once he tried to put his penis in her vagina but stopped when she screamed in pain. The victim impact statement filed by J.R.E. and her family poignantly set out the harm that the offender had caused. Mr. Lemay suffered from depression, anxiety, mild PTSD, and panic attacks. He had a history of self-harm, including multiple suicide attempts. Noting that the offender had breached his position of trust as an uncle figure, the Court of Appeal substituted a sentence of four years for the sexual interference.

[108] On the luring count, the court relied on Friesen and stated that “[a]s with other offences involving the victimization of children, society’s understanding of the gravity of luring has evolved in recent years. Parliament has responded; the courts must as well.” The court then imposed a sentence of eighteen months for the luring offence to be served consecutively.

[109] Turning to Mr. Collier’s matter. As I noted above, the paramount sentencing objectives in this case must be denunciation and deterrence. A significant sentence is required to properly denounce his conduct. It must be said in no uncertain terms that offences targeting children are reprehensible. Moreover, those who might be inclined to commit such offences must know that they will receive significant sentences if they do. Mr. Collier must understand that if he were to engage in similar conduct, there will be severe consequences.

[110] As noted in Friesen, at para. 123, when the court finds that the offender poses 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 Mr. Collier’s case, there is little likelihood that he will reoffend. Dr. Glancy assessed him to be very-low risk to reoffend. Mr. Collier has lived a largely pro-social life and has been on bail for over four years without incident. Given that, the sentencing objective of separating him from society does not need to be emphasized.

[111] Moreover, given the mitigating factors in Mr. Collier’s case, rehabilitation is an important objective. Mr. Collier has shown insight, accepted responsibility and expressed remorse, albeit after his conviction. Mr. Collier committed these offences when he was in the throes of significant depression. He has since taken steps to address his mental health issues. He has increased his medication and engaged in weekly therapy sessions.

[112] As explained in Friesen, at para. 124, courts should encourage efforts towards rehabilitation because it offers long-term protection. Rehabilitation may weigh in favour of a reduced term of incarceration followed by probation since a community environment is often more favourable to rehabilitation than prison. In my view, Mr. Collier’s matter is one of the cases where a reduced term of incarceration along with a term of probation is appropriate. Balancing the aggravating and mitigating factors, and considering the relevant sentencing principles and objectives, I have concluded that a fit and proportionate sentence is two years less a day.

[113] A sentence of less than two years means that a conditional sentence is potentially open to Mr. Collier (subject to the constitutionality of the mandatory minimums). There is no dispute that having Mr. Collier serve his sentence in the community would not endanger the public, which is a precondition for a conditional sentence.

[114] The leading case on conditional sentences in the context of child luring offences is R. v. Folino, 2005 ONCA 258. In that case, Mr. Folino pleaded guilty to one count of child luring and received a nine-month custodial sentence. The Court of Appeal substituted a conditional sentence of 18 months. In concluding that a conditional sentence was fit, the court considered that Mr. Folino had been taking ongoing therapy and had shown significant progress in learning how to better cope with stress. The court also considered a psychiatric assessment that any period of incarceration would be “extremely harmful” to his mental state and might culminate in his possible suicide. He also had heart issues. The court determined that a conditional sentence was warranted as the evidence showed that Mr. Folino was “in a very fragile mental and physical state” and that incarcerating him would have a detrimental impact on him as well as on his three young children. However, the court also cautioned that “it will only be in the rarest of cases that a conditional sentence will be appropriate” for the offence of child luring.

[115] I agree with the Crown submission that if conditional sentences for luring offences were rare before Friesen, then post-Friesen, such sentences will necessarily be even less common. The question is whether Mr. Collier’s matter would qualify as one of the very rare cases where a conditional sentence would be fit.

[116] In assessing this question, I take into consideration the many mitigating factors in Mr. Collier’s case. Again, he has shown insight into his conduct, accepts responsibility for his actions, and is genuinely remorseful. He is dealing with long-standing mental health issues by increasing his medication and by engaging in weekly therapy session. Despite the strides he has made, he still suffers from severe depression. Mr. Collier is in a fragile emotional state, and a custodial sentence will have a detrimental impact on his mental health. Similarly, his ASD will make any jail sentence more difficult for him to serve.

[117] I also take into consideration that if I were to sentence Mr. Collier to jail, he would be stepping into custody during a pandemic. That said, the law is clear that concerns regarding the pandemic must not reduce a sentence to the point that it becomes disproportionate to the gravity of the offence or the moral blameworthiness of the offender: R. v. Morgan, 2020 ONCA 279, at paras. 10-11; R. v. Studd, 2020 ONSC 2810, at para. 42.

