ONTARIO SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-18-30000602-0000

DATE: 20220118

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AAMALALL MOOTOO

Anna Gilmer, for the Crown

Aamalall Mootoo, Acting in person

Erin Dann, Amicus Curiae

HEARD at Toronto: November 25, 2021

Publication Ban

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way, pursuant to s. 486.4(1) of the Criminal Code, R.S.C., 1985, c. C-46.

REASONS FOR SENTENCE

DAVIES J.

A. OVERVIEW

1Mr. Mootoo has been found guilty of attempting to procure a child under the age of 18 to provide sexual services for money, possessing child pornography, possessing child pornography for the purpose of distribution, making sexually explicit material available to a person under the age of 16, luring a child under the age of 16, and inviting a person under the age of 16 to touch herself in a sexual manner.

2Mr. Mootoo was acquitted of sexual assault and sexual interference.

3I wrote lengthy reasons that contain my legal and factual findings in this case: R. v. Mootoo, 2021 ONSC 5984. I will not repeat those findings here. By way of overview only, I found that Mr. Mootoo and H.J. met online and communicated for a few days before they met in person on March 23, 2017. H.J. stayed at Mr. Mootoo’s apartment that night. They continued to communicate through various messaging applications for about a week after she stayed at Mr. Mootoo’s apartment. Mr. Mootoo sent H.J. several sexually explicit messages. He also sent sexually explicit pictures. Mr. Mootoo described in detail sexual activities he wanted to engage in with H.J. Mr. Mootoo told H.J. about his friends who engage in sexual activity with their own children. Mr. Mootoo also told H.J. that one of his friends “pimps out” his own daughter. Mr. Mootoo told H.J. he wanted her to engage in prostitution when she turned 16. He asked H.J. to send him sexually explicit pictures, but she refused. I found that Mr. Mootoo was attempting to procure H.J. into prostitution through his messages. I also found that Mr. Mootoo was luring H.J. for the purpose of facilitating a sexual offence.

4One of the pictures Mr. Mootoo sent H.J. was a close-up of two people having vaginal intercourse. The faces of the people were not visible in the picture. Mr. Mootoo told H.J. the picture was of his friend having intercourse with his 17-year-old daughter. This picture and the accompanying text message constitute child pornography. Copies of the sexually explicit pictures H.J. received were found on Mr. Mootoo’s phone after his arrest.

5A few days after H.J. stayed at Mr. Mootoo’s apartment, her sister recorded a telephone call between H.J. and Mr. Mootoo. During that call, Mr. Mootoo told H.J. to insert her finger in her vagina and anus. Mr. Mootoo talked about other sexual activities he wanted to engage in with H.J. He also told H.J. his friends would pay to have sex with her.

6The issue for me to decide now is what sentence is appropriate in this case. The Crown argues I should impose a five to seven years sentence. Mr. Mootoo takes the position the appropriate sentence is two to three years imprisonment.

7There are two preliminary issues I must decide before determining the fit sentence. First, I must consider the rule against multiple convictions and determine which findings of guilt, if any, should be stayed. Second, I must consider Mr. Mootoo’s constitutional challenge to the applicable mandatory minimum sentences, which the Crown says is moot.

8For the reasons that follow, I find that the possession of child pornography and making sexually explicit materials available to a child counts should be stayed. I also find that the mandatory minimum sentences are unconstitutional and inapplicable in this case. Finally, I find the appropriate sentence for Mr. Mootoo is three and a half years in custody.

B. Application of the Rule against Multiple Convictions for the same wrong

9Mr. Mootoo cannot be convicted of multiple offences arising from the same transaction or conduct where the elements of the offences are essentially the same: R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, at p. 745; R. v. Kinnear (2005), 2005 CanLII 21092 (ON CA), 198 C.C.C. (3d) 232 (Ont. C.A.), at para. 28. There must be both a factual and legal nexus between the charges before the rule against multiple convictions applies: Kinnear, at para. 32. A factual nexus exists when the charges arise out of the same act or transaction: Kinnear, at para. 33. A legal nexus exists if the offences involve the same legal wrong or create different ways of committing the same wrong: Kinnear, at para. 37, R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480, at pp. 499-503.

10Mr. Mootoo cannot be convicted of both possessing child pornography and possessing child pornography for the purpose of distribution when, as here, both charges relate to the same material. A conditional stay will be entered in relation to the possession of child pornography charge and Mr. Mootoo will be sentenced for the more serious offence of possessing child pornography for the purpose of distribution.

11Mr. Mootoo also cannot be convicted of both making sexually explicit material available to a person under the age of 16 and luring a child under the age of 16 in this case because Mr. Mootoo used the sexually explicit material to lure H.J.: R. v. Harris, 2017 ONSC 940, at paras. 24-34. Both offences are designed to prevent the same wrong, namely grooming young people in order to facilitate sexual offences. And here, the same conduct forms the basis of both counts -- Mr. Mootoo’s sexually explicit communications with H.J.

12Where the rule against multiple convictions applies, the less serious offence is conditionally stayed. Here, both making sexually explicit material available to a person under the age of 16 and luring a child under the age of 16 carry a maximum penalty of 14 years imprisonment when the Crown proceeds by indictment. However, they have different mandatory minimum sentences. Making sexually explicit material available to a person under the age of 16 has a six-month mandatory minimum sentence. Luring a child under the age of 16 has a one-year mandatory minimum sentence. I address the constitutionality of the applicable mandatory minimum sentences below. For the purpose of this analysis though, I am satisfied Parliament intended to signal that luring a child under the age of 16 is the more serious of the two offences by requiring a longer mandatory minimum sentence for that offence. A conditional stay will be entered in relation to the charge of making sexually explicit material available to a minor.

