COURT FILE NO.: CRIMJ(P) 393/20 DATE: 20230112
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING Mr. R. Raeesi, for the Crown
- and -
STEVE KAVANAGH Mr. M. Huberman, for the Accused
HEARD: October 27 and 28, 2022
REASONS FOR SENTENCE
Stribopoulos J.:
Introduction
[1] A jury found Mr. Kavanagh guilty of child luring and making sexually explicit material available to a child, contrary, respectively, to sections 172.1(1)(b) and 171.1(1)(b) of the Criminal Code, R.S.C., 1985, c. C-46.
[2] As the judge who presided over Mr. Kavanagh’s trial, I must now sentence him for the offences for which the jury found him guilty.
[3] These reasons begin by detailing the circumstances of Mr. Kavanagh’s offences. Then, they canvass Mr. Kavanagh’s background and circumstances since his arrest. After that, these reasons summarize the parties’ positions. Finally, they consider the governing principles, including the range of sentences for these offences, before addressing the appropriate sentence for Mr. Kavanagh.
I. Circumstances of the Offences
[4] Over a nearly four-month period, beginning in March and ending in June 2019, Mr. Kavanagh repeatedly communicated with "Eve" using Kik, an app that facilitates instant messaging over the Internet. To Mr. Kavanagh, "Eve" was represented to be a 15-year-old girl who lived in New Jersey.
[5] Mr. Kavanagh began communicating with “Eve” after responding to a post on UnderNet, an online messaging platform. That post, purportedly by the girl’s "father," consisted of him essentially offering his 15-year-old daughter's sexual services for sale. Mr. Kavanagh responded to that post, which led to him exchanging emails with the “father.” The “father” soon provided “Eve's” username on Kik so that Mr. Kavanagh could communicate with her directly. After that, Mr. Kavanagh began a lengthy correspondence with “Eve” over Kik.
[6] Thankfully, "Eve" and her "father" were personas created by law enforcement officials in the United States. As a result, although he believed he was communicating with a child, Mr. Kavanagh was only ever communicating with two police officers who, at different points, each played the role of a 15-year-old girl during the months-long police investigation.
[7] Mr. Kavanagh’s numerous communications with “Eve” were often conversational and addressed various mundane topics. However, their focus quickly and invariably shifted, with Mr. Kavanagh taking the lead in moving their exchanges in a sexual direction. Additionally, at different points, Mr. Kavanagh shared sexually explicit materials with “Eve,” including photos of his erect penis and numerous adult pornographic images and videos.
[8] Although Mr. Kavanagh pressed “Eve” to share pictures of herself, including intimate photos, the police officers he communicated with understandably provided various excuses for never acceding to those requests.
[9] Given how the charges were particularized, through its verdicts, the jury accepted that at some point during his exchange of communications with “Eve” and his sharing of sexually explicit materials with her, Mr. Kavanagh's purpose in doing so was to facilitate sexual contact between them.
[10] However, it bears mentioning that although there was some discussion of an in-person meeting, concrete plans for such a meeting were never, in fact, finalized. Instead, as their communications progressed and “Eve” continued pressing him to meet, Mr. Kavanagh kept deferring an in-person meeting. On a few occasions, he offered various excuses for why it was not feasible for him to travel to New Jersey for them to meet at different times. Finally, their communications ended when Mr. Kavanagh stopped responding to “Eve’s” messages.
[11] Eventually, the American law enforcement officials who communicated with Mr. Kavanagh during their investigation contacted their Canadian counterparts, who arrested and charged Mr. Kavanagh in early February 2020.
II. Mr. Kavanagh’s Circumstances
[12] Mr. Kavanagh is 44 years of age. He does not have a criminal record. These offences represent his first involvement with the criminal justice system.
[13] Mr. Kavanagh was born in Ontario and grew up in Port Elgin with his parents and siblings (two sisters and a brother). Unfortunately, Mr. Kavanagh had a less-than-idyllic childhood, mainly due to his father's alcoholism. Growing up, he was subjected to physical, verbal, and emotional abuse by his father.
[14] In May 2021, Mr. Kavanagh’s father passed away from cancer. Mr. Kavanagh has a close relationship with his mother, who is now 76. Sadly, his mother is very ill and has been in and out of the hospital in recent years. Between him and his brother, Mr. Kavanagh has worked hard to provide his mother with the support she requires to ensure she remains in her home as much as possible in the time she has left.
[15] After graduating from high school, Mr. Kavanagh completed two different college programs relating to computers and technology. Those qualifications enabled Mr. Kavanagh to enjoy mostly uninterrupted gainful employment throughout his adult life. He has continued to work in that field; Mr. Kavanagh has been in his most recent position since March 2022.
[16] At the age of 12, Mr. Kavanagh became an air cadet and remained one until he aged out of that program. Since then, he has been a Canadian Armed Forces Reserve Force member, primarily involved with the Cadet Program. Before his arrest in February 2020, Mr. Kavanagh had reached the rank of acting major.
[17] As a result of his arrest and charges, the Canadian Armed Forces suspended Mr. Kavanagh from active duty. There is no dispute between the parties that Mr. Kavanagh’s dishonourable discharge from the military will inevitably follow after the court sentences him for his offences. (A representative from the Canadian Armed Forces was present at the sentencing hearing to observe the proceedings, and he confirmed as much.)
[18] Following his arrest, a local newspaper, the Brampton Guardian, published a story about Mr. Kavanagh’s arrest and charges. The report, which is still available online, included a photograph of Mr. Kavanagh.
[19] Because of the newspaper story, Mr. Kavanagh’s employer learned of his arrest and the charges and fired him. For the same reason, other residents in the building where he lived also became aware of the allegations, and one of them began to harass Mr. Kavanagh. The situation with that resident became sufficiently intolerable that Mr. Kavanagh had to relocate to a new residence.
[20] Mr. Kavanagh has been in a committed relationship with his common-law partner since 2009. They began living together in 2010. Despite his arrest and charges, Mr. Kavanagh’s partner has remained with him and continues to support him. She was present throughout the trial and during the sentencing hearing.
[21] At the sentencing hearing, numerous letters from Mr. Kavanagh’s immediate and extended family and his wide circle of friends were filed. Everyone who wrote a letter reported being shocked to learn of the charges. Each maintained that the crimes are entirely out of character with the person they know Mr. Kavanagh to be, describing him, variously, as kind, generous, caring, compassionate and honourable.
