R. v. Hathaway, 2018 BCPC 342

Citation: R. v. Hathaway 2018 BCPC 342 Date: 20181109 File No: 170152-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CURTIS ALLEN HATHAWAY ORAL REASONS FOR SENTENCE OF THE HONOURABLE JUDGE L. MROZINSKI Ban on Publication 486.4(2.1) and 486(2.2) CCC Restricted Access Counsel for the Crown: K. Dutton, R. Carot Counsel for the Accused: J. Dosanjh Place of Hearing: Victoria , B.C. Dates of Hearing: October 3, 4, 5, 2018 Date of Sentence: November 9, 2018

[ 1 ] THE COURT: Mr. Curtis Allen Hathaway, you are before the court today for sentencing for the offence of communicating with a person under the age of 18 years for the purposes of committing an offence under s. 163.1, contrary to s. 172.1(1) (

a) of the Criminal Code . This offence known colloquially as "child luring" is serious and sadly pervasive in our society. To address that reality, Parliament now requires sentencing judges to impose a custodial sentence of at least six months in duration upon

summary conviction of this offence. [ 2 ] At the outset, I want to reiterate for the record that, pursuant to s. 486.4 of the Criminal Code , I have ordered a ban on the publication of the name of the victim, M.M, his mother, N.M, and two other youths referred to in the materials, D.W. and T.S. [ 3 ] In this disposition hearing, Mr. Hathaway, the Crown seeks the mandatory minimum sentence, that is, a custodial sentence of six months, which the Crown submits is well below the low end of the range for sentencing for this offence. On your behalf, Mr.

Dosanjh seeks either a suspended sentence and probation, a conditional sentence order followed by probation, or alternatively if custody must be imposed, a sentence of 90 days to be served intermittently followed, naturally, by a period of probation. [ 4 ] The fundamental question before me on this sentencing is whether in your case the mandatory six-month sentence is a fit sentence. If I find it is not, I am asked to determine whether the six-month minimum would constitute cruel and unusual punishment in relation to the sentence I would have ordered.

If I find that the difference between the sentence I would have ordered and the mandatory minimum does not constitute cruel and unusual punishment, I must still ask, whether in the case of a reasonable hypothetical offender, the six-month minimum would violate the right against cruel and unusual punishment pursuant to s. 12 of the Charter .

If I find it would, the Crown does not seek to defend the minimum in this case pursuant to s. 1. [ 5 ] I accept, based on the doctrine of mootness, that if I were to conclude your sentence in this case must be at least six months in duration, it would not be necessary or, frankly, useful for me to consider the constitutional question regarding the validity of the mandatory minimum sentence for offences pursuant to s. 172.1 of the Code where the Crown has proceeded summarily. That certainly represents the views expressed by the Supreme Court of Canada in R. v. Lloyd , 2016 SCC 13 , at paragraph 18 .

It is, therefore, imperative that I determine first what is a fit sentence in this case given all the circumstances. [ 6 ] I will in that regard begin with an outline of the circumstances of the offence. These are set out, largely, in the agreed statement of facts which indicates, firstly, that at the material time in June of 2016, Mr. Hathaway, you were 55 years of age. Workwise, you were engaged in part-time employment as an [omitted for publication] with the [omitted for publication]. [ 7 ] I am going to pause here. Mr.

Hathaway, if you are having a hard time hearing, you can move ahead. [ 8 ] THE ACCUSED: Yes, Your Honour. [ 9 ] THE COURT: You are welcome to move up. [ 10 ] THE ACCUSED: Thank you. [ 11 ] THE COURT: Mr. Hathaway, let me know if you have any difficulty hearing what I am saying. [ 12 ] THE ACCUSED: Mm-hmm. [ 13 ] THE COURT: I will speak as loudly as I think appropriate and, if you need me to speak louder, just let me know.

Do you understand what I am saying? [ 14 ] THE ACCUSED: Yes. [ 15 ] THE COURT: Okay, all right. [ 16 ] I accept, as I say, based on the doctrine of mootness, that if I were to conclude your sentence in this case must be at least six months in duration, it would not be necessary or, frankly, useful for me to consider the constitutional question regarding the validity of the mandatory minimum sentence. That certainly, as I say, represents the views expressed by the Supreme Court of Canada in R. v.