13The rule against multiple convictions does not apply to the offences of making sexually explicit material available to a person under the age of 16 and possessing child pornography for the purpose of distribution. “Sexually explicit material” is defined in s. 171.1(5) of the Criminal Code to exclude child pornography. The photograph that I found to be child pornography cannot support a finding of guilt for making sexually explicit material available to H.J. Mr. Mootoo was found guilty of that offence because he sent her other sexually explicit photographs to H.J. that do not constitute child pornography.

C. Mandatory Minimum sentences

14Mr. Mootoo is to be sentenced for attempting to procure a child under the age of 18 to offer or provide sexual services for money, possessing child pornography for the purpose of distribution, luring a child under the age of 16, and inviting a child to touch herself in a sexual manner. Parliament has enacted a mandatory minimum sentence for each of those offences. Procuring a child has a mandatory minimum sentence of five years imprisonment. Possession of child pornography for the purpose of distribution, luring a child under the age of 16, and invitation to sexual touching all have a mandatory minimum sentence of one year imprisonment because the Crown elected to proceed by indictment. In addition, any sentence I give Mr. Mootoo for possessing child pornography for the purpose of distribution must be served consecutively to the sentence he receives for the other offences: Criminal Code, s. 718.3(7)(a).

15Mr. Mootoo challenged the constitutionality of each mandatory minimum sentence. He did not challenge the constitutionality of the requirement that his sentence for possessing child pornography for the purpose of distribution be served consecutively to the other sentences.

16The Court of Appeal for Ontario recently struck down the mandatory minimum sentence for procuring a child to engage in prostitution so it no longer applies: R. v. Safieh, 2021 ONCA 643. Regardless, the mandatory minimum sentence for procuring a child likely would not have applied in this case because Mr. Mootoo was only convicted of attempting to procure H.J. A person convicted of attempting to commit a criminal offence with a maximum penalty of 14 years imprisonment (like procuring a child) is only liable for a maximum sentence of seven years, or one-half of the maximum for the completed offence: Criminal Code, s. 463(b). The British Columbia Court of Appeal has ruled that mandatory minimum sentences do not apply to people convicted of only attempting to commit an indictable offence; R. v. Beattie, 2015 BCCA 335, at para. 13; R. v. Wurt (1998), 1998 CanLII 5492 (BC CA), 125 C.C.C. (3d) 43 (B.C. C.A.).

17In light of the Court of Appeal’s decision in Safieh, I am left to decide whether the one-year mandatory minimum sentences for the remaining offences are constitutional. The Crown argues the constitutionality of the mandatory minimum sentences is moot because the appropriate sentence for Mr. Mootoo is longer than the mandatory minimum sentences in this case. I disagree. Because the sentence for possessing child pornography for the purpose of distribution must be served consecutively to any other sentence Mr. Mootoo receives, he is actually facing a mandatory minimum sentence of two years imprisonment, not one year. While it may be that the appropriate sentence is more than two years in custody, the constitutional challenge is not moot.

18Each of the mandatory minimum sentences in this case has been found to be unconstitutional by at least one of my fellow judges of the Ontario Superior Court of Justice.

19For example, two judges of this Court have found the mandatory minimum sentence for possessing child pornography for the purpose of distribution unconstitutional: R. v. Boodhoo, 2018 ONSC 7207, 51 C.R. (7th) 227; R. v. Walker, 2021 ONSC 837, 479 C.R.R. (2d) 28. One judge of this Court has also found the one-year mandatory minimum sentence for accessing child pornography unconstitutional: R. v. Rytel, 2019 ONSC 5541. Each of those decisions relied on the Court of Appeal’s decision in R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670, where the Court struck down the six-month mandatory minimum sentence for simple possession of child pornography. In John, the police found 50 unique images and 89 unique videos of child pornography on Mr. John’s computer. The Court found that although a six-month mandatory minimum sentence was not grossly disproportionate in Mr. John’s case, it could be grossly disproportionate when applied in a reasonable hypothetical situation. The Court found that a six-month sentence would be grossly disproportionate if an 18-year-old received and kept (but did not distribute further) a sexually explicit photograph from a friend of that friend’s 17-year-old girlfriend without her knowledge. In Boodhoo, the Court held that like the mandatory minimum for possession of child pornography, the mandatory minimum for possession of child pornography for the purpose of distribution is also unconstitutional because it does not allow trial judges to adequately account for the wide variety of circumstances in which the offence can be committed.

20Luring a child under the age of 16 has a mandatory minimum sentence of one year imprisonment when prosecuted by indictment, but only six months when prosecuted by summary conviction. Luring a child used to have a 90-day mandatory minimum sentence when prosecuted by summary conviction. In R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, the Supreme Court of Canada commented on the 90-day mandatory minimum sentence for luring a child. In that case, the Court allowed Mr. Morrison’s conviction appeal and ordered a new trial; therefore, Mr. Morrison’s sentence appeal was moot. Nevertheless, the Court commented that mandatory minimum sentence was “at the very least, constitutionally suspect” because the offence captures a very wide variety of conduct and circumstances: Morrison, at para. 146. The Court also noted that the fact that child luring has different mandatory minimum sentences depending on how the Crown proceeds raises concerns about the constitutionality of the mandatory minimum sentences. The Court reasoned that “by identifying a sentencing floor embodied by the summary conviction minimum sentence, Parliament has openly acknowledged that there will be circumstances in which the application of the higher mandatory minimum will be harsher than necessary”: Morrison, at para. 151.