[22] In an affidavit filed at the sentencing hearing, Mr. Kavanagh detailed his personal circumstances. That included sharing with the court an aspect of his background that only a few other people know about: the fact that he was sexually abused by a neighbour when he was only five or six years old. Mr. Kavanagh deposed that he spent much of his life attempting to repress memories of that childhood trauma.
[23] In 2014, Mr. Kavanagh finally sought help for the long-lasting psychological impact of his sexual abuse as a child. He attended a 10-week outpatient program in 2014, after which he attended counselling sessions with a psychiatrist until 2016. At that time, he was formally diagnosed with Post-Traumatic Stress Disorder (PTSD), anxiety, and depression. Unfortunately, he eventually discontinued counselling because he could no longer afford it.
[24] The mental health issues that first led Mr. Kavanagh to seek treatment persist. In 2018, Mr. Kavanagh sought assistance from his family doctor, who prescribed medication for anxiety and depression, which he continues to take.
[25] Also filed at the sentencing hearing was a Psychological Risk Assessment report prepared by Dr. Giorgio Ilacqua, a forensic psychologist. Dr. Ilacqua assessed Mr. Kavanagh, which included administering a battery of psychometric tests.
[26] According to Dr. Ilacqua, Mr. Kavanagh presents with “severe anxiety and depressive symptomatology.” Notably, Dr. Ilacqua concluded that Mr. Kavanagh poses “a low risk” either for “future legal involvement” or “future sexual violence offences and behaviours.” In his opinion, “with appropriate monitoring, structure, and interventions,” Mr. Kavanagh's “risk could remain low.” However, while noting that Mr. Kavanagh “accepts the seriousness of the current situation,” Dr. Ilacqua observed that he still presents “but a rudimentary insight into his behaviour leading to the current situation.”
[27] In his affidavit, filed at the sentencing hearing, Mr. Kavanagh attempted to explain the behaviour that led to his arrest and prosecution. He deposes that, at the time, “[he] was incredibly depressed and lonely” while acknowledging that those feelings “did not cause [him] to do the things [he] did.” And he opines that “there must be something deeper that caused [him] to act the way [he] did,” while also acknowledging that “[t]he conversations [he] had went beyond just talking to someone and it crossed a line.” Finally, Mr. Kavanagh offered an apology “for [his] inappropriate behaviour.”
[28] These comments by Mr. Kavanagh are in keeping with his testimony at trial. For example, as was the case during his evidence, Mr. Kavanagh still does not appear to acknowledge that he communicated with a person he believed to be a 15-year-old girl or that his purpose in doing so was, at least in part, to facilitate sexual contact with her. His failure to do so bears out Dr. Ilacqua’s observation that Mr. Kavanagh only has “rudimentary insight” into his criminal behaviour.
III. Positions of the Parties
[29] There is no dispute between the parties concerning the various ancillary orders the court must make in sentencing Mr. Kavanagh for his offences.
[30] First, the court must order Mr. Kavanagh to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10 for 20 years because the offences he committed are each designated under section 490.011: see Criminal Code, ss. 490.011, 490.012(1), 490.013(2)(b). See also R. v. Ndhlovu, 2022 SCC 38, declaring ss. 490.012 and 490.013(2.1) unconstitutional, but suspending the declaration in respect of s. 490.012 for one year and applying it prospectively only, while for s. 490.013(2.1), giving the declaration immediate and retroactive effect.
[31] Second, the court must make a DNA order because each offence is a primary designated offence: see Criminal Code, ss. 487.04, 487.051(1).
[32] Third, given his offences, Mr. Kavanagh did not contest the Crown’s request that the court issue an order under section 161(1) of the Criminal Code. However, the Crown only requested an order for ten years under subsections (b) and (c) and five to eight years under subsection (d).
[33] In contrast, the Crown and defence disagree over the carceral component of the sentence the court should impose.
[34] On behalf of the Crown, Mr. Raeesi submits that the range of sentences for these offences is between three and five years of imprisonment. While Mr. Raeesi concedes that there are mitigating factors in this case, including the absence of a criminal record, a low risk to reoffend, the presence of family and social supports and a degree of insight, he submits that there are also several significant aggravating factors.
[35] Mr. Raeesi emphasizes the duration and frequency of the communications. In addition, he notes the extent of the grooming behaviour involved. Further, he argues that Mr. Kavanagh abused his position with the Canadian Armed Forces in committing the offences. And finally, Mr. Kavanagh invited “Eve” to send him intimate photos, essentially counselling the commission of the crime of creating child pornography.
[36] Mindful of the sentencing range for these offences, while taking account of the mitigating and aggravating factors, Mr. Raeesi submits that a fit sentence is 30 months’ imprisonment, just slightly below what he maintains is the low end of the sentencing range.
[37] In contrast, on behalf of Mr. Kavanagh, Mr. Huberman disputes that the range of sentences for these offences is as high as the Crown claims. Additionally, he emphasizes the same mitigating factors that the Crown acknowledges. Finally, although Mr. Huberman conceded some of the aggravating factors identified by the Crown, like the duration and frequency of the communications and the extent of the grooming behaviour involved, he disputes that there is any basis to suggest that Mr. Kavanagh exploited his position with the Canadian Armed Forces to commit his offences.
[38] Further, Mr. Huberman emphasizes what he says are the significant collateral consequences Mr. Kavanagh suffered because of being arrested and charged. Specifically, his long career with the Canadian Armed Forces, something Mr. Kavanagh deeply cherished, has come to an unceremonious end. Further, Mr. Kavanagh was fired from his job and forced to change residences because of his arrest and the charges.
[39] Ultimately, Mr. Huberman emphasizes the mitigating factors in this case and the significant collateral consequences for Mr. Kavanagh, along with the 30 months he spent on bail without incident, in arguing for a conditional sentence of two years less a day followed by a probation order for three years.
[40] Mr. Huberman submits that with sufficiently restrictive conditions, especially remembering the significant collateral consequences already suffered by Mr. Kavanagh, a conditional sentence can more than adequately address the sentencing objectives of denunciation and deterrence. Given all the circumstances, Mr. Huberman submits that a conditional sentence would be appropriate.