Lloyd . [ 17 ] In terms of the facts, these are largely set out in the agreed statement of facts which indicates, firstly, that at the material time in June 2016, you were 55 years of age. Workwise, you were engaged in part-time employment as an [omitted for publication] with the [omitted for publication].

This employment made it possible for you to meet and interact with young persons and, frankly, to find out information about these young persons such as their personal contact numbers that you would not have easily obtained otherwise. [ 18 ] This personal information was made available to you through a web based app called the [omitted for publication]. The purpose of this app is to enable the Association to register [omitted for publication] and

schedule those persons in [omitted for publication]. Ideally, [omitted for publication].

The [omitted for publication] app can also be used by persons like yourself to connect with youth [omitted for publication] to move schedules around, but the intention and the only reason the personal information of the youth in this case was available to you was to enable that person to participate in this part-time work. [ 19 ] I will also say that the app has a certain imprimatur of legitimacy and young persons would feel safe leaving their personal contact information on the site with no expectation that it would be abused by others also authorized to use the app.

Nonetheless, s. 172.1 of the Code itself stands as a reminder to children, their parents, teachers, and caregivers that they must not let their guard down or relax their vigilance. It is a sad, but nonetheless true statement. [ 20 ] In this instant, Mr. Hathaway, while working as an [omitted for publication], you saw M.M., then aged 13. You had never met

this youth and he, in turn, has never met you. Prior to this offence, he had no knowledge of you, but you did have some knowledge of him in that you had seen him and held the belief that he was 13 or 14 years old. Still, you and M.M. were and are virtual strangers. Your connection to him was slight. That fact makes even your earliest text messages suspect, though admittedly were it not for the later messages, their sub-context might well have appeared unremarkable. [ 21 ] In this instance, Mr.

Hathaway, you began what you thought was a communication by text with M.M. on Friday, June 24, at around 7:00 p.m. your time. Your first two text messages seemed legitimate enough. You wanted M.M. to [omitted for publication] in for a [omitted for publication] and you were prepared to offer him something for that favour. By Friday at 11:02 p.m., you received a text that you believed was from M.M. telling you that he was out of town and wishing you luck. The text had actually been sent from [omitted for publication] where M.M. and his family were vacationing.

It was sent on Saturday at 7:02 a.m. their time. [ 22 ] In your next text sent at 8:49 a.m. on Saturday your time, you thanked M.M. for getting back to you and then, oddly, given that you had no real personal connection with him, you texted the words, "enjoy yer summer/need want anything let me know." As I say, were it not for the subsequent messages, this may have gone unnoted, but it is ominous given what follows. [ 23 ] Without hearing from M.M. after your text sent at 8:49 a.m. your time, you sent another text on Tuesday at 7:55 p.m.

In that message, you addressed M.M. familiarly as "Sport" and update him on the [omitted for publication]. You then ask him, "When do U get back?" [ 24 ] You do receive a reply to this text which you again assume was written by M.M. That reply is received at 12:42 a.m. your time on Wednesday, June 29. You reply to that text on the same day at 6:33 and as follows, "K lemme know when u’s back?". [ 25 ] Even outside the context of the subsequent text messages, this message is unusual. In a few short text messages, Mr. Hathaway, you have moved the conversation from one between strangers simply looking to

schedule a [omitted for publication] to a familiarity with the youth not remotely justified in the circumstances. A friend much closer to M.M.'s age could be expected to say, "Let me know when you're back," but the same request coming from a much older stranger is most unusual. It has the hallmark of an attempt at manipulation, an attempt to establish a closeness with the youth with the benefit of the near anonymity the electronic device you were communicating with provided you. [ 26 ] Commencing at 7:10 p.m., Wednesday, June 29, you then sent the series of text messages which are the subject of these charges.

As in every sentencing for this offence, the details matter. The entire series of texts, including the text messages that are the subject of this charge, are in evidence and marked as Exhibit 6 in this hearing.