21In R. v. Cowell, 2019 ONCA 972, 383 C.C.C. (3d) 131, the Court of Appeal was asked to rule the one year mandatory minimum sentence for luring a child. At trial in the Ontario Court of Justice, Mr. Cowell challenged the constitutionality of the mandatory minimum sentence. The trial judge found that the mandatory minimum sentence was not grossly disproportionate in Mr. Cowell’s case and imposed a one-year sentence. Mr. Cowell had been found to have communicated with an undercover officer posing as an adolescent girl. Mr. Cowell arranged to meet the undercover officer at a hotel for the purpose of paying her to have sex with him. Mr. Cowell appealed his conviction and sentence. The Court of Appeal dismissed Mr. Cowell’s appeal. The majority found that a one-year sentence was not grossly disproportionate for Mr. Cowell because of the high degree of moral blameworthiness of his conduct. The majority declined to rule on whether the mandatory minimum sentence would be unconstitutional when applied to other reasonably foreseeable scenarios because that issue was not argued at trial. The majority held that the constitutionality of the mandatory minimum based on reasonable hypotheticals should be decided in another case on a full record: Cowell at para. 126. However, Trotter J.A., dissenting on this point, would have found the mandatory minimum unconstitutional for the reasons articulated by the Supreme Court in Morrison.

22Since Cowell, two judges of this Court have ruled that the one-year mandatory minimum for luring a child is unconstitutional: R. v. C.D.R., 2020 ONSC 645; R. v. Faroughi, 2020 ONSC 780. The Quebec Court of Appeal has also struck down both mandatory minimum sentences for luring a child: R. c. Marchand, 2021 QCCA 1285; R. c. H.C., 2022 QCCA 16.

23Invitation to sexual touching also carries a one-year mandatory minimum when prosecuted by indictment and a 90-day mandatory minimum if the offence is prosecuted by summary conviction. The one-year mandatory minimum sentence was declared unconstitutional by a judge of this Court in R. v. Hussein, 2017 ONSC 4202. It was also found to be unconstitutional by the Alberta Court of Queen’s Bench in R. v. Reeves, 2020 ABQB 78, 453 C.R.R. (2d) 315. The sentencing judge in Reeves relied on the Alberta Court of Appeal’s decision in R. v. Ford, 2019 ABCA 87, 436 C.R.R. (2d) 323, in which the Court found the one-year mandatory minimum sentence for sexual interference unconstitutional. In Reeves, the Court held that if the mandatory minimum sentence for sexual interference is unconstitutional, the same mandatory minimum sentence for invitation to sexual touching must also be unconstitutional. Sexual interference requires proof that the defendant touched a child for a sexual purpose. Invitation to sexual touching does not require there to have been any actual touching. This means that invitation to sexual touching can be committed in circumstances that are less serious than sexual interference. The Court found that if the mandatory minimum is unconstitutional for the more serious offence, it must also be unconstitutional for the potentially less serious offence.

24I am not bound by the trial-level decisions that have found the mandatory minimum sentences unconstitutional. However, as a matter of judicial comity, I should follow earlier declarations of unconstitutionality unless I have a cogent reason to believe they are plainly wrong: R. v. Sullivan, 2020 ONCA 333, 151 O.R. (3d) 353, at para. 38. Mr. Mootoo argues that none of the decisions striking down the mandatory minimum sentences for possessing child pornography for the purpose of distribution, luring and invitation to sexual touching is plainly wrong and I should follow them.

25The Crown argues that all of the decisions on the mandatory minimum sentences are plainly wrong in light the Supreme Court of Canada’s 2020 decision in R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309. In Friesen, at para. 5, the Supreme Court held that sentences for sexual offences against children should increase to reflect the true wrongfulness of these offences and the profound and ongoing harm they cause. The Crown argues that the trial decisions striking down the mandatory minimum sentences (in which the Courts have found that a one-year sentence would be grossly disproportionate in some circumstances) are clearly wrong because they did not recognize the true harm caused by these offences.

26I agree with the Crown that the decision in Friesen sends a clear message to trial judges that sentences for sexual offences against children must increase to reflect the inherent gravity and harmfulness of those offences. The Court held that mid-single digit sentences should be the norm for sexual offences against children. The Court also held that upper-single digit and double-digit penitentiary terms are not reserved for rare or exceptional cases: Friesen, at para. 114. However, the Supreme Court expressly declined to set a starting point sentence for sexual offences against children: Friesen, at paras. 36-39. The Court in Friesen did not comment on any of the mandatory minimum sentences for sexual offences involving children.

27Even if a “substantial sentence” will be required in most cases of sexual violence against children, that does not mean a sentence of one-year or more will be proportionate in every case. It also does not mean that the trial judges who concluded the mandatory minimum sentences are unconstitutional failed to appreciate the inherent wrongfulness and harmfulness of sexual offences against children. Even after Friesen, there can be cases in which a one-year sentence will be grossly disproportionate. Importantly the Ontario Court of Appeal struck down the mandatory minimum sentence for procuring a child to engage in prostitution after the Supreme Court’s decision in Friesen. The Quebec Court of Appeal also struck down the mandatory minimum sentences for luring a child after Friesen. This supports my conclusion that the Supreme Court’s direction that sentences for sexual offences against children should generally increase does not mean the mandatory minimum sentence for those offences will be proportionate in all circumstances.

28I am not satisfied that any of the trial level decisions are plainly wrong and will, therefore, sentence Mr. Mootoo on the basis that the mandatory minimum sentences are all unconstitutional and inapplicable.