[41] Alternatively, should the court conclude that the imposition of a conditional sentence would not be in keeping with the fundamental purpose and principles of sentencing, Mr. Huberman submits that a much shorter sentence of imprisonment than what the Crown urged is appropriate. He argues that a sentence of 14 months’ imprisonment is proportionate to the gravity of these offences and Mr. Kavanagh’s degree of responsibility in their commission.
IV. The Governing Principles and the Appropriate Sentence
[42] Sentencing is necessarily highly discretionary; there is no ready-made formula that judges can follow to identify the correct sentence. Instead, a sentencing judge must consider the purpose and objectives of sentencing while properly accounting for the various sentencing principles to arrive at the appropriate sentence for a particular offender given the specific circumstances of their offence.
The purpose, objectives, and principles of sentencing
[43] Sentencing judges must remember the fundamental purpose of sentencing, which Parliament has identified as protecting society and contributing “to respect for the law and the maintenance of a just, peaceful and safe society”: Criminal Code, s. 718. Achieving that purpose requires the court to impose “just sanctions” that reflect one or more traditional sentencing objectives: s. 718. These include denunciation, general and specific deterrence, separation of offenders from society, rehabilitation, reparation to victims, promoting a sense of responsibility in offenders, and acknowledging the harm done to victims and the community: see ss. 718(a)-(f).
[44] Ultimately, the court must respect 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”: s. 718.1. In other words, the sentence must fit both the seriousness of the crime and the offender’s level of moral blameworthiness in its commission: see R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 36-37; R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at paras. 40-43; R. v. Priest (1996), 30 O.R. (3d) 538 (C.A.), at para. 29.
[45] The principle of parity lights the way toward arriving at a proportionate sentence. That is because proportionality is a function of the circumstances of the offence and offender, compared to sentences previously imposed on similar offenders for similar offences committed in similar circumstances. As the Supreme Court has explained: “Individualization and parity of sentences must be reconciled for a sentence to be proportionate": R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53, citing Criminal Code ss. 718.2(a) and (b). Consequently, “parity is an expression of proportionality”: R. v. Friesen, 2020 SCC 9, 391 C.C.C. (3d) 309, at para. 32; see also paras. 30-33 more generally.
[46] Ultimately, proportionality “has a restraining function” because it helps “guarantee that a sentence is individualized, just and appropriate: ” R. v. Bissonnette, 2022 SCC 23, 80 C.R. (7th) 127, at para. 51.
Sentencing in cases of luring or making sexually explicit material available
[47] The vulnerability of children when they go online is readily apparent. The Internet, especially social media, provides a far too easy point of contact between children, the most vulnerable members of our society, and those bent on exploiting them as objects of their sexual gratification. Unfortunately, it took Parliament time to recognize that those with a sexual interest in children would use the Internet and the anonymity it affords to gain access to their potential victims.
[48] To help safeguard children when they venture online, Parliament eventually enacted the offences Mr. Kavanagh committed. It first created the offence of child luring in 2002: see Criminal Law Amendment Act, 2001, S.C. 2002, c. 13, s. 8. And it supplemented that protection in 2012 by creating the offence of making sexually explicit material available to a child: see Safe Streets and Communities Act, S.C. 2012, c. 1, s. 21.
[49] Early in the history of the child luring offence, the Court of Appeal for Ontario recognized that when it came to sentencing offenders for that offence, the preeminent goal must be to safeguard children, who are indefatigable Internet users, from those predators who would abuse this technology to lure them into situations where they can be sexually exploited and abused. And because of that, in most cases, “the sentencing goals of denunciation and deterrence will require a sentence of institutional incarceration ”: R. v. Folino (2005), 77 O.R. (3d) 641 (ONCA), at para. 25 (emphasis added); see also R. v. Jarvis (2006) O.A.C. 189 (C.A.), at paras. 23-24; R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 49; R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 76.
[50] In Jarvis, which like this case, involved an offender who engaged in online communications with an undercover police officer posing as a teenage girl, Rosenberg J.A., writing for the Court of Appeal, made the following observation at para. 31:
The decisions of trial courts that were placed before us suggest that the range of sentence for this offence generally lies between twelve months and two years. Circumstances such as possession of child pornography or a record for other child sexual offences will require a sentence at the upper end of this range. Obviously, if the offender has previously committed the same offence, an even longer sentence may be required.
[Emphasis added]
[51] Four years later, the Court of Appeal appeared to reaffirm the sentencing range it recognized in Jarvis for the offence of child luring: see R. v. El-Jamel, 2010 ONCA 575, 261 C.C.C. (3d) 293, at para. 9.
[52] The following year, in Woodward, the Court of Appeal again dealt with an offender who used the Internet to prey upon a child. Unlike Mr. Jarvis or Mr. Kavanagh, Mr. Woodward did not commit his offences by communicating with an undercover police officer who assumed the role of a child. Instead, he exchanged messages with an actual 12-year-old girl. Mr. Woodward offered the girl money in exchange for sex. He ultimately met with the victim and engaged in sexual acts with her, including intercourse. Therefore, he was also convicted and sentenced for sexual interference; invitation to sexual touching; attempting to obtain, for consideration, the sexual services of a person under 18 years of age; and sexual assault.
[53] Mr. Woodward appealed against a global sentence of six-and-a-half years of imprisonment, which included an 18-month consecutive sentence for the offence of luring a child, arguing that it was excessive. In Woodward, writing for the Court, Moldaver J.A. (as he then was), suggested that the sentencing range Jarvis seemed to establish for the child luring offence needed to be adjusted upward, writing at para. 58:
Even if Jarvis did purport to set a range of 12 to 24 months for the offence of luring, that range needs to be revised given the 2007 amendment in which Parliament doubled the maximum punishment from five years to ten years. Moreover, if it is shown through the introduction of properly tendered evidence that the offence of luring has become a pervasive social problem, I believe that 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.
[54] Ultimately, given the gravity of Mr. Woodward’s offences, the Court of Appeal dismissed his sentence appeal. It concluded that the five-year sentence he received for sexual assault; sexual interference; invitation to sexual touching; attempting to obtain, for consideration, the sexual services of a person under eighteen years of age; and sexual assault “was lenient”: Woodward, at para. 75. Further, it concluded that: “The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive.”: Woodward, at para. 75 (emphasis added).
