Court File and Parties
Court File No.: CR-23-16170 Date: 2025-09-19 Ontario Superior Court of Justice
Between: His Majesty the King – and – J.B., Defendant
Counsel: Samantha Saunders, for the Crown Sevag Yeghoyan, for the Defendant
Heard: April 4, 2025, by videoconference
Reasons on Sentencing
McCarthy, J.:
Introduction
[1] The Defendant, J.B., now appears before the court for sentencing.
The Offences
[2] After a judge alone trial, J.B. was found guilty of sexual luring contrary to s. 172.1(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. Specifically, J.B. was found to have communicated by means of telecommunication with a person who he believed to be under the age of 16 years for the purpose of facilitating the commission of an offence under s. 151 of the Criminal Code with respect to that person.
[3] The sequence of events making up the index offence took place between October 10 and 13, 2016.
[4] The court found that the Defendant had communicated in a graphic and suggestive manner with a fictional 14-year-old, who went by the name of Danae. The communication led to an arranged meeting for the purpose of sexual activity between the Defendant and Danae. The meeting never took place because it was orchestrated by members of a citizens' organization calling itself Creepbusters, which was responsible for creating the persona of Danae and engaging in communication with the Defendant.
The Crown's Position
[5] The Crown seeks a penitentiary sentence of between 3.5 and 4 years. The Crown also seeks ancillary orders for the taking of a DNA sample, a s. 109 firearms prohibition, registration under and compliance with the Sex Offender Information Registration Act, S.C. 2004, c. 10 ("SOIRA") for a period of 20 years, and an order under s. 161 of the Criminal Code with appropriate terms.
[6] The Crown cites the following aggravating circumstances:
At the time of the offence, the Defendant was both an elementary school teacher and a girls volleyball coach, leaving him in a position of trust and authority over many children in the community.
The Defendant understood Danae to be only 14 years old.
The content of the messages was sexually graphic and reached the level of outrageous and pornographic.
The messages led to an arranged meeting, which was clearly intended to result in sexual activities with a minor.
The Defendant's course of action was planned, deliberate, and sustained. This was not a case of impaired cognitive functioning or a temporary lapse in judgment.
The Defendant has not expressed any remorse or sought any rehabilitation.
The Defendant's Position
[7] The Defendant suggests either a conditional sentence of six months or an intermittent sentence, either of which will allow the Defendant to maintain employment. The Defendant argues the activity engaged in by the Defendant did not involve the sex trade, paid sexual services, or any actual harm or violence to a child. The Defendant has no prior criminal record and was a contributing member of society at the time of the index offences. He enjoys the support of colleagues and friends. The Defendant did not greatly contest the ancillary orders but suggested some minor variations to the Crown's proposed s. 161 order.
Principles of Sentencing
[8] Section 718.1 of the Criminal Code mandates that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
[9] Section 718.01 of the Criminal Code gives priority to the twin principles of denunciation and deterrence where the offence involves the abuse and victimization of children.
R. v. Friesen
[10] The seminal case of R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, provided sentencing courts with new direction when sentencing offenders in child sex abuse cases. At paragraph 5 of Friesen, the Supreme Court of Canada wrote:
[S]exual offences against children are violent crimes that wrongfully exploit children's vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament's sentencing initiatives and by society's deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately 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.
[11] I also note the following guidance the Supreme Court provided on assessing the moral culpability of sexual offenders who are caught in sting operations that do not involve actual child victims at paragraph 93 of Friesen:
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. 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 underage, 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. [Citations Omitted.]
Analysis
[12] It is difficult to overstate the seriousness of what the Defendant's intentions were. The 14-year-old Danae was fictitious, it's true, but that does nothing to diminish the moral blameworthiness of the Defendant. His unswerving design, attested to by both his lurid messages and determined conduct over the four days in question, was to meet up with and engage in all manner of sexual activities with a 14-year-old girl.
[13] That is egregious, intolerable, reprehensible, and despicable behaviour.
[14] It is also difficult to ignore that, as a teacher and sports coach, the Defendant was closely involved and had regular interactions with females who were the same age as the fictitious teenager. I recognize, of course, that Danae was not his student, pupil, or neighbour. Still, the explicit and pornographic content of his messages, considered alongside his efforts to have Danae travel to Niagara Falls before finally arranging a more local meet up, make it clear that he was prepared to go to great lengths to have sexual relations with a 14-year-old.