D. the appropriate sentencing range for sexual offences against children

29Every sentence imposed in Canada must be proportionate to the gravity of the offence and the degree of responsibility of the offender: Criminal Code, s. 718.1. Sexual offences against children are inherently serious. The sexual exploitation of children invades their personal autonomy, violates their sexual integrity, and compromises their dignity: Freisen, at paras. 51 and 77. Sexual offences against children can cause long-lasting emotional and psychological harm: Friesen, at para. 80; R. v. McCraw, 1991 CanLII 29 (SCC), [1991] 3 SCR 72, at p. 81. Even a single instance of sexual exploitation can permanently alter a child’s life: R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752, at para. 136. The sentence I impose must be truly commensurate with the seriousness of the offences Mr. Mootoo committed: Friesen, at para. 76. It must reflect both the wrongfulness and the harmfulness of his conduct: Friesen, at para. 75.

30In cases involving sexual offences against children the objectives of denunciation and deterrence must be given primary consideration: Criminal Code, s. 718.01; Friesen, at paras. 101–105. The sentence imposed in this case must clearly denounce and condemn Mr. Mootoo for encroaching on one of our most basic values that children are to be protected.

31The Crown and Amicus gave me several cases that discuss the sentencing range for sexual offences against children.

32In R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, the Court of Appeal considered the appropriate range for child luring. Mr. Woodward was convicted of several sexual offences, including sexual assault, sexual interference, and luring a child. The complainant was a 12-year-old girl he met online. Mr. Woodward was given a global sentence of six and a half years. The trial judge gave Mr. Woodward 18 months on the luring charge. On appeal, Mr. Woodward agreed the 18-month sentence was within the range for luring. Nonetheless, he argued the trial judge had unfairly inflated the sentence on both the luring charge and the sexual assault charge because he found that Mr. Woodward’s grooming behaviour was an aggravating factor on both. Mr. Woodward argued the same aggravating factor cannot be used to increase both sentences. The Court of Appeal rejected his sentence appeal. In doing so, the Court commented on the range for child luring. The Court first rejected the argument that the existing range for luring was 12 to 24 months. The Court also held that even if the existing range was 12 to 24 months it should be revised in light of Parliament’s decision to increase the maximum penalty for child luring from five years to 10 years. Ultimately the Court held that if there were evidence that luring was becoming “a pervasive social problem” sentences in the range three to five years would be more appropriate.

33In R. v. Moolla, 2021 ONSC 3702, Code J. found that the three-to-five-year range suggested in Woodward is now appropriate in child luring cases because Parliament has further increased the maximum sentence to 14 years and because the Supreme Court in Friesen has directed trial judges to increase sentences for sexual offences against children. Mr. Moolla was convicted after trial of luring a child, making sexually explicit materials available to a child, and breach of probation. Mr. Moolla placed an advertisement online seeking a sexual relationship with a girl between the ages of 16 and 19. An undercover officer posing as a 14-year-old responded to his ad. The officer and Mr. Moolla communicated for several days and arranged to meet. Code J. imposed a global sentence of three and a half years. The Court set out several aggravating factors including the fact that Mr. Moolla was on probation when the offences were committed, he believed he was communicating with someone who was only 14 years old, the messages he sent were graphic and involved elements of grooming, and he had arranged to meet the person with whom he was communicating.

34In R. v. J.G., 2021 ONSC 1095, the Court imposed a global sentence of four and a half years. J.G. was convicted of procuring a person under the age of 18 to engage in prostitution, advertising sexual services, obtaining a material benefit from prostitution, possession of child pornography, and distributing child pornography. J.G. set the complainant up in the sex trade and managed her sex work for about a month. He took sexually explicit photos of the complainant, which he used to advertise her services. He communicated with clients, negotiated the fees and taught the complainant about the sex trade. He also received 50 percent of her earnings. The complainant was only 17 years old. The Court found there were several aggravating factors including the degree of control J.G. exercised over the complainant and the fact that J.G. had an extensive criminal record (including an early conviction for procuring someone to engage in prostitution). The Court also noted several mitigating factors including the absence of any overt violence or threats, and J.G.’s experience with systemic racism throughout his life. The Court imposed a 4-year sentence on the procuring charge and six months on the child pornography charges.

35In R. v. Clement, [2021] O.J. No. 1829 (O.C.J.) the Court also imposed a sentence of four and a half years after Mr. Clement pleaded guilty to luring a child and possessing child pornography. Mr. Clement sent sexually explicit images to a 7-year-old child, including a video of him masturbating. Mr. Clement continued to communicate with the child after the child’s mother told him to stop and threatened to call the police. When the police searched Mr. Clement’s computer, they found a “sizeable” collection of child pornography. The Court found the offences were particularly serious given the age of the victim and Mr. Clement’s persistence in his communications. There were, however, several important mitigating factors. Most importantly, Mr. Clement pleaded guilty at an early stage in the proceedings. He expressed remorse. He was on strict bail conditions for a year during which he took treatment for addiction. The Court imposed a two-and-a-half-year sentence for the luring charge and twelve months for the child pornography charge to be served consecutively.

36In R. v. Collier, 2021 ONSC 6827, McArthur J. declined to follow Code J.’s ruling in R. v. Moolla that the new sentencing range in child luring cases should be three to five years imprisonment. Mr. Collier was convicted of luring, making sexually explicit material available, possession of child pornography, and making child pornography. Mr. Collier repeatedly communicated with and sent sexually explicit material to an undercover officer who was posing as a 14-year-old girl and six other people he believed to be underage. When the police searched Mr. Collier’s computer they found 19 images that constitute child pornography. McArthur J. accepted the Supreme Court’s direction in Friesen that sentences for luring must increase. But she found there is an “insufficient body of caselaw to properly evaluate where the new range for luring should fall”: Collier, at para. 99. In the end, McArthur J. imposed a global sentence of two years less a day followed by two years probation: Collier at paras. 120-122.

37Amicus provided me with several other cases that post-date Friesen where sentences below the range articulated in Woodward and Moolla have been imposed.