[55] As noted, in 2012, the year after the Court of Appeal’s decision in Woodward, Parliament created the additional offence of making sexually explicit material available to a child. At the same time, Parliament added minimum punishments for the child luring offence when prosecuted summarily or by indictment: see Safe Streets and Communities Act, ss. 21, 22(2). Then, a few years later, it increased the minimum and maximum sentences for both offences: see Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, ss. 10, 11.
[56] As a result of these amendments, for the offence of child luring, when prosecuted by indictment, the Criminal Code now prescribes a minimum sentence of one-year imprisonment and a maximum sentence of 14 years imprisonment: s. 172.1(2)(a). And for the offence of making sexually explicit material available to a child, where the Crown proceeds by indictment, the Criminal Code now prescribes a minimum sentence of six months imprisonment and a maximum sentence of 14 years imprisonment: s. 171.1(2)(a).
[57] In R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, a majority of the Supreme Court declined to decide the constitutional validity of the mandatory one-year minimum sentence for child luring under section 172.1(2)(a) when the Crown elects to proceed by indictment. A majority of the Court of Appeal for Ontario did the same in R. v. Cowell, 2019 ONCA 972, 383 C.C.C. (3d) 131, leave to appeal refused [2020] S.C.C.A. No. 54 (Trotter J.A., in concurring reasons, would have declared the provision unconstitutional).
[58] Since then, however, a judge of this court has declared the mandatory minimum sentences for child luring (one-year) and making sexually explicit material available to a child (six-months), when prosecuted by indictment, unconstitutional after concluding that they were inconsistent with section 12 of the Canadian Charter of Rights and Freedoms and not justified under section 1: see R. v. C.D.R., 2020 ONSC 645. Another judge of this court came to the same conclusion concerning the minimum sentence for child luring under section 172.1(2)(a): see R. v. Faroughi, 2020 ONSC 780.
[59] Because C.D.R. and Faroughi are decisions of judges of coordinate jurisdiction, except if an application of the Hansard Spruce Mills’ criteria required otherwise, this court is bound to follow them: see R. v. Sullivan, 2022 SCC 19, 413 C.C.C. (3d) 447, at paras. 73-80; Re Hansard Spruce Mills, [1954] 4 D.L.R. 590 (B.C.S.C.), at p. 592. The Crown, in this case, did not argue that this court should decline to follow C.D.R. and Faroughi.
[60] Although the crimes for which the jury found Mr. Kavanagh guilty no longer carry mandatory minimum sentences, that in no way detracts from the gravity of his offences. As Moldaver J. observed on behalf of the Supreme Court in Morrison: "Child luring is a serious offence that targets one of the most vulnerable groups within Canadian society — our children:" Morrison, at para. 153; see also Morrison at paras. 2-3; Cowell, at paras. 120-121. In separate concurring reasons in Morrison, Karakatsanis J. would have declared the mandatory minimum one-year sentence for child luring in section 172.1(2)(a) unconstitutional. In her reasons, Karakatsanis J. observed, at para. 177:
Given the gravity of this offence, there is no doubt that, in many cases, the appropriate sentence will be a term of imprisonment that falls within the range contemplated by s. 172.1(2)(a). For example, the Ontario Court of Appeal has determined that in most child luring cases, the sentencing goals of denunciation and deterrence require a sentence of institutional incarceration (R. v. Jarvis (2006), 211 C.C.C. (3d) 20 (Ont. C.A.), at paras. 27 and 31; R. v. Folino, 2005 ONCA 258, 77 O.R. (3d) 641, at para. 25; Alicandro, at para. 49; but see R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 58). In most cases proceeding by indictment, the appropriate range will be from 12 to 24 months (Jarvis, at para. 31).
[Emphasis added]
[61] More recently, in Friesen, the Supreme Court, in a unanimous judgment, provided essential guidance for sentencing offenders who commit sexual offences against children. It did so to ensure that “sentencing judges impose sentences that accurately reflect the nature of sexual offences against children and their impact on the victim”: Friesen at para. 43. Importantly, for purposes of this case, the Supreme Court in Friesen made clear that its decision applied equally to all sexual offences against children, including child luring and making sexually explicit material available to a child: at para. 44, and footnote 2.
[62] Careful consideration of the Supreme Court’s decision in Friesen is necessary for two reasons. First, the judgment is instructive concerning the sentencing of offenders who commit the offences of child luring or making sexually explicit material available to a child, including by communicating with undercover police officers posing as children during sting operations. Second, judges of this court have disagreed about the sentencing range for these offences after Friesen and because of it. Therefore, it is necessary to carefully consider the Supreme Court's decision in Friesen to choose between the competing lines of authority that have emerged concerning the range of sentences for the offences Mr. Kavanagh committed.
[63] In Friesen, the Supreme Court made various observations concerning sexual offences against children. It acknowledged the prevalence of such crimes, the life-altering consequences they occasion for victims, the use of new technologies to perpetrate them, and efforts by Parliament and the courts to keep up with these developments: at paras. 46-49. At the same time, the Supreme Court endeavoured to dispel misconceptions that have occasionally led sentencing judges to downplay the seriousness of these crimes and the harm they cause: at paras. 50-64. The Supreme Court emphasized the inherent wrongfulness of such offences while recognizing that they too often go unreported and remain invisible to society: at paras. 65-67. Additionally, it acknowledged that sexual offences against children disproportionately impact girls and young women, Indigenous people, and members of other vulnerable groups: at paras. 68-73.
[64] After making these crucial observations concerning sexual offences that victimize children, the Court in Friesen provided sentencing judges with essential guidance to better ensure that sentences reflect our contemporary understanding of these crimes and their implications.
[65] To help ensure that sentences for these offences are proportionate, the Supreme Court explained how to properly assess the gravity of such crimes. It directed that sentencing judges “must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences”: at para. 76. It provided direction on how sentencing judges should assess these three considerations: at paras. 77-86.
[66] The Supreme Court also provided direction for assessing the responsibility of offenders who commit such crimes. It recognized that most bear a high degree of responsibility for their actions because they will either know or ought to know the profound harm they cause their victims: at para. 88. And “the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable”: at para. 90.