[15] This outrageous conduct deserves the strongest denunciation.
[16] A conditional sentence is not appropriate in these circumstances. It would serve to subvert the principle of general deterrence. In this regard, I am guided by the direction of the Court of Appeal for Ontario in R. v. M.M., 2022 ONCA 441, at paras. 13-18, that conditional sentences for sexual offences against children will rarely be appropriate and their availability must be limited to exceptional circumstances that render incarceration inappropriate.
[17] I am not persuaded that any exceptional circumstances exist here. J.B. was not a youthful offender. J.B. has expressed no remorse. There is no indication that he has gained any insight into the wrongfulness of his actions. His conduct over the offence dates was not inadvertent, casual, or accidental. There was nothing ambiguous or uncertain about his intentions or his goals. The suggestion that this is a "victimless crime" is a complacent one and takes no account of the exploitation of a minor, which this offender sought and fully intended to commit solely for his own gratification. Indeed, the Supreme Court rejected such a claim in Friesen, at para. 94, when they emphasized: "[t]o be clear, child luring should never be viewed as a victimless crime."
[18] Nor is an intermittent sentence proportional or fit. It would send the wrong message to the community and, most importantly, to would-be sexual predators who might not understand how wrong these crimes are. An intermittent sentence would not achieve the important goal of separating J.B. from society.
[19] All that said, some measure of restraint is in order. J.B. has no prior criminal record. There is no suggestion that he has reoffended or breached any release conditions. The character letters filed on his behalf suggest that he is a dedicated educator, a family man, and a pillar of the community. It can be argued that these crimes are out of character for him.
[20] In R. v. Moolla, 2021 ONSC 3702, my brother, Code J., was faced with a defendant who had pled guilty to a charge of sexual luring after being caught in a sting operation. The "victim" in that case was a fictional 14-year-old girl whom the Defendant arranged to meet with after an exchange of graphic sexual messages, which included a photograph of an erect male penis. The defendant in that case had a criminal record for non-sexual offences and was on probation at the time of his arrest. After a review of the governing case law, including both Friesen and R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, Code J. arrived at the conclusion that sexual luring generally attracted sentences of 3 to 5 years but at the same time noted that the upper end of that range was reserved for cases where an actual child victim is lured, because the harm is greater: see para. 25. The defendant in that case received a penitentiary sentence of 3.5 years.
[21] I would adopt the approach and apply the reasoning taken by Code J. in Moolla.
[22] In all of the circumstances, and having balanced the principles of sentencing, the particular aspects of these offences, and the aggravating and mitigating factors, as well as being guided by the direction provided by the Supreme Court in Friesen, I am persuaded that a penitentiary sentence is both just and fit.
Sentence
[23] J.B., please stand.
[24] J.B., I sentence you to 3 years in the penitentiary.
[25] In addition, the following ancillary orders are given:
In accordance with s. 487.051(1) of the Criminal Code, you shall submit for a sample of your DNA upon request.
There shall be a s. 109 firearms prohibition on you for a duration of 10 years.
Pursuant to s. 490.012 of the Criminal Code, you shall comply with the Sex Offender Information Registration Act for a duration of 20 years.
Pursuant to s. 161(1) of the Criminal Code and for a duration of 10 years:
(a) You shall not seek, obtain or continue any employment, whether or not 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;
(b) You shall not use the Internet or other digital network, unless you do so in accordance with conditions set by the court:
i. You may possess an internet capable device and use it to access the internet in accordance with the conditions below, however, you must do so on a device for which you are the sole owner and user;
ii. Your internet service must be in your own name or else provided through the owner/landlord of the residence in which you reside, your employer or the education institution you are attending, if applicable;
iii. You shall not use any encryption software or security program designed to prevent access to the contents of any internet capable devices or take independent action to encrypt any digital storage devices in your possession;
iv. You shall not install or permit to be installed on your internet capable device any software or service designed to defeat forensic analysis or the internet capable device;
v. You shall not use or permit to be installed on any device in your possession any scrubbing software or software that saves files in an encrypted fashion;
vi. You are not to directly or indirectly access any peer-to-peer file sharing networks (including but not limited to "KiK");
vii. You are not to use any telecommunication device to access the internet or other digital network in order to possess or access content that violates the law.
[26] That constitutes the sentence of the court.
McCarthy J.
Released: September 19, 2025
Note
As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.