38For example, in R. v. A.B., 2020 ONSC 7691, the Court imposed a 15-month sentence. A.B. was convicted of two counts of sexual assault, two counts of luring a child, and two counts of sexual exploitation. There was one complainant, who was 16 years old at the time. The complainant and A.B.’s son were friends. A.B. convinced the complainant he worked in the modeling industry and could help get her started in modeling, which was her dream. A.B. convinced the complainant to send him photographs, including one of her topless. A.B. told the complainant to keep their communications secret. The Court found that A.B. lured the complainant for the purpose of sexual exploitation and for the purpose of making child pornography. A.B. was also convicted of sexual assault for kissing the complainant and touching her inner thigh. In terms of mitigating factors, A.B. expressed remorse for his conduct and expressed a willingness to take counseling. A.B. had no criminal record. Nonetheless, the Court found that the mitigating factors were “overwhelmed by the aggravating factors.” The Court found A.B.’s moral culpability was “at the higher end of the scale” because he abused a position of trust and took advantage of A.B.’s vulnerability.

39In R. v. D.B., [2021] O.J. No. 4381, the court imposed an 18-month sentence. D.B. was convicted of sexual assault, sexual interference and invitation to sexual touching. The complainant was D.B.’s 12-year-old niece. D.B. touched the complainant several times over and under her clothing. He also exposed himself to her and forced her to touch him. The Court noted several aggravating factors. First, D.B. abused a position of trust. Second, the abuse took place over the course of several visits. Third, the complainant was only 12 years old and the offences had a profound impact on her and her family. The Court fully considered the Supreme Court’s guidance in Friesen but found that an 18-month sentence would properly account for the aggravating factors and the inherent seriousness of sexual offences in that case.

40While these cases all offer some guidance on how I should exercise my discretion in fashioning a fit sentence in this case, sentencing remains a highly individualized exercise: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 43. Mr. Mootoo’s sentence must reflect the inherent harmfulness and wrongfulness of his conduct, as described by the Supreme Court in Friesen. But it must also be proportionate to the seriousness of his crimes and his moral blameworthiness having regard to the unique constellation of mitigating and aggravating factors in his case.

E. Aggravating and mitigating factors

41There are several features of this case that make this offence and Mr. Mootoo’s level of moral responsibility quite high. There are also factors that mitigate the seriousness of Mr. Mootoo’s conduct and reduce his moral blameworthiness. I must consider all the aggravating and mitigating factors when determining what sentence is just and appropriate in this case.

42There are also several aggravating factors that courts have identified in other cases that are not present here. Of course, the absence of an aggravating factor is not a mitigating factor: Friesen, at para. 150. But the absence of relevant aggravating factors is relevant to my assessment of the seriousness of Mr. Mootoo’s conduct and his moral blameworthiness. The absence of relevant aggravating factors can also help me compare Mr. Mootoo’s conduct against the conduct of the defendants in other sentencing decisions.

(a) Aggravating Factors

43There are six factors that make Mr. Mootoo’s offences particularly serious and increase his moral blameworthiness.

44First, H.J. was only 15 years old when she met Mr. Mootoo. Mr. Mootoo knew she was only 15 years old. The intentional sexual exploitation of any child is very morally blameworthy because children are vulnerable: Friesen, at para. 90. The fact that H.J. was an adolescent, not a very young child, does not detract from the seriousness of the offence or Mr. Mootoo’s moral blameworthiness: Friesen, at para. 136. Adolescent girls who are the victims of sexual offences by adult men experience have been found to higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy later in life: Friesen, at para. 136.

45The fact that H.J. appears to have willingly engaged with Mr. Mootoo online and in person does not mitigate the seriousness of his offences. H.J. was not capable of consenting to sexual activity with Mr. Mootoo. H.J. was only 15 years old and had the right to be free from sexual exploitation by Mr. Mootoo: Friesen, at para. 52.

46Second, Mr. Mootoo engaged in a process of grooming H.J. He sent her messages designed to normalize sexual relationships between adults and children. He sent other messages designed to normalize young people engaging in prostitution. Mr. Mootoo also tried to convince H.J. to hide his efforts to groom her from the people closest to her who could have protected her. He told her to keep their relationship secret. He told her to delete his messages. And he told her not to tell anyone about their conversations.

47Third, the images, messages and conversations between Mr. Mootoo and H.J. were very graphic. Mr. Mootoo talked in explicit detail about things he wanted H.J. to do. For example, he told H.J. in very graphic terms that he wanted her to engage in sexual activity with their future children and that he wanted their children to watch while they had sex. Mr. Mootoo also sent H.J. sexually explicit photographs. The image that forms the basis of the child pornography conviction is a close-up of two people engaged in vaginal intercourse. It was not obvious from the picture itself that there was a child involved, but Mr. Mootoo told H.J. the picture was of a 17-year-old having intercourse with her own father. The very graphic nature of the messages and images Mr. Mootoo sent makes these offences more serious.

48Fourth, Mr. Mootoo communicated with H.J. in an overtly sexual manner over several days. This was not an isolated incident. The Supreme Court has been clear that sexual offences against children that are committed on multiple occasions and for longer periods of time should attract higher sentences than isolated incidents: Friesen, at para. 133.

49Fifth, Mr. Mootoo’s offences have caused H.J. harm. In her Victim Impact Statement, H.J. wrote that these offences have had a significant emotional and psychological impact on her. She feels unsafe in her community. She experiences a lot of anxiety. She does not trust other people. She is constantly afraid of what could happen to her. She described how some of her friendships and relationships have been ruined by what happened to her. These are precisely the sorts of harm the Supreme Court of Canada described in Friesen. In fact, the Supreme Court noted the emotional and psychological harm caused by sexual offences against children are often more pervasive and permanent than any physical harm: Friesen, at para. 56. The Court also noted the ripple effects of childhood sexual violence that can damage other relationships, and cause children to lose trust in the other adults in their lives: Friesen, at para. 61.