As the agreed statement of facts provides, at 7:00 p.m. on the evening charged, just hours after asking M.M. to let you know when he is back from vacation, you send an expletive laden text in which you ask the youth for a "selfie body builder pose in yer shorts no shirt - (hot right?)." This is followed by a text including more expletives and the words, "teens luv 2 cuss – talk dirty & sexylike/SPORT delete yer chat logs everyday or 2 AND mom’ll never kno/THEN can talk anyhows U wants”. [ 27 ] This in turn is followed by another text within the same timeframe stating, "Choose yer format by what selfie U send me?

Then ill kno wes doing cussin & such/knos u youll pick t cussin & sexy dirty talk”. This is followed by a text of what is commonly known as an emoji of a smiling face. [ 28 ] There is no response from M.M. as unbeknownst to you he was vacationing in [omitted for publication] at the time with his family and, presumably, no one was looking at incoming texts at [omitted for publication] their time. [ 29 ] A few hours later at 10:17 p.m., you sent a text that read, "BF?” [ 30 ] At 6:43 a.m. on Thursday morning, you sent the youth a text that read, "?? Late night? Ya -- hot right?

EVERYONE stays up late -- gets cooler then//, so do yer nude selfie soon horny one/find t paperclip-click- it menu for marko pops up – pick camera – all set 4 sexy boy”. [ 31 ] Your last text to M.M. was sent at 7:29 p.m. on Saturday, July, 2. You had by this time not heard any reply regarding your previous five texts.

You write first in capitals, "DON'T HAVE TO DON'T WANNA THEN DON'T PLEASE/Bad dog had beers & made this mess/sorry about that”. [ 32 ] When M.M.'s mother, N.M., whose cell number you were texting, finally saw this string of messages, she reported it to the [omitted for publication] who in turn urged her to report you to police. It is a fact in this sentencing that the youth in question did not receive any of these text messages. Rather, all were viewed by N.M. who provided a victim impact statement that I will address in due course. [ 33 ] Following your arrest for this offence, Mr.

Hathaway, you provided a warned statement to police in which you said that you were very drunk when you sent the messages and realized you had done so the next day. You claim to know it was really bad and that you had screwed up. Although you deny being attracted to young boys, your explanation for asking for a nude photograph was that you thought it would be fun, a fun thing. You also told police, and assert in this hearing, that you are diagnosed as suffering from schizophrenia. [ 34 ] This then brings me to your own personal circumstances, Mr.

Hathaway, a matter critical to this sentencing, and somewhat controversial in this case. Your mental state and personal history were examined at some length and the results of both are set out in the presentence report prepared in January of this year as well as in a psychological report prepared for the purposes of sentencing including to assess your risk of reoffending and to recommend treatment. [ 35 ] By the time the presentence report was prepared, you were then 56 years of age and still living with your wife of 10 years here in Victoria in the same apartment you two have shared for all that time.

Your residence is stable. In my view, as well, you are in what would commonly be considered a stable relationship. You are described by your wife, Mrs. Hathaway, as being a loving husband whose behaviour has never caused her any concern.

[ 36 ] Your social life is described as limited consisting primarily of spending your free time with your wife. Prior to your arrest for this offence, you report having been heavily involved with [omitted for publication] in this community. Other than that, you report spending most of your time on the Internet and/or watching television. [ 37 ] Though only 56, you report having been retired for some 15 years from your previous employment in labour, construction, and the food industry.

Having said that, the presentence report writer indicates Corrections files indicate you have collected social assistance for most of your life. [ 38 ] The presentence report writer indicates you reported as having been diagnosed with schizophrenia in 1996. It is a fact in this sentencing that you have been prescribed Seroquel, an antipsychotic used for sedation, at a dosage of 200 milligrams per day. Seroquel, you say, has been prescribed to you to manage your schizophrenia. Mrs.