[67] Of particular importance to this case are the Supreme Court’s observations in Friesen regarding assessing the degree of responsibility of offenders like Mr. Kavanagh, whose offences do not involve an actual child victim. In their reasons on behalf of the Court, Wagner C.J. and Rowe J. wrote, at paras. 93-94:
[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. Child luring may be committed in two ways: the offender is actually communicating with an underage person, or the offender believes the person he is communicating with is underage even though this is not in fact the case. In particular, the offence of child luring is often prosecuted through sting operations: an undercover officer poses online as a child and waits for an offender to initiate communication with a sexual purpose (see, e.g., R. v. Levigne, 2010 SCC 25, [2010] 2 S.C.R. 3, at para. 7; Morrison, at para. 4). 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. After all, to be convicted of child luring in the context of a police sting operation where the person the offender was communicating with was not in fact under age, the offender both must have intentionally communicated with a person who the offender believed to be under age and must have had the specific intent to facilitate the commission of a sexual or other specified offence against that person (Morrison, at para. 153).[4]
[94] Moreover, it must be recognized that with the advent of social media, "sexual offenders have been given unprecedented access to potential victims and avenues to facilitate sexual offending," especially through child luring (K.R.J., 2016 SCC 31, at paras. 102 and 104). Parliament designed the child luring offence to enable the police to use sting operations to "close the cyberspace door" by apprehending offenders before they can successfully target and harm children (Levigne, at para. 27, quoting R. v. Legare, 2009 SCC 56, [2009] 3 S.C.R. 551, at para. 25; see also Levigne, at paras. 24-29). Sting operations conducted by the police have become an important tool — if not the most important tool — available to the police in detecting offenders who target children and preventing them from doing actual harm to children (see R. v. Alicandro, 2009 ONCA 133, 95 O.R. (3d) 173, at para. 38). As Abella J. stated, "These sting operations are crucial in the enforcement of child luring laws since, as Doherty J.A. cogently put it, 'Children cannot be expected to police the Internet'" (Morrison, at para. 202, quoting Alicandro, at para. 38). And courts should bear this in mind when sentencing offenders who have been outed by police undercover operations. To be clear, child luring should never be viewed as a victimless crime.
[68] The Supreme Court in Friesen provided guidance to ensure that sentences for sexual offences against children respond to Parliament’s desire for such crimes to be subject to more severe punishment than before and better reflect our contemporary understanding of the profound harm these crimes cause to their victims. Concerning Parliament’s message, the Supreme Court pointed to successive legislative initiatives increasing the maximum available sentences and the addition of section 718.01 to the Criminal Code, which requires courts to give primary consideration to the objectives of denunciation and deterrence when sentencing for such offences. In that regard, the Supreme Court in Friesen provided guidance on three specific points as follows.
[69] First, it recognized that sentencing judges “can and sometimes need to depart from prior precedents and sentencing ranges” to impose proportionate sentences for sexual offences against children: at para. 108. That is especially the case where a sentencing range no longer reflects Parliament’s view of the gravity of the offence (as evidenced by increases in the maximum available sentences) and our contemporary understanding of the harms caused by such crimes: at paras. 108-109. Ultimately, sentencing judges must be free to impose “proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders”: at para. 114; see also at para. 162.
[70] Second, the Supreme Court recognized that sentencing ranges for sexual violence against adults and children should differ. It identified the various ways Parliament has clearly signaled that punishments for those who sexually abuse children should be more severe: at para. 116. However, the primary audience for this observation was appellate courts in jurisdictions that have wrongly equated sexual violence against children with sexual violence against adults: at paras. 115, 118.
[71] Third, the Supreme Court explained that courts should not treat the offences of sexual interference and sexual assault involving child victims differently, as some appellate courts appear to have done. Each carries the same maximum sentence and can usually find support in the same factual foundation, given that children are legally incapable of consenting to sexual activity: at paras. 119-120.
[72] Finally, the Supreme Court in Friesen identified various factors that courts should consider in determining a fit sentence for sexual offences against children. These include: (1) the offender’s likelihood to reoffend (paras. 122-124); (2) the abuse of a position of trust or authority (paras. 125-130); (3) the duration and frequency of the abuse (paras. 131-133); (4) the age of the victim (paras. 134-136); (5) the degree of physical interference, while not giving it undue emphasis given that there is no hierarchy of physical acts and remembering the emotional and psychological harm associated with all crimes of this nature (paras. 137-147); and (6) the irrelevance of a victim’s participation in the act(s) (paras. 148-154).
[73] With that review of the Supreme Court’s decision complete, I turn to the two lines of authority from judges of this court since the decision in Friesen concerning the sentencing range for the offences Mr. Kavanagh committed.
[74] Under one line of authority, which Mr. Raeesi, for the Crown, urges that I follow, judges have recognized that the sentencing range for child luring and making sexually explicit material available to a child is now between three and five years of imprisonment. That was the view of Code J. in R. v. Moolla, 2021 ONSC 3702, who provided the following explanation for reaching that conclusion at para. 21:
I agree with Ms. Rogozinski's analysis, on behalf of the Crown, concerning the effect of Woodward and Friesen on the appropriate range of sentence for internet child sex luring. In Woodward, the Court of Appeal held that a range of three to five years would be appropriate if the offence of luring became "a pervasive social problem" and in light of Parliament having increased the maximum sentence from five years to 10 years in the 2007 amendments. In 2015, four years after Woodward, Parliament again increased the maximum sentence, from 10 years to 14 years. In 2020, the Supreme Court decided Friesen and held that "child-luring incidents more than doubled between 2010 and 2017", that repeated increases in the maximum sentence mean that "courts need to give effect to Parliament's clear and repeated signals to increase sentences", and that the new range suggested in Woodward was to be "commended." In all these circumstances, I am satisfied that three to five years is now the appropriate range. See: R. v. Woodward, supra at para. 58; R. v. Friesen, supra at paras. 46, 99-100, and 113-114.
[75] Since Moolla, another judge of this court and a judge of the Ontario Court of Justice have accepted the three to five-year sentencing range it identified for these offences: see R. v. Mootoo, 2022 ONSC 384, at paras. 33, 67; R. v. MacDonald, [2022] O.J. No 1260 (C.J.), at para. 26.
[76] In contrast, the second line of authority expresses a different view, essentially holding that it is far too early to draw any firm conclusions concerning the sentencing range for offences of this nature post-Friesen. That was the conclusion reached by McArthur J. in R. v. Collier, 2021 ONSC 6827, who explained, at paras. 96-100:
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.