50In addition to considering the actual harm H.J. has already experienced, I must also consider the potential harm that might flow from these offences in the future: Friesen, at para. 76. It is impossible to know the full extent of the harm these offences have caused H.J. She was only 19 years old when she testified. Trauma can manifest years after the offences are committed. In Friesen, at para. 81, the Court described some of the potential harms that can manifest in adulthood:

Sexual violence against children also causes several forms of long-term harm that manifest themselves during the victim’s adult years. First, children who are victims of sexual violence may have difficulty forming a loving, caring relationship with another adult as a result of the sexual violence. Second, children may be more prone to engage in sexual violence against children themselves when they reach adulthood. Third, children are more likely to struggle with substance abuse, mental illness, post-traumatic stress disorder, eating disorders, suicidal ideation, self-harming behaviour, anxiety, depression, sleep disturbances, anger, hostility, and poor self-esteem as adults. [citations omitted]

The fact that Mr. Mootoo’s conduct may continue to cause H.J. harm throughout her life adds to the seriousness of his offences: Friesen, at para. 84.

51Finally, Mr. Mootoo has a criminal record. He was found guilty of failing to comply with a recognizance in 2011 and received a suspended sentence and probation. He was also found guilty of assault and uttering a threat in 2012 for which he also received a suspended sentence and probation. While Mr. Mootoo has not been convicted of an offence involving the abuse of children in the past, he is also not a first offender.

(b) Absence of relevant aggravating factors

52There are several aggravating factors that courts have identified in other cases that are not present here, which is relevant to my assessment of the seriousness of Mr. Mootoo’s offences and his moral blameworthiness.

53First, Mr. Mootoo did not abuse a position of trust or authority in relation to H.J. If he had, that would have increased both the harm to H.J. and the gravity of the offence: Friesen, at para. 126.

54Second, Mr. Mootoo was acquitted of sexual assault and sexual interference. The absence of physical violence does not detract from the inherent seriousness of Mr. Mootoo’s offences: Friesen, at para. 82; R. v. Rafiq, 2015 ONCA 768, at paras 44-45. But Mr. Mootoo’s case would have been more serious had he also been convicted of offences involving physical acts that violated H.J.’s bodily and sexual integrity: Friesen, at paras. 138-145. Mr. Mootoo did tell H.J. to touch herself in a sexual manner during their recorded phone call. In other words, he encouraged H.J. to touch herself in a way that violated her physical and sexual integrity. Although H.J. told Mr. Mootoo during the call that she was touching herself, she testified that in reality she was just pretending to follow his instructions and did not touch herself. As a result, the degree of physical interference with H.J.’s sexual and bodily integrity is close to the low end of the spectrum.

55Third, there is no evidence that Mr. Mootoo is likely to reoffend. There was only one victim in this case. Mr. Mootoo has never been convicted of any offences involving children in the past. And there is no allegation he violated the terms of his bail. If there was evidence that Mr. Mootoo presents an increased risk of reoffending, I would have to place greater weight on the objective of separating him from society to protect other vulnerable children: Friesen, at paras. 122-124.

56Finally, Mr. Mootoo was found guilty of possessing only one image that constitutes child pornography. The image itself did not depict a child engaged in sexual activity. The photograph constitutes child pornography (as opposed to sexually explicit material) because Mr. Mootoo told H.J. it was a photograph of a 17-year-old engaged in sex. The police did not find any other child pornography when they searched Mr. Mootoo’s phone or his apartment. If Mr. Mootoo had been found to have a significant collection of child pornography that would have been an aggravating factor: Clement, at paras. 17 and 19.

(c) Mitigating Factors

57There are also several important mitigating factors I must consider.

58First, Mr. Mootoo did not successfully procure H.J. into prostitution. The maximum penalty for an attempt to procure a child to engage in prostitution is half the maximum penalty for the completed offence, or seven years imprisonment. Maximum sentences are one way that Parliament expresses its view on the seriousness of a particular offence. Parliament clearly sees attempted procuring as less serious, and deserving of a shorter sentence, than the completed offence.

59Second, Mr. Mootoo’s family continues to support him. His mother attended his trial several times. His father also attended his trial. Mr. Mootoo’s mother wrote a letter on his behalf. She explained that Mr. Mootoo has experienced significant hardship in his life. Mr. Mootoo’s family came to Canada when he was 10 years old. He lived with both his parents for a short time. When his parents separated, he lived with his father. Mr. Mootoo was placed in foster care because his father could not adequately care for him. At that time, his mother was experiencing mental health issues and homelessness and could not care for him either. Mr. Mootoo was in the foster care system for several years, which was a very difficult period in his life. Eventually, Mr. Mootoo’s mother received treatment and secured housing. Mr. Mootoo went back to live with her and has lived with her ever since. Mr. Mootoo’s mother continues to have significant health issues. She wrote that Mr. Mootoo is her primary caregiver and primary source of support.

60Third, the collateral consequences of these convictions could be devastating for Mr. Mootoo. He is not a Canadian citizen. He came to Canada from Guyana when he was 10 years old. He is now 35 years old. Mr. Mootoo will, in all likelihood, be deported to Guyana as a result of these convictions. I cannot use the likely immigration consequences to justify a disproportionately low sentence in this case: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 14. Nonetheless, it remains a relevant factor that the sentence I impose will have far-reaching implications for Mr. Mootoo beyond the time he is required to spend in prison.