Hathaway reported to the presentence report writer that she has not witnessed a single symptom of your schizophrenia over all these years. She did confirm that you take your medication regularly. In addition, Mrs. Hathaway reported that you drank alcohol, though not to access, in her view, and moreover used alcohol to cope with the stress of these proceedings. [ 39 ] You reported that on the night of the offence, you drank following an argument with your wife and you believe you were not in your right mind when you sent those first four texts. You attribute your conduct to your level of alcohol consumption.

You denied being aroused during the offence and offer that, "Maybe it was a joke that I found funny." [ 40 ] You advised the writer of the presentence report that while you accept it would have been awful had the youth seen your text messages, you believe your original apology to M.M. in which you attribute your conduct to "bad dog having beers," was sufficient. You characterized the court's involvement as unfair and excessive. You believe a jail sentence, which you fear, in any event, would be completely unjust and that any community supervision would also be completely unfair.

While you attribute your conduct at the material time to alcohol consumption, you do not see your consumption as problematic, nor do you believe you require substance abuse treatment or programming. [ 41 ] In regard to the psychological component of these reports, you were initially assessed by Dr. Lopes as representing at above average risk for reoffending. Dr. Lopes later modified this to a low to moderate risk of reoffending. The modification was, as I understand it, based on a misunderstanding by Dr. Lopes concerning a prior conviction for which you received a conditional discharge.

That being the case, it should not have factored into the risk assessment, just as you are being sentenced here today as a first time offender. [ 42 ] Dr. Lopes was called to testify in this hearing and, among other things, was cross-examined with respect to the raw data that would have gone into his assessment as well as his rating of you on the Static-99R Coding Form. This was for the purpose of understanding the original assessment and the reduction of your risk from above average to low to moderate, a difference of exactly one point. [ 43 ] First, with respect to the raw data or, more accurately, Dr.

Lopes' notes, I have no difficulty with Dr. Lopes' explanation that the raw notes, the notes he made on the file before meeting with you, were entered into his electronic file. Those notes were then intermingled with the data gathered by Dr. Lopes in his interview with you and folded into the final assessment. I accept that the assessment includes the raw data, albeit in polished form. [ 44 ] With respect to your risk assessment, it was put to Dr. Lopes that an error with respect to a previous conviction would be significant. When asked why that correction resulted in a reduction of only one point, Dr.

Lopes explained that the point represents an actuarial measure. Without taking issue with the entirety of the test itself, which was not challenged, I find no basis to reject the evidence that you represent a low to moderate risk to reoffend based on the testing parameters. [ 45 ] What was most important about Dr.

Lopes' report, and his entire testimony, was his evidence regarding your diagnosis of schizophrenia, your medication, and the potential or possible effects of that medication when mixed with alcohol as a means of explaining or, frankly, mitigating your offending behaviour. [ 46 ] I find on the whole of the evidence that although you have been largely asymptomatic for years, you were diagnosed with schizophrenia either in 1994 or 1996, the date varies in the reports. Still, that diagnosis is called into question by Dr.

Lopes and you, yourself, report that at best the diagnosis was "mid-level schizophrenia that can be controlled by medication." That medication is Seroquel which, at a dose of 200 milligrams per day is, as Dr. Lopes testified, a low dose. [ 47 ] Still, accepting the diagnosis of mid-level schizophrenia that has been controlled by medication, the larger question is what role that medication, that diagnosis, and your stated alcohol consumption had on this offending behaviour.

The evidence that I accept is that the offending behaviour was not caused by your schizophrenia or your mixture of the alcohol and the Seroquel. Rather, I accept Dr. Lopes' opinion that, at best, the alcohol and drug mixture acted as a disinhibitor. I accept that it was in this state that you sent the text messages that forms the nucleus of this offence. [ 48 ] Those messages, particularly those sent on the evening of June 9, are disturbing and concerning. You admit it would have been awful had M.M. seen them.

He did not, but his mother, whose phone you were texting, did and N.M. has drafted a victim impact statement in which she describes the impact of those messages. [ 49 ] Even without reference to N.M.'s victim impact statement, I have no doubt the text messages would have shocked and, frankly, sickened any parent. These messages brought home the point I made at the outset of these reasons, that, sadly, parents or other caregivers and, frankly, our children must always be wary and vigilant.

