R. v. Turgeon, 2025 ONSC 406

Reasons for Sentencing

Court File No.: CR-22-5709
Date of Judgment: January 21, 2025
Amended: January 28, 2025
Ontario Superior Court of Justice
Between:
His Majesty the King – and – Ryan Turgeon (Offender)

Appearances:
Jayme Lesperance, for the Crown
Paul Socka as agent for Dean Emery, for the Offender

Heard: Sentencing submissions – September 23, 2024

Amendment Note:
The text at para. 39 of the original decision released January 21, 2025, states:
“The court in M.V., allowed the appeal of a global eight (8) year sentence after the offender pleaded guilty to separate incidents of sexual interference x2 and child luring and possession of child pornography. The sexual interference involved a ten or 11-year-old boy.”
and has been since amended to state:
“The court in M.V., allowed an appeal against sentence for an offender who pleaded guilty to separate incidents of sexual interference x 2 and child luring and possession of child pornography.”
No other changes have been made to this decision.

Justice: Brian D. Dubé

A. Overview

1The offender, Ryan Turgeon, was convicted following a jury trial on count 1 of making sexually explicit materials available to a child contrary to s. 171.1(1)(a) of the Criminal Code of Canada, R.S.C. 1985, c. C-46, and on count 2 of sexual exploitation (“child luring”) contrary to s. 153(1)(b) of the Criminal Code. The dates of the offences were between January 1, 2016, and September 1, 2019. The complainant, M.C., was the subject matter of only these two counts.

2The jury trial began on April 2, 2024, and ended on April 11, 2024. On that later date, the jury found the offender not guilty on all four counts that remained against the second complainant, R.A. (counts 3, 4, 6, and 8). The Crown had withdrawn counts 5 and 7 before the jury deliberated.

3The offender did not testify at trial.

4Counsel both agree that the principle in R. v. Kienapple, [1975] 1 S.C.R. 729 is not applicable.

B. The Position of the Parties

Position of the Defence

5Depending on the facts that I find, the defence position is a reformatory sentence of between 12 and 18 months. For instance, if I do not find that the offender requested a four-some from M.V., the sentence should fall at or closer to 12 months jail.

6While acknowledging the statutorily aggravating factors (position of trust, victim is under 18 years old) and that denunciation and deterrence are the leading principles of sentencing in sexual offences involving children, the fact that the offender has no criminal record puts squarely into play the principle of restraint and therefore any jail sentence should be as short as possible.

7In further support of a jail sentence at the lower part of the range, the defence argues that as it relates to count 1, there is uncertainty regarding how many images and videos were sent as well as the exact content of that material. It appears however that the nature of the explicit materials sent by the offender fell on the lower end of the sexually graphic range.

8There was also ambiguity regarding certain comments allegedly attributed to the offender such as the offender requesting that M.C. and R.A. attend his house for a four-some. The defence submits that due to the fact that the offender was acquitted of all charges against R.A., it cannot be determined beyond a reasonable doubt that the offender in fact made this statement to M.C.

9The defence emphasised that as opposed to some of the cases that the Crown relies on, there is only one rather than multiple victims, the victim is an adolescent and not a young child, no threats were made by the offender (i.e. do not tell anyone, or else…), and there is no evidence of grooming. Further, no physical touching took place and the total number of video/images sent and the number of incidents that occurred were less than in other cases.

10In conclusion, the defence argues that there is no justification for a penitentiary sentence based on similar cases, let alone a three (3) year sentence advocated by the Crown, and that a sentence in the range of 12 to 18 months is an appropriate and reasonable one.

Position of the Crown

11The Crown seeks a three (3) year penitentiary sentence to adequately reflect the principles of denunciation and deterrence and the many aggravating factors in this case. These factors include that the offender abused his position of trust as a teacher and used sexually explicit images and videos to lure a vulnerable underage student who was struggling with his sexuality to have sexual relations with him. The Crown relies heavily on R. v. Friesen, 2020 SCC 9, a recent decision from the Supreme Court of Canada, and other subsequent cases to justify a relatively lengthy jail sentence for this offender.

C. Brief Summary of the Facts

12Since this was a jury trial, I am tasked with determining the facts upon which the jury reached the verdicts of guilt beyond a reasonable doubt on counts 1 and 2. In this regard, I find the below to be the facts:

13M.C. was born on November 30, 2000. On the date of the trial, he was 23 years old.