61Fourth, Mr. Mootoo has been living under very restrictive bail conditions for more than four and a half years. He had to obey a curfew from 8:00 p.m. to 7:00 a.m. He was prohibited from possessing a cell phone or computer. And he was prohibited from accessing the Internet. The Crown was willing to consent to a variation of Mr. Mootoo’s bail a year ago to allow him to use a computer to review his disclosure. Mr. Mootoo refused to sign a new bail order. But even if Mr. Mootoo agreed to the amendment suggested by the Crown, he still would have been prohibited from using the Internet.

62Time spent under stringent bail conditions must be taken into account as a relevant mitigating circumstance on sentencing: R. v. Downes (2006), 2006 CanLII 3957 (ON CA), 79 O.R. (3d) 321 (C.A.), at para. 33. Some credit is routinely given when a defendant has been subject to a period of house arrest. But house arrest is only one form of stringent bail conditions that warrant consideration on sentencing. Prohibiting a defendant from possessing a cell phone or accessing the Internet is extremely restrictive, especially during the COVID-19 pandemic when so much of our lives have had to be conducted online. The Internet is an increasingly essential aspect of everyday life: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 54. The Internet is now often required for activities such as communicating with friends and family, shopping, banking, finding and maintaining employment, education, accessing the news and entertainment: R. v. Brar, 2016 ONCA 724, 134 O.R. (3d) 95, at para. 24. Prohibiting Mr. Mootoo from accessing the Internet deprived him of the ability to carry on important, lawful activities. I, therefore, find that Mr. Mootoo is entitled to some credit for his time bail.

63Finally, I have considered the fact that Mr. Mootoo will be serving at least part of his sentence during the height of the fourth wave of the COVID-19 pandemic. Despite the best efforts of the correctional authorities, Mr. Mootoo will very likely experience greater restrictions while in custody as a result of the pandemic and will be exposed to the unavoidable health risks associated with living in a congregate setting. This does not diminish the seriousness of his conduct or his moral blameworthiness. And I cannot use these collateral consequences to justify what would otherwise be a disproportionate sentence: R. v. Suter, 2018 SCC 34, at para. 56. Nonetheless, it is relevant that the conditions of Mr. Mootoo’s detention will likely be more restrictive than they would have been if he was not sentenced during the pandemic: R. v. Morgan, 2020 ONCA 279.

(d) Conclusion

64Having balanced all the mitigating and aggravating factors, I find that a global sentence of three and a half years imprisonment is fit and appropriate in this case.

65In my view, the facts of this case are more serious than Moolla because in addition to luring H.J. and making explicit material available to her (the charges for which Mr. Moolla was convicted), Mr. Mootoo also attempted to procure her into prostitution and sent her child pornography. Mr. Mootoo’s case is also more serious because his offences targeted an actual child, not just an undercover officer posing as a child. Unlike in Moolla, Mr. Mootoo’s offences caused actual harm to H.J., not just a risk of harm.

66On the other hand, I am also of the view that Mr. Mootoo’s offences are somewhat less serious than J.G. In that case, J.G. succeeded in procuring a young person to engage in prostitution. He also took pornographic pictures of the complainant, which he used to advertise her services and distributed to potential clients. J.G. also exercised extensive control over the complainant for close to a month. In other words, J.G.’s conduct persisted for longer than Mr. Mootoo’s.

67Using Moolla and J.G. as a guide, I find that Mr. Mootoo’s sentence should be longer than three and a half years but shorter than four and a half years. I must also consider the impact of Mr. Mootoo’s restrictive bail on the length of his sentence. There is no mathematical formula for calculating the extent to which stringent bail conditions will mitigate a sentence. The amount of credit to be given will depend on a number of factors including the length of time Mr. Mootoo spent on bail, the stringency of Mr. Mootoo’s bail conditions, and the impact of the conditions on Mr. Mootoo’s liberty and his ability to carry on normal activities: Downes, at para. 37; R. v. Joseph, 2020 ONCA 733, 153 O.R. (3d) 145, at para. 108. While Mr. Mootoo was not subject to house arrest bail, he was subject to very stringent conditions for several years that significantly interfered with his ability to carry on ordinary, lawful activities. Were it not for Mr. Mootoo’s restrictive bail, I would have imposed a sentence of four years imprisonment. However, I find that he is entitled to significant mitigation of his sentence, in the range of six months, for the time he spent living under strict bail conditions. I, therefore, find a global sentence of three and a half years is appropriate.

F. Community impact statement

68The Crown filed a lengthy Community Impact Statement written by the Canadian Centre for Child Protection (C3P) on behalf of “all Canadian children and families.” C3P is a non-profit organization that provides services aimed at reducing the sexual exploitation and abuse of children. The mission of C3P is to reduce the online sexual exploitation of children and to advocate for increased awareness about issues related to the online sexual exploitation of children. The Report notes that there has been an increase in the number of reported incidents of luring and making explicit sexual material available to children since 2016. The Report also describes the harms online sexual offences can cause individual victims. Finally, the report describes the impact these offences can have on the victim’s family.

69Section 722.2(1) of the Criminal Code says that I must consider “any statement made by an individual on a community’s behalf” that describes “the harm or loss suffered by the community as the result of the commission of the offence and the impact of the offence on the community.”

70I have several concerns about the admissibility of the Community Impact Statement prepared by the Canadian Centre for Child Protection.

71First, the report does not address the impact of Mr. Mootoo’s offences on the broader community. While styled as a Community Impact Statement, the report primarily speaks to the potential impact of online sexual offences on individual victims and their families, with extensive reference to victim impact statements filed in other Canadian cases. The report describes common emotional impacts such as an inability to trust others, anxiety, self-blame, loss of self-esteem, shame, embarrassment, anger and depression. The report explains how sexual offences against children can interfere with healthy relationships and with healthy sexual development. The report describes how some children withdraw from online activities after being the victim of an online offence. The report notes how easily images and videos taken of child victims can be shared online. In my view, a Community Impact Statement, as distinct from a Victim Impact Statement, is intended to describe the impact of a particular criminal offence beyond the already-recognized harm to individual victims. It should focus on how the offence in question affected a particular, identifiable community: R. v. Denny, 2016 NSSC 76, 371 N.S.R. (2d) 236, at para. 122. The report from the Canadian Centre for Child Protection does not do that.