The opportunities for contact with a child abound in the electronic age in ways that would not have been conceivable even 20 years ago. [ 50 ] Even still, the impact is as you would expect at any point. You were in a position of trust, Mr. Hathaway. You had access to M.M.'s contact information because you were entrusted with that information by virtue of your position with the [omitted for publication]. That trust has been undermined and N.M.'s description of the fallout is unsurprising. She writes that as a result of your

conduct, she is now hypervigilant. She finds that she now distrusts adults who interact with her children. [51] In turn, N.M. now discourages her children from such interactions including involvement in [omitted for publication] and workas [omitted for publication]. This may not sound dramatic, but the effect is to circumscribe the family's experiences, to limit theopportunities for the children, to keep everyone in a state of hyperawareness and distrust, and the inevitable stress that comes with such astate.

It signals to this family and to other families that our children are not safe out in their community even when they are engaged inprosocial activities such as [omitted for publication]. This offending conduct tears at the very fabric of our community. [52] Bearing all of this background in mind, it falls to this court to determine the appropriate sentence in this case. Earlier in thesereasons I set out the sentencing position of the Crown as well as your own, Mr. Hathaway. The Crown seeks the mandatory minimum ofsix months. You take the position there should be no custodial sentence.

Alternatively, if there is, it should be no more than 90 daysthus enabling you to serve your sentence intermittently. [53] In this, as in every other sentencing, this court has to be guided by the sentencing provisions set out in s. 718 and 718.2 of theCode, and they provide as follows: 718 The fundamental purpose of sentencing is ... to contribute, along with crime prevention initiatives, to respect for the law and themaintenance 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 ... (

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. [54] Other relevant sentencing provisions include 718.2(

a) which provides that: 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 offenceor the offender ... (

b) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances ... (

c) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and (

d) all available sanctions, other than imprisonment, that are reasonable in the circumstances ... should be considered for all offenders,with particular attention to the circumstances of Aboriginal offenders. [55]

Section 718.1 of the Code states that the fundamental principle of sentencing is that: A sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. [56] In considering this particular offence, the sentencing justice in R. v. Gucciardi, 2017 ONCJ 770, wrote at paragraph 42 that inassessing the gravity of the offence, the court has to consider, among other things: ... any minimum and maximum punishments mandated by Parliament; the threat [of the offence] to the public and its impact on the community ... [57] I have noted that upon

summary conviction for the offence of child luring contrary to s. 172.1 of the Code, Parliament hasinstituted a mandatory six-month custodial sentence. It is an indication, assuming one is needed, of the seriousness of this offence. [58] With regard to the sentencing objectives set out in s. 718.2, not all will necessarily apply in any given sentencing. Generallyspeaking, what objectives a court chooses does depend on the circumstances of the offence and the offender. However, certain offencesattract, in the established case law, certain sentencing principles. [59] For the offence of child luring contrary to s. 172.1(1)(

a) of the Code, it is well established that the offence of child luring mustbe addressed seriously by the courts. As the court in R. v. Folino , wrote as long ago as 2005 at paragraph 25: Children, as vulnerable members of our society, must be safeguarded against predators who [use] the Internet to lure children intosituations where they can be sexually exploited and abused.

In most circumstances involving the offence of child luring, the sentencinggoals of denunciation and deterrence will require a sentence of institutional incarceration. [60] The court in Folino then added that it was only in the rarest of cases that something less than a custodial sentence such as aconditional sentence order would be appropriate in respect of the offence. I will return to that issue shortly. [61] That deterrence and denunciation must be given primary consideration on this sentencing is also supported by s. 718.1 of theCode.

Numerous courts sentencing on this offence have reiterated this including the court in R. v. Rafiq, 2015 ONCA 768, at paragraph

27 ; R. v. McLean , 2016 SKCA 93 , at paragraphs 19 and 20 ; R. v. Paradee , 2013 ABCA 41 , at paragraph 13 ; R. v. Harris , 2017 ONSC 940 , at paragraphs 11 to 13 ; R. v. Aimee , 2010 BCSC 1463 , at paragraph 44 ; R. v. Woodward , 2011 ONCA 610 , at paragraph 39 ; R. v. Alicandro , 2009 ONCA 133 , at paragraph 49 ; R. v. Gucciardi , as I have said, at paragraph 45; R. v. Randall , 2018 ONCJ 470 , at paragraph 13 ; and R. v. S.S., 2014 ONCJ 184 , at paragraph 41 . [ 62 ] At the same time, this court cannot lose sight of the objective of rehabilitation, as well. Mr.