Similarly, see the decision of Boswell J. in R. v. Sinnappillai, 2022 ONSC 832, at para. 64.
[77] Having considered both lines of authority, I find the reasons of McArthur J. in Collier more persuasive. Like her, I do not read the Supreme Court’s comments in Friesen as endorsing the three-to-five-year sentencing range that Moldaver J.A. tentatively suggested as a future possibility for the child luring offence in Woodward. Ultimately, as the Supreme Court’s decisions referenced in the quoted passage from Collier suggest, sentencing ranges are primarily descriptive rather than prescriptive.
[78] After Friesen, if sentences for the child-luring and make-available offences in Ontario must increase to ensure proportionality in sentencing for these crimes, then the sentencing decisions of judges in individual cases in this province will undoubtedly reflect that shift over time. As the decided cases accumulate, it will be for sentencing judges to discern the newly developing range from them and ultimately for the Court of Appeal to recognize a new sentencing range in unambiguous terms.
[79] For purposes of sentencing Mr. Kavanagh, what is especially noteworthy is that since Friesen, most Ontario courts have imposed reformatory rather than penitentiary sentences in child luring and make available cases involving police undercover sting operations: see R. v. Aguilar, 2022 ONCA 353; R. v. Battieste, 2022 ONCJ 573; Collier; Sinnappillai; R. v. Razon, 2021 ONCJ 616; R. v. Saberi, 2021 ONCJ 345; R. v. Patel, [2022] O.J. No. 3800 (C.J.); but see Moolla and MacDonald.
The aggravating and mitigating factors
[80] In determining the appropriate sentence, a sentencing judge must consider any relevant aggravating or mitigating circumstances relating to the offence or the offender: Criminal Code, s. 718.2(a). These serve to “push the sentence up or down the scale of appropriate sentences for similar offences”: Nasogaluak, at para. 43.
[81] Three significant aggravating factors cause me to conclude that Mr. Kavanagh’s offences represent a gravely serious example of the offences for which he was found guilty.
[82] First, there are the number and duration of the communications. Mr. Kavanagh did not send a few messages over a short timeframe. Instead, he exchanged hundreds of messages with “Eve” over several months. Throughout, he believed he was corresponding with a 15-year-old girl and his purpose, at least at some point, as the jury found, was to facilitate sexual contact with her. Mr. Kavanagh’s actions did not reflect a momentary lapse in judgment. Instead, his criminal behaviour resulted from a deliberate and sustained course of conduct, undoubtedly an aggravating factor.
[83] Second, there was the substance of the communications themselves. They reveal that Mr. Kavanagh engaged in a sustained pattern of “grooming” behaviour; conduct meant to foster the girl’s trust, lower her inhibitions, and normalize the prospect of her engaging in sexual activity with Mr. Kavanagh, who was far older than she was. The sharing of sexually explicit materials was part and parcel of those efforts. Grooming behaviour qualifies as an aggravating factor in child luring cases: see Woodward, at para. 43. As a result, it reflects a high degree of moral culpability on the part of Mr. Kavanagh for his offences.
[84] Third, during his correspondence with “Eve,” Mr. Kavanagh encouraged her to share images of herself with him, including intimate images. If “Eve” were an actual child and succumbed to these requests, then Mr. Kavanagh would also be guilty, as a party, to making and distributing child pornography: see Criminal Code, ss. 22, 163.1(2), 163.1(3). Given that “Eve” was two different police officers playing the role of a 15-year-old girl, it was impossible for Mr. Kavanagh to commit these additional offences. Nevertheless, Mr. Kavanagh's encouragement of “Eve” to create child pornography undoubtedly heightens the blameworthiness of his conduct and qualifies as a relevant aggravating factor.
[85] All that said, I reject the Crown’s claim that a further aggravating factor is that Mr. Kavanagh abused his position with the Canadian Armed Forces in committing his offences. That claim stems from Mr. Kavanagh, in response to “Eve” asking if he wore a tie to work, mentioning that he was “in the military as a reservist” and sending her some photographs of him in his uniform at her request. Based on that alone, I am not prepared to find that Mr. Kavanagh abused his position with the Canadian Armed Forces to commit his offences.
[86] There are several mitigating factors the court must also consider in deciding on the appropriate sentence in this case.
[87] To begin, importantly, Mr. Kavanagh is a first offender. He does not have a prior criminal record.
[88] Second, Mr. Kavanagh is a person of previously good character who has an extensive support network. Before committing his offences, he had a positive employment record, an unblemished record as a reservist with the Canadian Armed Forces and, by all accounts, led an entirely pro-social life. Mr. Kavanagh’s previous good character and ongoing support from family and friends deserve consideration as mitigating factors because they bode well for his rehabilitation.
[89] Third, based on Dr. Ilacqua’s report, Mr. Kavanagh poses a low risk to reoffend. As Dr. Ilacqua observes, “with appropriate monitoring, structure, and interventions,” his risk of reoffending could remain low. That, along with Mr. Kavanagh having at least some insight into his offending behaviour, reflects positively on his potential for rehabilitation and warrants consideration as a mitigating factor.
[90] Finally, I am mindful that Mr. Kavanagh had a very difficult childhood. Unfortunately, as often happens, the abuse he suffered as a child has followed him into adulthood; he has been diagnosed with PTSD and continues to struggle with depression and anxiety. Although the childhood abuse he suffered and his ongoing mental health challenges in no way excuse his crimes, the proportionality principle requires the court to consider his life experience when assessing his degree of responsibility in committing his offences: Criminal Code, s. 718.1; see also Ipeelee, at para. 73; R. v. Morris, 2021 ONCA 680, 159 O.R. (3d) 641, at para. 88; R. v. Bristol, 2021 ONCA 599, at paras. 6-7.
[91] In that regard, although I cannot find Mr. Kavanagh’s childhood trauma and resulting mental health challenges are what caused him to commit his offences, I have little doubt that they at least played some contributory role: see R. v. Ellis, 2013 ONCA 739, 303 C.C.C. (3d) 228, at paras. 116-122, leave to appeal refused, [2014] S.C.C.A. No. 53. As such, Mr. Kavanagh’s childhood trauma and ongoing mental health issues deserve some consideration as mitigating factors.