14The offender was M.C.’s high school teacher. According to the Agreed Statement of Fact (“ASF”), the offender was M.C.’s Grade 11 Civics and Career teacher between February and June 2017 and his Grade 12 drama teacher between February and June 2018. M.C. testified that the allegations occurred between the end of Grade 11 and the end of Grade 12, when he was between the ages of 16 and 17 years old. The offender was approximately 15 years older than the victim.

15M.C. stated that in high school, he was struggling with his sexuality and decided to seek advice from the offender. He knew that the offender was gay and had a boyfriend, and he felt comfortable with him. In between periods in late Grade 11, M.C. met the offender in the drama room and told him about his internal challenges and “things” that had happened between himself and another student.

16While M.C. does not recall the exact conversation, he was left with the distinct impression that instead of offering advice, the offender wanted to have a physical sexual experience with him. M.C. eventually changed the subject and the conversation ended approximately five to ten minutes later.

17M.C. testified that he felt uncomfortable with what the offender had said especially since he was his teacher. Nonetheless, M.C. brushed it off and went about his day.

18As it relates more specifically to count 1, approximately one or two months after that conversation, the two started to communicate through the social media platform Snapchat. This continued until the end Grade 12. During that period, and while under the age of 18, M.C. testified that he received several sexually explicit images and videos from the offender. Although the evidence of M.C. was inconsistent in terms of the number of images and videos, I find that the offender sent him sexualized materials on at least a dozen occasions.

19The materials sent to M.C. by the offender included, (1) an image of the offender rubbing his penis with his hand while he was otherwise fully clothed, (2) a ten second video of the offender laying on a bed while a man, described as his boyfriend, performed oral sex on him, (3) a video of the offender grabbing and rubbing his penis over his clothes and, (4) a video of the offender kissing another man, which M.C. believed was his boyfriend. No messages accompanied the images or videos and the two did not discuss the materials at school.

20M.C. testified that some of the materials, including the oral sex video, were sent when the offender was his drama teacher. In any event, whether the above materials were sent when the offender was his teacher or his former teacher, it appears clear that the jury found beyond a reasonable doubt that the offender, at all relevant times, held a position of trust over M.C., which is an essential element of count 1.

21As it relates specifically to count 2, M.C. also testified that the offender would occasionally ask him at school if he would like to come back to his house to experiment. In the middle of Grade 12 the offender asked if he and the other complainant, R.A., wished to gain experience and have a foursome with him and his boyfriend. M.C. interpreted this, correctly in my view, that the offender wished to have sexual relations with him.

22Counsel for the offender argues that because the jury acquitted the offender on all charges involving R.A., including count four (invitation to sexual touching), a reasonable doubt is raised with regards to whether the offender asked M.C to have a four-some. I disagree. The Crown did not bring a similar fact application and I instructed the jury to treat each count separately. In other words, based on the facts and the law, the jury was directed to render a separate decision and give a separate verdict in relation to each individual count.

23R.A. testified that M.C. never raised any concerns with him about the offender. M.C., on the other hand, testified that he told R.A. that the offender had suggested that they have a four-some. While the jury rejected R.A.’s evidence either in whole or in relation to the essential elements of counts 3, 4, 6, and 8, they obviously accepted, at minimum, M.C.’s evidence as true in respect to the essential elements underlying counts 1 and 2.

24Based on this, and after reviewing the evidence myself, I find as both credible and reliable the testimony by M.C. that the offender asked him whether he would, for a sexual purpose, like to come back to his house to experiment and then on another occasion suggested that they have a four-some. More specifically, based on all the evidence, I am satisfied beyond a reasonable doubt that while in a position of trust the offender incited M.C. when he was between the age of 16 and 18 years to touch his body for a sexual purpose by requesting that M.C. have a four-some with him and others.

25Finally, M.C. did not recall if the offender ever told him not to tell anyone about any of the above incidents.

D. Circumstances of the Offender

26The offender elected not to have a Pre-Sentence Report generated for the purpose of the sentencing hearing.

27The offender was born on February 5, 1985, and is currently 39 years old. At the time of the offences, he would have been between 30 and 34 years old. He is a Canadian citizen.