Hathaway, you do come before this court as a first-time offender at age 56 and, while you consider you do not need treatment, it does not follow that you would not benefit from it. [ 63 ] In determining what constitutes a just sentence for this offence, that is to say a sentence that balances the gravity of the offence against the moral culpability of the offender, many of the cases I have just cited have considered the nature and purpose of the offence captured by s. 172.1(1)(a). Of the many statements in the case authorities, I would simply reiterate the following from the reasons in R. v.

Paradee at paragraphs 11 and 12 . There, the court writes: [11]

Section 172.1 makes it an offence to communicate with an underage person for the purpose of facilitating the commission of any one of a number of sexual offences, including accessing child pornography. The Supreme Court of Canada has described internet luring as a preparatory crime that “criminalizes conduct that precedes the commission of the sexual offences to which it refers”, in order to “close the cyberspace door before the predator gets in to prey” ... [12] Luring is dangerous and, as the Crown points out, serious.

It involves pre-meditated conduct specifically designed to engage an underage person in a relationship with the offender, with the goal of reducing the inhibitions of the young person so that he or she will be prepared to engage in further conduct that is not only criminal but extremely harmful. Parliament has recognized that the internet has infinitely expanded the opportunity for predators to attract or ensnare children.

The anonymity of the internet allows the predator to hide his or her true identity, to mask predatory behaviours through seemingly innocuous but persistent communication, and to count on the victims letting their guard down because the communication occurs in the privacy and supposed safety of their own homes. A proportionate sentence for internet luring must [always] recognize the serious nature of this offence. [ 64 ] I pause to note that, at paragraph 92 of R. v. Rayo , 2018 QCCA 824 , the court also notes that this offence is no less serious if you use your own name or remain anonymous.

Another theme in the case authorities is the pervasive nature of this offence, particularly in the electronic age. As an example, the court in R. v. Alicandro wrote at paragraph 36 that: Cyberspace ... provides abuse-intent adults with unprecedented opportunities for interacting with children that would almost certainly be blocked in the physical world. The rapid development and convergence of new technologies will only serve to compound the problem.

Children are the front-runners in the use of new technologies and in the exploration of social life within virtual settings. [ 65 ] The serious and pervasive nature of this offence obviously commands a significant response from the courts called on to sentence offenders for child luring. At the same time, sentencing is an individual exercise in that every sentence, despite the offence at issue, is unique because the sentence has to reflect not only the seriousness of the offence, but the moral culpability of the offender. Additionally, all sentences are informed by both aggravating and mitigating factors.

Such factors can dictate the length of a sentence and, for example, where the offender lies relative to the range of sentencing established in the case law for a given offence. [ 66 ] In this sentencing, Mr. Hathaway, I am urged to find that your moral culpability for this offence is low, that is, that the mixture of alcohol and Seroquel and/or your schizophrenia is the cause of this behaviour. In this regard, I have already noted that I accept the evidence of Dr. Lopes that your texting was in no way caused by your schizophrenia.

Moreover, even accepting that you were as intoxicated as you told police you were, I find at best, again based on the evidence of Dr. Lopes that this served to disinhibit your behaviour. It follows from this lack of causal connection between your offending behaviour and your mental illness that your schizophrenia cannot be considered a mitigating factor in this sentence, and I rely on R. v. Swaby , 2017 BCSC 2020 , at paragraph 102 for that. [ 67 ] The offence of child luring generally involves a high level of moral culpability in that this is an intentional act.