[92] For the sake of completeness, certain circumstances in this case that do not qualify as mitigating factors deserve mention. First, unlike some offenders who commit these offences, Mr. Kavanagh never arranged nor attended a meeting with “Eve.” Had he done so, that would have undoubtedly constituted a significant aggravating factor, as it would betray a demonstrated commitment toward realizing the insidious goal of engaging in sexual activity with a child. However, the absence of a potential aggravating factor does not constitute a mitigating factor.
[93] Similarly, that Mr. Kavanagh was thankfully dealing with police officers throughout rather than an actual child is also not a mitigating factor. To be sure, the involvement of a real child would be an especially aggravating factor. And that a real victim was never involved is a relevant consideration because it bears upon the gravity of the offences. Nevertheless, as the Supreme Court emphasized in Friesen, just because the police catch an offender using a sting operation does not lessen their degree of responsibility. After all, to be guilty of these crimes, an offender must have intentionally communicated with a person he believed to be underage and have the specific intent to facilitate the commission of an enumerated offence: Friesen, at para. 93. As a result, that Mr. Kavanagh was fortuitously not dealing with a real victim does not qualify as a mitigating factor.
The collateral consequences
[94] Due to his arrest and charges, the Canadian Armed Forces suspended Mr. Kavanagh. He was also fired from his job and was required to change residences. Additionally, despite Mr. Kavanagh’s nearly thirty years of service, once sentenced, the Canadian Armed Forces will dishonourably discharge him. These negative ramifications for Mr. Kavanagh, each tied to his offences, qualify as the sort of collateral consequence the court must consider, at least to a limited extent, when fashioning an appropriate sentence for him: see R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at paras. 46-59.
The availability and appropriateness of a conditional sentence
[95] At the time of the sentencing hearing, a conditional sentence was available because the Court of Appeal had declared what was then section 742.1(c) of the Criminal Code unconstitutional: see R. v. Sharma, 2020 ONCA 478, 152 O.R. (3d) 209. Before that, section 742.1(c) foreclosed the availability of a conditional sentence for indictable offences where the maximum term of imprisonment is 14 years or life.
[96] After the sentencing hearing, the Supreme Court reversed the Court of Appeal’s decision in Sharma, which meant that section 742.1(c) remained operative: see R. v. Sharma, 2022 SCC 39. It would have precluded the availability of a conditional sentence for Mr. Kavanagh because the child luring and make available offences, when prosecuted by indictment, carry a maximum sentence of 14 years imprisonment.
[97] However, on November 17, 2022, Bill C-5 received Royal Assent. It amended section 742.1(c) and eliminated the unavailability of conditional sentences for indictable offences where the maximum term of imprisonment is 14 years or life: see An Act to amend the Criminal Code and the Controlled Drugs and Substances Act, S.C. 2022, c. 15, s. 14(1). Because of section 11(i) of the Charter, Mr. Kavanagh benefits from this change in the law of sentencing. As a result, a conditional sentence is now available to him for his offences.
[98] The circumstances of this case satisfy four of the preconditions for a conditional sentence.
[99] First, in all the circumstances, as I shall explain more fully below, a sentence of less than two years of imprisonment is appropriate in this case: see Criminal Code, s. 742.1; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 49-61.
[100] Second, given that Mr. Kavanagh does not have a criminal record, has been on bail without incident for nearly three years, and poses a low risk to reoffend, I am satisfied that permitting him to serve a conditional sentence would not endanger the safety of the community: see Criminal Code, s. 742.1(a); Proulx, at paras. 69-74.
[101] Third, given the declarations of invalidity in C.D.R. and Faroughi, these offences are no longer punishable by a minimum term of imprisonment, which would have precluded a conditional sentence: see Criminal Code, s. 742.1(b).
[102] Fourth, the two offences for which Mr. Kavanagh was found guilty are not amongst the now relatively few crimes for which a conditional sentence is unavailable: see Criminal Code, ss. 742.1(c) and (d).
[103] The final precondition that must be met for the court to order a conditional sentence is that it be satisfied that such a sentence “would be consistent with the fundamental purpose and principles of sentencing”: Criminal Code, s. 742.1(a).
[104] In general, conditional sentences are available even in cases where the preeminent sentencing objectives are denunciation and deterrence and there are aggravating circumstances. Although in Proulx, the Supreme Court recognized that conditional sentences are more effective than incarceration at achieving rehabilitation, reparations to victims and the community, and promoting a sense of responsibility, it also acknowledged that they are “a punitive sanction capable of achieving the objectives of denunciation and deterrence”: at para. 22. That is because conditional sentences carry a significant stigma when they include punitive conditions, like house arrest: see Proulx, at paras. 36, 105. Therefore, if fashioned appropriately, the Court acknowledged that conditional sentences provide “a significant amount of denunciation” (para. 102) and “significant deterrence” (para. 107). Similarly, even when there are aggravating circumstances relating to the offence or the offender, Proulx instructed that conditional sentences remain available: at para. 115.
[105] Nevertheless, the Supreme Court in Proulx also recognized that in some cases, the amount of deterrence and denunciation provided by a conditional sentence could prove insufficient. For the Court, Lamer C.J. explained, “there may be certain circumstances in which the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct”: at para. 106.
[106] It is noteworthy that even in the early days of the child luring offence, the Court of Appeal for Ontario recognized that “it will only be in the rarest of cases” that a conditional sentence “will be appropriate in a case involving this offence”: Folino, at para. 25. It further observed, as noted above, that “the sentencing goals of denunciation and deterrence” will ordinarily “require a sentence of institutional incarceration ”: Folino, at para. 25 (emphasis added).
[107] Since then, Parliament has twice increased the maximum sentence for the offence of child luring and has supplemented the protection afforded to children when they venture online by creating the make-available offence. As the Supreme Court recognized in Friesen: “These successive increases in maximum sentences indicate Parliament’s determination that sexual offences against children are to be treated as more grave than they had been in the past.”: at para. 99. Consequently, “courts should generally impose higher sentences than the sentences imposed in cases that preceded the increases in maximum sentences”: at para. 100.
[108] After emphasizing these observations from Friesen, in R. v. M.M., 2022 ONCA 441, the Court of Appeal allowed a Crown sentence appeal in a case where the trial judge had imposed a conditional sentence on an offender found guilty of possessing and making child pornography. In doing so, it observed, at para. 16, that:
Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate - for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.