28The offender attended Teachers’ College in 2008/2009 and taught until 2021. He lost his employment as a teacher when he was arrested on these charges. The offender will likely never teach again. He is currently employed as a freelance graphic designer.

29Defence counsel noted that a tremendous amount of notoriety and stigma flowed from the offender’s arrest and trial. While he has the support of several family members, many of whom attended court at the sentencing hearing (his mother, father, sister and brother-in-law), he lost the support of other family members as well as friends.

30The offender has no criminal record, is highly employable, lived an otherwise pro-social life and is of good character.

E. The Victim Impact Statement

31The victim filed a victim impact statement. It was brief, but very telling.

32The victim states that because he felt comfortable as a student with the offender, he shared a lot of personal information about himself, including the uncertainty that he felt at the time about his sexuality. M.C. went on to state however that as he got closer to the offender, he was taken advantage of.

33The victim says he is now older and understands more clearly what is right from wrong as well as the boundaries that ought to have been in place at the time of the offences. He states that he still feels violated by the conduct of the offender and lives everyday knowing that he was taken advantage of.

34Despite all that, M.C. hopes that the offender gets the help that he needs.

F. The Governing Legal Principles

35The relevant sentencing principles in the Criminal Code include the following:

Section 718 – The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives:

• (a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
• (b) to deter the offender and other persons from committing offences;
• (c) to separate offenders from society, where necessary;
• (d) to assist in rehabilitating offenders;
• (e) to provide reparations for harm done to victims or to the community; and
• (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

Section 718.01 – When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.

Section 718.04 – When a court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence.

Section 718.1 – A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Section 718.2 – A court that imposes a sentence shall also take into consideration the following principles:

• a) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,
  • (i) evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor,
  • (ii) evidence that the offender, in committing the offence, abused the offender’s intimate partner or a member of the victim or the offender’s family,
  • (ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
  • (iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
  • (iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
• b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

36Several cases were provided by the Crown and defence to assist the court with determining a fit and proper sentence for this offender – I will refer to many, but not all these cases.

37The decision R. v. Friesen, 2020 SCC 9 represented a paradigm shift in the approach to sentencing offenders who have been convicted of sexual offences against children, including child luring: Friesen, para. 44.

38The post-Friesen decision of the Ontario Court of Appeal in R. v. M.V., 2023 ONCA 724 is particularly instructive when sentencing offenders convicted of child luring. In applying the sentencing principles outlined in Friesen to other sexual offences such as child luring, the court said the following at paras. 53 to 56:

The Supreme Court of Canada, writing in Friesen, sent a "strong message" to courts to ensure that sentences involving sexual offences against children, including child luring, are proportionate and reflect the "wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large": Friesen, para. 5. The court invited appeal courts to depart from past precedents to achieve this: Friesen, at para. 35. It provided guidance on applicable sentencing principles in sexual offence cases involving children, including child luring, to assist in this evaluation, but cautioned that because of the facts before them, the guidance it was providing focused on assault-based sexual offences: Friesen, at para. 44.

Noting that reports of child luring tripled between 2010 and 2017, the court emphasized the dangers of technology in facilitating sexual offences: Friesen, at paras. 46-49. The court also reinforced the emphasis that is to be given to the "personal autonomy, bodily integrity, sexual integrity, dignity, and equality" rights of children, and to focus on "emotional and psychological harm" to the child and to families: Friesen, at paras. 56, 63. It reinforced the wrongfulness in exploiting the vulnerability of children for sexual purposes and directed courts to consider that sexual offences against children are underreported: Friesen, at paras. 65, 67. The court called for sentencing practices to reflect this "deepening and evolving understanding of [the] severity" of sexual offending, as well as the inherent "wrongfulness and harmfulness of sexual offences": Friesen, at paras. 74-75. The court also directed courts to ensure that sentencing ranges reflect Parliament's intention to increase sentences through legislative increases in maximum sentences: Friesen, paras. 96-100, 108.

The court did not identify sentencing ranges for offences, leaving it to appellate courts to do so, but the court commented that "mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances": Friesen, at para. 114.