There is, as in this case, an intention to target a child. Here, the intention was directed toward a specific child. The texting at issue is deliberate and it is manipulative. There is an element of grooming, of that I have no doubt. Mr. Hathaway, the fact that you were disinhibited by a combination of alcohol and Seroquel does not, in my view, reduce your moral culpability. [ 68 ] Moreover, you say your apology to M.M. should be enough, that it implicitly constitutes an acknowledgment on your part that your behaviour was wrong and potentially harmful.

I acknowledge you now say it would have been awful had he seen the text, but your apology text is no apology. It is not even an admission that you unequivocally resile from your earlier texts. Rather, it is equivocal, "Don't wanna, don't have to." In other words, depending on the views of the youth, you might have carried on with this communication. [ 69 ]

Section 718.2(

b) provides that: ... a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances ... [ 70 ] That brings me to the range of sentencing for this offence. In that regard, I have been provided with a number of case authorities. I have read them all, but I will not refer to all of them in these reasons. I accept, firstly, that the range, as set out in the case authorities for this offence is a custodial range from 12 to 24 months. In R. v.

McLean at paragraph 67 and 68 , the court made mention of two authorities in which the range has been commented on as follows: [67] In Woodward , Moldaver J.A. (as he then was), commenting on the range for luring, stated: [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 that 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. [68] The range for luring was also addressed in R v Rafiq ... where the accused, a 24-year-old, pleaded guilty to one count of internet luring where he communicated sexually explicit content to a 12-year-old girl. The Court noted that a conviction for internet luring would normally require a period of significant incarceration and that this principle should be departed from only in the “rarest of cases”.

The Court allowed the Crown’s appeal and ordered the offender to serve the rest of his two years less a day conditional sentence order (CSO) in custody. [ 71 ] This range has been commented upon with approval by numerous courts including the sentencing courts in R. v. Aimee at paragraph 57 as well as R. v. Gucciardi . Within or on either side of the range, there is a wide array of sentencing decisions for this offence ranging from the imposition of a conditional sentence order up to the far end of the custodial range. [ 72 ] Although I will now address your first submission, Mr.

Hathaway, for a suspended sentence, I note that there are no cases before me in which any sentencing court has granted a suspended sentence for this offence. [ 73 ] In instances where a conditional sentence order is made unavailable by Parliament, sentencing courts have imposed suspended sentence for offenders in drug trafficking cases in exceptional circumstances. This was the case in R. v. Voong , 2015 BCCA 285 . Voong is a decision involving sentence appeals by the Crown from sentences received by four offenders, all of whom received suspended sentences and probation.

Voong holds that, absent exceptional circumstances, even a first-time offender, convicted in a dial-a-dope operation can expect to receive a custodial sentence of four to six months.

As the court wrote at paragraph 45, the exceptional circumstances must engage the principles of sentencing to a degree sufficient to overcome the application of the main principles of deterrence and denunciation by way of a prison sentence. [ 74 ] Those exceptional circumstances or at least some exceptional circumstances are set out at paragraph 59 of Voong as follows: ... absent exceptional circumstances, the sentence for a first offence or with a minimal criminal record, dial-a-dope drug seller will be in the range of six to eighteen months imprisonment, depending on the aggravating circumstances.

Exceptional circumstances may include a combination of no criminal record, significant and objectively identifiable steps towards rehabilitation for the drug addict, gainful employment, remorse and acknowledgement of the harm done to society as a result of the offences, as opposed to harm done to the offender as a result of being caught. This is a non-exhaustive list, but at the end of the day, there must be circumstances that are above and beyond the norm to justify a non-custodial sentence.

There must be something that would lead a sentencing judge to conclude that the offender had truly turned his or her life around, and that the protection of the public was subsequently better served by a non- custodial sentence. However, Parliament, while not removing a non-custodial sentence for this type of offence, has concluded that CSO sentences are not available. Thus, it will be the rare case where the standard of exceptional circumstances is met. [ 75 ] In this case, Mr.

Hathaway, I find there is no evidence to suggest that the protection of the public would be better served by my imposing a suspended sentence in your case. The case for the imposition of a conditional sentence order in this matter is really no different, in my view, than the argument for a suspended sentence. It is the case with a conditional sentence order, as with a suspended sentence, that both can serve the principles of deterrence and denunciation.