[118] Here, Mr. Collier committed luring and make available offences with Addy, someone he believed to be a 14-year-old girl. At the same time, he was engaging in luring and make available offences with six other individuals who held themselves out to be underage girls. His conduct was extremely serious. While the absence of a victim is relevant, it cannot be given undue weight. It simply means that Mr. Collier’s matter does not have the aggravating feature of consequential harm caused to a real victim. But the lack of a victim does not detract from Mr. Collier’s significant moral blameworthiness.

[119] As Friesen makes clear, an exemplary sentence must be imposed to properly denounce Mr. Collier’s reprehensible conduct. Further, my discretion is constrained, and I am not permitted to elevate concerns about Mr. Collier’s rehabilitation, over the need to denounce his conduct and deter other like-minded individuals. Considering all of the circumstances, I have determined that a conditional sentence is unfit. Given the gravity of Mr. Collier’s offences and his high moral blameworthiness, a custodial sentence is required. Despite the mitigating factors in his case, a conditional sentence is inconsistent with the purpose and principles of sentencing.

[120] In my view, a custodial sentence of two years less a day, followed by two years probation, is a fit and proportionate sentence. This sentence gives paramount voice to the objectives of denunciation and deterrence, while still giving weight to the objective of rehabilitation and the principle of restraint.

[121] In arriving at the sentence, I considered whether the sentences should be consecutive or concurrent, and the principle of totality: Friesen, at para. 158. The luring and make available counts are connected. Given that, and the principle of totality, in my view it is appropriate that they be concurrent to each other. Further, in fixing the appropriate sentence, I considered the child pornography offence as an aggravating feature on the luring. For that reason, and also having regard to totality, the sentence for this offence should also be concurrent to the luring.

[122] The sentence should be structured as follows:

• Two years less a day on Count 1 (luring);

• Two years less a day on Count 12, (making available), concurrent to Count 1; and

• One year on Count 5 (possession of child pornography), concurrent to Count 1.

[123] I strongly recommend that Mr. Collier be permitted to serve his sentence at the Ontario Correctional Institute. Based on all of the information put before me, I am satisfied that Mr. Collier’s offending was driven in part by his mental health issues. At the time of his offending he was isolated, depressed and in crisis. Mr. Collier is highly motivated to address his mental health issues. He has been engaged in ongoing therapy and would benefit from cognitive behavioural strategies.

[124] Dr. Glancy concluded that “ongoing involvement in a sex offence treatment group” would minimize any risk posed by Mr. Collier. Ms. Lewis wrote about the importance of Mr. Collier receiving “the appropriate ongoing medical and psychiatric treatment.”

[125] In my view, it is essential that Mr. Collier be housed at the Ontario Correctional Institute so that he can receive the appropriate treatment while serving his sentence.

[126] Following his sentence, Mr. Collier will be on probation for a period of two years. The terms of the probation are attached to these reasons as Appendix “A”.

[127] Given my conclusion on the conditional sentence, I will not go on to consider the constitutionality of the mandatory minimums in this case. But I would like to thank Crown and defence counsel for their excellent and helpful submissions. I am grateful for the diligence and professionalism of both counsel.

Ancillary Orders

a) Section 161 Order

[128] The Crown argues that I should order Mr. Collier to comply with ss. 161(1)(a)(b)(c) and (d) of the Criminal Code for 10 years. Defence counsel counters that imposing s. 161(1)(a) prohibition order could interfere with Mr. Collier’s rehabilitation, as the prohibition from attending public parks and similar areas will have an isolating effect. He argues against s. 161(1)(d) on the basis that it will interfere with Mr. Collier’s ability to work and to further his education, which will impede his rehabilitation. He also argues that this prohibition is too restrictive in a world increasingly dependent on digital technology, particularly during a pandemic. Overall, he argues that any s. 161 order is unnecessary because there is no evidence that Mr. Collier has ever had actual sexual contact with a child, and he is a very-low risk to reoffend.

[129] The court in K.R.J. explained that s. 161 orders are not available as a matter of course. Such orders should only be imposed when there is an evidentiary basis upon which to conclude that the particular offender poses a risk to children and the court is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk. Further, the content of the order must carefully respond to an offender's specific circumstances.