The message is clear. Given Friesen and the increase in the maximum penalty for child luring to 14 years in 2015 through the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, the sentencing ranges reflected in existing authority for both child luring and possession of child pornography require reconsideration. Given that the establishment of a sentencing range is best identified incrementally, I do not purport to determine a set range applicable to the kinds of offences that the appellant committed, but it is evident that the existing sentence range cannot be applied without adjustment, and I propose to do so.

39The court in M.V., allowed an appeal against sentence for an offender who pleaded guilty to separate incidents of sexual interference x 2 and child luring and possession of child pornography. The child luring, which I will focus on now, involved two young girls aged ten and eight years. The Court of Appeal sentenced the offender on the child luring conviction to four years jail, later adjusted down to three (3) ½ years after considering the principle of totality. Over a three-month period, the offender communicated with the ten-year-old and had pornographic images of the child urinating, defecating, and masturbating. Naked images of the victim’s eight-year-old sister on a bed were also included. The accused sent a video of himself masturbating, photos of him urinating, as well as child pornography involving other young children. In total, 20 images and videos of the children were sent by the victims to the offender, and he sent them 44 images of child pornography, in addition to images and videos of himself. The offender made no attempts to meet the children, and he never physically assaulted them.

40The court found the following as aggravating features: (1) there were two victims, (2) the young ages and degree of immaturity of the victims, (3) the extensive sexually explicit materials, (4) the duration of the offending period, (5) the offender sent sexually explicit images of himself and child pornography to the victim, (6) he induced the victims to create child pornography, and (7) he shared the images that constitute child pornography with another person.

41In mitigation, the court considered: (1) the guilty plea, (2) he had no related criminal record and had lived a pro-social life, (3) there was no assessment indicating he was a significant risk of reoffending, (4) he was not in a position of trust over the victims, (5) he expressed remorse and took rehabilitative steps.

42The court found that a fit mid-range sentence for child luring is four years with the upper range being five years. Factors which tend to warrant a sentence at the higher end of the range includes: (1) any attempt to meet the children, (2) successful luring which brings the offender and victim together for direct physical contact, (3) a relationship of trust, and (4) extortion or threats to secure compliance.

43The court was reluctant to set the bottom of the range for child luring at three (3) years primarily because it is a preparatory offence, which generally carries a lower penalty than fully completed offences. The court also explained that the “normal” mid-single digit prison terms referred to in Friesen for child sexual offences are more appropriate for violent-based sexual offences. As it relates to non-physical sexual offences, such as child luring, the mid-single digit prison sentence should be used as a “guidepost” rather than a hard and fast rule.

44The defence relies on a post-Friesen but pre-M.V. case, R. v. Kavanaugh, 2023 ONSC 322. In that case, Stribopoulos J. sentenced the offender to 16 months imprisonment after a jury found him guilty of child luring and making sexually explicit materials available to a child. For nearly a four-month period, the offender repeatedly communicated with “Eve,” a 15-year-old girl and Eve’s father, who offered Eve’s sexual services for sale over the internet. Both individuals were in fact police officers involved in a sting operation. The offender took the lead in turning the communication in a sexual direction and shared sexually explicit materials with Eve, including photos of his erect penis and numerous adult pornographic images and videos. The offender also pressed Eve to share intimate images of herself. Eve pressed the offender to meet her in New Jersey, but the offender offered various excuses regarding why he could not. Eventually the offender stopped responding to Eve’s messages. An assessment filed with the court indicated that although the offender had little insight into his criminal behaviour, he was nonetheless a low risk to re-offend. He also had no criminal record, was himself sexually abused as a child and had lived a pro-social life.

45The defence also provided R. v. Collier, 2021 ONSC 6826. In that case the offender was sentenced to two years less a day after being found guilty of luring and sending sexually explicit materials, including photos of his erect penis and apparent child pornography to “Addy”, who was an undercover police officer. He also sent explicit material to six other individuals who he believed were underage girls. He was a first-time offender and actively engaged in therapy since his arrest.

46Another case the defence relies on is R. v. Battieste, 2022 ONCJ 573 in which the offender communicated with an undercover officer who he believed to be a 14-year-old girl. He sent sexually explicit materials including images of his penis and videos of digital penetration, fellatio, and women being choked. The videos were sent with reference to the offender choking the victim while forcing her to perform oral sex, binding and tying her up and “taking turns” with the victim alongside the offender’s 38-year-old friend. The offender repeatedly pressured the victim to send him photos and to meet up and have sex. He had pleaded guilty to child luring and received a sentence of eight months incarceration.