[Emphasis added]
[109] In Mr. Kavanagh's case, although there are mitigating circumstances and collateral consequences also deserving of some consideration in fashioning an appropriate sentence for him, there is an absence of exceptional circumstances that would render institutional incarceration inappropriate. Ultimately, given the gravity of his offences, as reflected by the significant aggravating factors, a conditional sentence would inadequately address the objectives of denunciation and deterrence in this case. Therefore, imposing such a sentence would be inconsistent with the fundamental purpose and principles of sentencing.
[110] Accordingly, I decline to order that Mr. Kavanagh serve his sentence of imprisonment in the community.
The appropriate sentence
[111] In deciding on the appropriate sentence, I have carefully considered the purpose, principles, and objectives of sentencing; the aggravating and mitigating factors; and the collateral consequences. In the end, I must impose a sentence proportionate to the gravity of these crimes and Mr. Kavanagh’s degree of responsibility in their commission. That requires remaining mindful of the principle of parity.
[112] Concerning parity, none of the post-Friesen sentencing decisions are perfectly analogous. Nevertheless, of those cases, Collier has some of the closest parallels.
[113] Like Mr. Kavanagh, Mr. Collier was found guilty after trial. He communicated for two and a half months with a police officer posing as a 14-year-old girl. He was found guilty of child luring and sharing sexually explicit material because of those interactions. However, the court also found Mr. Collier guilty of additional counts for communicating with and sending sexually explicit material to six other individuals who represented themselves as underage girls. Additionally, Mr. Collier was found guilty of possessing child pornography involving 19 unique images police located on his computer. To be sure, the number of victims and the possession of child pornography make Mr. Collier’s crimes much graver than Mr. Kavanagh’s.
[114] Nevertheless, Mr. Collier, like Mr. Kavanagh, did not have a criminal record. He also had a childhood marred by abuse and suffered from depression and anxiety. A risk assessment concluded Mr. Collier posed a “very low risk” to reoffend. Additionally, like Mr. Kavanagh, there were collateral consequences for Mr. Collier. Because of his offences, he would be unable to pursue his desired career in nursing.
[115] In Collier, the court imposed a global sentence of two years less a day, followed by three years of probation. As noted, Mr. Kavanagh’s offences are not as numerous or severe as those committed by Mr. Collier. But, as explained, Mr. Kavanagh’s circumstances are remarkably similar.
[116] Mindful of all the principles and objectives of sentencing, the aggravating and mitigating circumstances, and the collateral consequences, I have concluded that a sentence of 16 months of imprisonment followed by three years of probation properly accounts for the gravity of Mr. Kavanagh’s offences and his degree of responsibility in their commission.
[117] A sentence of that duration is substantial, especially for a first offender like Mr. Kavanagh, whose criminal behaviour has already occasioned significant collateral consequences for him that are their own form of punishment (in particular, the loss of his three-decades-long military career). Such a sentence is also sufficiently long to send an unequivocal message of denunciation and to deter Mr. Kavanagh and other potential offenders from engaging in similar conduct.
[118] That sentence also takes proper account of the objective of rehabilitation, which remains a relevant sentencing consideration for these, as it does all offences: see Friesen, at paras. 104, 124; Bissonnette, at paras. 51, 102, 146. Especially for someone like Mr. Kavanagh, who does not have a criminal record and good prospects, with the proper intervention, of never offending again. Undoubtedly, Mr. Kavanagh’s rehabilitation will best serve the long-term protection of society, which is one of the fundamental purposes of sentencing.
Conclusion
[119] For the offence of child luring (count one), Mr. Kavanagh is convicted and sentenced to 16 months of imprisonment. The court recommends that Mr. Kavanagh serve his sentence at the Ontario Correctional Institute, where he can receive the sex offender therapy he requires while incarcerated. The court also directs that the correctional authorities be provided with a copy of Dr. Ilacqua’s report.
[120] Mr. Kavanagh’s conviction for making sexually explicit material available to a child (count two) is conditionally stayed because of the Kienapple principle: see R. v. Harris, 2017 ONSC 940, at paras. 24-30; R. v. Kienapple, [1975] 1 S.C.R. 729.
[121] Additionally, Mr. Kavanagh will be subject to a probation order for three years on the following conditions:
- Keep the peace and be of good behaviour;
- Appear before the court when required to do so by the court;
- Notify the court or his probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation;
- Report to a probation officer within two business days after his release from custody and after that if and when he is directed to do so by his probation officer;
- Take any counselling as directed by his probation officer, with a specific recommendation that he undergo sex-offender counselling or therapy; and
- Cooperate with his probation officer and sign any necessary releases to allow his probation officer to monitor his compliance with any of the terms of the probation order.
[122] Additionally, the following ancillary orders shall also issue:
- An order that Mr. Kavanagh is to comply with the Sex Offender Information Registration Act for 20 years.
- An order authorizing the collection of a DNA sample from Mr. Kavanagh.
- An order that Mr. Kavanagh is to pay a victim surcharge of $200 within 24 months of today's date.
[123] Given the circumstances of Mr. Kavanagh’s offences, I am satisfied that he poses at least some future risk to pubescent children: see R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at paras. 48, 72. Therefore, an order shall issue under section 161(1) with conditions specifically tailored to minimize that risk, including:
- Under subsection 161(1)(b) - For ten years following his release from custody, he is not to seek, obtain, or continue any employment, whether the employment is remunerated, or become or be a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16 years.
- Under subsection 161(1)(c) - For ten years following his release from custody, he is not to have any contact — including communicating by any means — with a person who is under the age of 16 years unless they are a member of his immediate or extended family, and he is also in the continuous presence of another person over the age of 18 years.
- Under subsection 161(d) - For eight years following his release from custody, he is not to use the Internet or other digital network to (1) access any content that violates the law; or (2) directly or indirectly access any social media sites, social network, Internet discussion forum or chat room, or maintain a personal profile on any such service (e.g. Kik, Facebook, Twitter, Instagram or any equivalent or similar service).
[124] The language of the section 161(1) order deliberately tracks that used by the Court of Appeal in R. v. Brar, 2016 ONCA 724, 134 O.R. (3d) 95, at para. 29.
[125] I would like to thank Mr. Raeesi and Mr. Huberman for their written materials and oral submissions, which were of considerable assistance to the court.
Signed: “Stribopoulos J.”