[130] In my view, there is no evidentiary foundation to impose a s. 161(1)(a) prohibition order in this case. Mr. Collier’s offending did not take place in any public place, such as a park or swimming area. There is no suggestion that he has ever attempted to sexually abuse a child in such a context.

[131] On the other hand, I find that it is appropriate to impose a prohibition order pursuant to s. 161(1)(b), prohibiting Mr. Collier from seeking, obtaining or continuing any employment, whether or not it is remunerated, or becoming or being a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years. This will be for five years. Given the circumstances, in my view this order is reasonable and appropriate.

[132] I also find that it is appropriate to impose a prohibition order pursuant to s. 161(1)(c) prohibiting Mr. Collier from having any contact, including communicating by any means, with a person who is under the age of 16, unless Mr. Collier does so under the supervision of someone over the age of 21 who is aware of his convictions. This will be for five years.

[133] Finally, there is an evidentiary foundation to support the imposition of a s. 161(1)(d) order. Mr. Collier used his computer and the internet in his offending. However, in my view the conditions being suggested by the Crown are excessive and unreasonable. Instead, I find it is appropriate to order that pursuant to s. 161(1)(d), Mr. Collier is prohibited from using the internet or other digital network, unless he does so for the purposes of employment, education or under the supervision of an adult over the age of 21 who is aware of his convictions. In my view, these conditions address any risk posed by Mr. Collier in a reasonable and restrained way. In drafting the conditions, I have considered Mr. Collier’s very-low risk of reoffending.

[134] DNA Order

[135] Luring and make available are both primary designated offences. As a result, pursuant to s. 487.051(1) of the Criminal Code, I make an order authorizing the taking of samples from Mr. Collier` for the purpose of DNA testing.

b) SOIRA Order

[136] Further, pursuant to ss. 490.012(1) and 490.013(2.1) of the Criminal Code, Mr. Collier is required to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for life.

c) Forfeiture Order

[137] Pursuant to s. 164.2(1) of the Criminal Code, the laptop computer with property tag #P641594 is to be forfeited to Her Majesty the Queen in Right of Ontario to be disposed of as the Attorney General for the Province of Ontario directs, or otherwise dealt with in accordance with the law.

[138] It is further ordered the following property shall be returned to the person lawfully entitled to possession of the property pursuant to s. 490 of the Criminal Code (but not earlier than 30 days after the date of this order): 1) iPhone, property tag #P641597; 2) thumb drive, property tag #P641595; 3) external hard drive, property tag #P641596; and 4) hard drive, property tag #P641593.

d) Victim Surcharge

[139] Given the date of the offence, the Victim Surcharge set out in s. 737(1) of the Criminal Code does not apply: R. v. Boudreault, 2018 SCC 58.

Surrender Order

[140] I order that Mr. Collier surrender himself into custody at 12:00 p.m. on Tuesday October 19, 2021, by presenting himself to the officers at the main entrance to 361 University Avenue. If he fails to surrender as directed, a warrant will be issued for his arrest.

Justice Heather McArthur

Released: October 15, 2021

Appendix “A”- Probation Terms of for Adam Collier

Statutory conditions:

1. Keep the peace and be of good behaviour.

2. Appear before the court when required to do so by the court.

3. Notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or supervisor of any change in employment or occupation.

Additional Terms:

4. Report by to a probation officer within two working days of your release from custody and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.

5. Live at a place approved of by the probation officer and do not change that address without obtaining the consent of the probation officer in advance.

6. Do not contact or communicate directly or indirectly, by any physical, electronic or other means, with anyone under the age of 18 years, unless in the presence of another person over the age of 21, who is aware of your convictions and is approved of in writing and in advance by the probation officer.

7. Do not be in the company of any persons under the age of 18 unless such person is a family member and you have the permissions of the lawful guardian of that child and it is approved of in writing and in advance by the probation officer.

8. Attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer.

9. You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

10. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

11. You shall not possess or use any computer or any other device that has Internet access, except:

a) with the advance written permission of the probation officer;

b) as required for purposes of your work;

c) as required for purposes of a recognized educational program;

d) under the supervision of someone over the age of 21, who is aware of your convictions, and approved of in writing, in advance, by your probation officer;

e) if required to comply with this or any other court order.

12. Do not possess or access child pornography.

COURT FILE NO.: CR-19-10000219-0000

DATE: 20211015

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

ADAM COLLIER

REASONS FOR SENTENCE

Justice Heather McArthur

Released: October 15, 2021