47A further case from the defence is R. v. B.B., 2024 ONCJ 451, from the Ontario Court of Justice. The offender was in a position of trust as a babysitter for a 12-year-old girl, who looked up to him as an “uncle,” although he was not related. He was found to have taken the victim into a bedroom and show her adult pornography before pulling up her shirt and sucking on her breast. The offender himself was abused and had an unrelated criminal record. He received 12 months jail for making sexually explicit materials available and a consecutive sentence of two years less a day for sexual assault. The offender was not charged with child luring.

48I note that Battieste pre-dates M.V. and in both that case and B.B., the Crown proceeded by way of summary conviction. I therefore find these cases to be of little assistance. Further, the offenders in Kavanaugh, Collier, and Batteiste communicated with undercover police officers posing as children, rather than actual children.

49The final case is R. v. Rafiq, 2016 ONCA 768, which predates Friesen. The Court of Appeal overturned a conditional sentence of two years less one day for an offender who pleaded guilty to one count of child luring and instead imposed an equivalent sentence of incarceration (two years less one day). Over a five-month period the 24-year-old offender engaged in sexually explicit chats with an individual he knew to be 12-year-old girl. He instructed her on sexual activities, sent her images of his penis, induced her to send him nude images of herself (38 in total including of her vagina). Eventually the offender ended the communication with the victim. The offender was found to be a low risk to re-offend and was remorseful.

G. Mitigating and Aggravating Circumstances

50In terms of statutory and other aggravating features, the court considers the following:

• a) The offender abused a person under the age of 18 (s. 718.2(a)(ii.1) of the Criminal Code). In this case, the victim was between the ages of 16 and 17.
• b) He not only abused a position of trust as the victim’s high school teacher (s. 718.2(a)(iii.1) of the Criminal Code) but he did so by taking advantage of a student who was in a vulnerable state because he was struggling with his own sexuality: Friesen, para. 133 – which increases the offender’s degree of responsibility and the gravity of the offence: Friesen, para. 126 and 129.
• c) I find that the offences also had a significant impact upon M.C. (s. 718.2(a)(iii.1) of the Criminal Code), although not to the level of the actual or potential harm suffered by many young children who, in several other cases, had also been victimized.
• d) The sexual offences were committed by the offender on several occasions that stretched from when the victim was in Grade 11 to Grade 12. This indicates that the offender engaged in a degree of grooming towards the victim, which is particularly aggravating when it involves young teenagers in the process of discovering their sexuality: Friesen, para. 153; see also M.V., para. 49.
• e) The victim was an LGBTQ2+ youth and therefore especially vulnerable because of the marginalization they experience in society: Friesen, para. 73. Intentionally targeting children who are particularly vulnerable, such as those who belong to a group that is marginalized, increases the offender’s moral culpability: Friesen, para. 90.
• f) The offender actively attempted on more than one occasion to entice the victim to have sexual relations not only with him but also with his adult boyfriend and the other complainant, R.A.

51In mitigation, the court has also taken into consideration the following circumstances:

• a) The offender has no criminal record and lives an otherwise pro-social life. But being of prior good character has limited significance in sentencing cases that involves sexual offences: M.V., para. 69.
• b) He has the support of his family, who attended court.
• c) The offender has been on bail for several years without incurring any breaches or further criminal offences.
• d) There was one victim.
• e) Although under the age of 18 years, the victim was an adolescent and not a young child.
• f) The crime did not involve any direct physical sexual contact.
• g) The images and videos used to attempt to lure the victim did not involve child pornography but consisted mostly of the offender or the offender and another adult engaged in consensual sexual activity.
• h) The offender sent at least a dozen images and videos to the victim, which is considerably less than other cases.
• i) The offender did not induce the complainant to create child pornography.
• j) The offender never threatened the victim, and there is no evidence to suggest that he ever told M.C. not to tell anyone about the incidents.
• k) He spent overnight in custody, the equivalent of two days jail.