72Second, the report from the Canadian Centre for Child Protection is essentially an expert report on the extent and seriousness of online violence against children. The Community Impact Statement is written by a lawyer. It summarizes what Canadian courts, including the Supreme Court of Canada, have said about the seriousness of these offences and the harm they can cause. It also summarizes data collected by the C3P through its tip line and its work with victims of sexual violence. It expresses the opinion that the harms described in individual victim impact statements is consistent with data they have collected from other victims of online sexual offences. Even with the relaxed rules of evidence at sentencing hearings, it seems unfair to allow the Crown to file expert evidence in the form of a Community Impact Statement without giving the defendant an opportunity to test the content of the report through cross-examination.

73Despite my concerns, I do not need to rule on the admissibility of the Community Impact Statement in this case. In Friesen, the Supreme Court of Canada provided clear guidance about how trial judges should assess the seriousness of sexual offences against children. Trial judges must accept the inherent wrongfulness and inherent harmfulness of sexual offences against children, which I have done. Trial judges must impose sentences that reflect the actual and potential harm these offences cause. The Supreme Court cataloged the various types of harm trial judges must consider. The Supreme Court’s ruling in Friesen covers all the harms identified by C3P in its report. As a result, the Community Impact Statement does not add to my assessment of the appropriate sentence in this case.

G. SEntence and ancillary orders

74Mr. Mootoo is sentenced to three and a half years in custody to be allocated as follows:

• Attempting to procure a child under the age of 18 to provide sexual services for money (count #3) – three years in custody

• Luring a child under the age of 16 (count #5) – three years in custody to be served concurrently

• Invitation to sexual touching (count #8) – two years in custody to be served concurrently

• Possession of child pornography for the purpose of distribution (count #7) – six months in custody to be served consecutively

75Mr. Mootoo spent seven days in custody awaiting bail following his arrest in April 2017. He is entitled to one and a half days credit for each day he spent in detention. Eleven days will, therefore, be deducted from his sentence on counts 7.

76Mr. Mootoo is required to comply with the Sex Offender Registry Act for life: Criminal Code, ss. 490.012(1) and 490.013(2.1).

77Mr. Mootoo is required to provide a sample of a bodily substance for the purpose of forensic DNA analysis: Criminal Code, s. 487.051(1).

78Mr. Mootoo is prohibited from communicating directly or indirectly by any means with H.J. while he is serving his sentence: Criminal Code, s. 743.21.

79For a period of 10 years following his release from custody, Mr. Mootoo is prohibited from seeking, obtaining or continuing employment, whether paid or unpaid, that involves being in a position of trust or authority towards anyone under the age of 16. Mr. Mootoo is also prohibited from seeking, obtaining or continuing any volunteer position in which he would be in a position of trust or authority over anyone under the age of 16: Criminal Code, s. 161(1)(b).

80The Crown also seeks an order prohibiting Mr. Mootoo from using the Internet or other digital networks except as authorized by the Court. Mr. Mootoo used several messaging applications to commit these offences. It is, therefore, appropriate to impose some conditions on his use of the Internet in future to reduce the likelihood he will re-offend. But a complete ban on the use of the Internet would be unreasonable because so many daily activities require the use of the Internet. I, therefore, order that for a period of 10 years following his release from custody, Mr. Mootoo will not use a computer system as defined in s. 342.1(2) of the Criminal Code to communicate with any person under the age of 16, except for those in his immediate family. Mr. Mootoo will also not use the Internet or any communication device to access or distribute any content that violates the law.

81The Crown also asked for an order prohibiting Mr. Mootoo from having any contact with a person under the age of 16 unless Mr. Mootoo was under the supervision of a person approved by the Court. I am not prepared to make that order. The Crown is, quite properly, concerned about protecting other children from Mr. Mootoo. However, preventing Mr. Mootoo from having even incidental contact with people under the age of 16, is not reasonable. First, Mr. Mootoo has a child. He cannot be prohibited from having contact with his own child or interacting with other children in his family (or his child’s extended family). Second, an order prohibiting him from having any contact with children under the age of 16 would restrict his liberty in unnecessary and impractical ways. It would prevent him from living in an apartment building where families live. It would prevent him from working in any place where young people might be, such as a grocery store or restaurant. It would prevent him from shopping in stores or eating in restaurants where young people work. It would prevent him from going to a public library where young people might be. In my view, an order prohibiting contact with anyone under the age of 16 would hinder Mr. Mootoo’s reintegration and rehabilitation, and would be unreasonable.

82During Mr. Mootoo’s trial, I received information that Mr. Mootoo has some mental health issues. He told me he had an appointment with a psychiatrist in early November. He also told me about challenges he had accessing treatment. Mr. Mootoo’s mother also wrote in her letter that she is worried about Mr. Mootoo’s mental health. I never received a medical report about Mr. Mootoo or information about a formal diagnosis having been made. Nonetheless, I recommend that Mr. Mootoo be assessed by a mental health practitioner as soon as possible after his incarceration. I also recommend that Mr. Mootoo be offered appropriate mental health services during his sentence. It will, of course, be for Mr. Mootoo to decide whether he wants to accept the services offered and whether he consents to any treatment recommended.

Davies J.

Reasons Released: January 18, 2022

Edited Written Reasons Released: January 24, 2022