52The high moral blameworthiness and egregious breach of trust by this offender against a vulnerable student who had specifically reached out to him, his teacher, for advice to navigate his own struggles with sexuality, makes these sexual offences very serious. The existence of a level of trust between parent and teacher is essential for the proper administration of the education system. But that trust is violated when a teacher, such as this offender, engages in predatory sexual conduct that targets a student for the purpose of satisfying their own sexual gratification. Such conduct puts the very foundation of our education system at serious risk. As such, this behaviour must be denounced in the strongest terms and the sentence imposed designed to not only deter this offender, but also other educators who may be inclined to abuse their position of trust by committing sexual crimes against students.

53I note that the presence of a breach of trust is a very significant aggravating factor that is not a factor in many of the cases provided by counsel including M.V., Kavanaugh, Collier and Rafiq.

54The offender sent numerous explicit images and videos to the victim as well as actively attempting, on more than one occasion, to entice M.C. to have sexual relations not only with him, but also his adult partner and R.A. I find that it was not for lack of trying that no physical sexual activity took place, but instead, it was due to M.C.’s strength of character, even at that early age, that he was able to resist the offender’s repeated sexual advances. In my view, this highly aggravating and aggressive behaviour by the offender together with other circumstances including the serious breach of trust calls out for a penitentiary sentence. Importantly, evidence that the offender attempted to have sexual relations with the victim was not present in M.V., Kavanaugh, Collier and Rafiq.

55Other relevant factors that I have considered include that the offending behaviour occurred on several occasions over a relatively lengthy period, the offender was found guilty after a jury trial, and at no time has he ever expressed any remorse for his behaviour.

56I do however agree with the defence that several mitigating factors have lowered what otherwise would have been a very different sentence: (1) there was only one victim, (2) M.C. was older than many of the victims in other cases, (3) the relatively limited number of otherwise lawful images/videos sent, (4) that the images/videos were at the lower end of the sexually explicit range, and (5) no physical touching or threats took place against the victim. In relation to this last point, I emphasis that if any sexual touching had occurred between the offender and M.C., the sentence imposed would have been significantly higher.

57Further, the principle of restraint for this first-time offender is a significant factor when determining an appropriate sentence: R. v. Priest.

58Finally, although the offender does not accept responsibility for the offences, I have no evidence to suggest that there is a substantial likelihood that he will commit further crimes of a sexual nature against other children. As already indicated, he has been on bail for several years without issue.

59After considering the caselaw and attempting to situate this sentence within the relative range of cases involving child luring/making sexually explicit material available offences, I am of the view that the appropriate sentence in this case falls below the four (4) year sentence (before the reduction for totality) given for child luring by the Court of Appeal in the recent case of M.V. and above the two (2) years less one day sentence imposed in Rafiq and Collier.

60Focusing on M.V., even though this case did not have an offender who abused a position of trust or had attempted to meet the victim (also absent in Rafiq and Collier), I am of the view that the circumstances in M.V. are somewhat more aggravating than the case at hand. I say that because M.V., (1) involved two very young and immature children, (2) contained more sexually explicit and disturbing materials, (3) the offender sent child pornography to the victims and also directed both of the victims to create child pornography, (4) directed one of them to engage in indecent sexual acts, which he had images of, and (5) that due to the offender’s conduct it was reasonably foreseeable that the two young victims would suffer psychological harm.

61In my opinion, the 12 to 18 months in jail advocated by the defence is far too low especially after considering all the circumstances, such as the serious breach of trust between a teacher and student and the offender’s attempts to induce M.C. to have sex not only with him, but potentially two other individuals.

62Instead, I find that the Crown’s position of three (3) years jail is a reasonable one in all the circumstances even after considering the principle of restraint and the many mitigating factors that were highlighted by the defence.

63In conclusion, after balancing all the relevant aggravating and mitigating factors and considering the totality of circumstances together with similar sentences imposed on similar offenders for similar offences committed in similar circumstances, I find that an appropriate sentence in this case amounts to 36 months or three (3) years in the penitentiary on both counts 1 and 2, which will run concurrently.

Ancillary Orders

64Counsel agree that the following ancillary orders should be imposed in relation to this matter:

1. There will be an order that the offender provide a sample of his DNA in relation to counts 1 and 2 as they are both primary designated offences;
2. There will be an order pursuant to s. 490.012 of the Criminal Code that will require the offender to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for 20 years;
3. The victim fine surcharge is waived.

Brian D. Dubé