However, as with a suspended sentence, in cases such as Voong , a CSO for this offence is appropriate only in the rarest of cases when such a sentence can fulfill the objectives of denunciation, deterrence, rehabilitation, reparation, and promotion of responsibility, and a cite for that is R. v. Somogyi , 2011 O.J. No. 253 , at paragraph 21 . [ 76 ] In this sentencing, I was referred to several authorities in which persons convicted of the offence of child luring were sentenced to a conditional sentence order. The most often cited is the decision of the Ontario Court of Appeal in R. v.

Folino where the court imposed an 18-month conditional sentence order. The facts in Folino are egregious. The accused in Folino admitted at the sentence hearing to having engaged in sexually explicit conversation with a young girl whom he thought was named Jessie, aged 13. In fact, Jessie was an undercover RCMP officer. The communications were explicit. The consisted of six live chats and eight emails. He sent the child a photo of his exposed penis. He arranged to meet for a sexual encounter and he was arrested at the meeting location. [ 77 ] The sentencing judge sentenced Mr. Folino to nine months in custody.

Although a conditional sentence order was available at that time, the sentencing judge found it was not appropriate. On sentence appeal, the court held that a number of mitigating factors favoured a conditional sentence order and the sentence was overturned and replaced. Those factors were as follows. Mr. Folino was a first-time offender. He was described as a good father, a good husband, a good worker. He had the support of his family. Expert evidence indicated Mr. Folino was suffering a major depressive illness and was under significant stress at work at the time of the offence. Mr.

Folino took full responsibility for his actions. He underwent psychological therapy and counselling. He was found to be a negligible risk for reoffending. There was no evidence of pedophilia. All of these mitigating factors were present at the initial sentencing hearing, yet failed to persuade the sentencing judge to order a conditional sentence order. [ 78 ] The court also held that fresh evidence on appeal revealed that Mr.

Folino was in a very fragile mental and physical state, that incarceration raised a serious risk of fatal dissociation culminating in possible suicide, that his three young children would be harmed by his incarceration, and that having been assaulted in custody after the sentence hearing, he had developed moderate to severe hypertension and tachycardia. He had, prior to the sentence appeal, suffered an acute angina attack.

In addition, there was new evidence that while any period of incarceration would be extremely harmful to the accused, any period of incarceration would have no rehabilitative value as he posed no risk of repeating the offence. [ 79 ] In R. v. Somogyi , the accused was sentenced to a 22 month conditional sentence order on a conviction for three counts of luring two children under age 14. He received a 45 day custodial sentence for possession of child pornography. As in many such cases, the children Mr. Somogyi thought he was communicating with were actually undercover officers posing as 13-year-old girls. Mr.

Somogyi engaged in two explicitly sexual conversations with one person whom he believed was under age 14, and several with another young person whom he also believed to be age 13. In one instance, Mr. Somogyi sent pictures of himself masturbating. He encouraged his victim to engage in sexual conduct. He made no attempt to meet the victims. [ 80 ] On sentence appeal, the sentence was upheld even though the court accepted the range of sentencing of 12 to 24 months and the

notion, in principle, at least, that luring offences must attract an actual custodial sentence. At the end of the reasons, even though the sentence was upheld, the sentence appeal judge acknowledged it was a difficult case. The court added at paragraph 58 that, had a period of incarceration been ordered for the luring convictions, it would have been in the range of 12 months, consecutive to the sentence for possession of child pornography. [ 81 ] The circumstances that made the case rare and thus appropriate for a conditional sentence order are found throughout the reasons. They include Mr.

Somogyi's good behaviour on bail, that he sought and attended treatment as a condition of his bail, that he had significant family support from his wife and his father, that he was motivated to get help, that he acknowledged what he did was wrong, and not insignificantly, that Mr. Somogyi met the criteria for a diagnosis of Asperger's syndrome. [ 82 ] Specifically, the court heard expert evidence to the effect that Mr.

Somogyi also lacked in social skills, that he had difficulty integrating with his peers, that while he was of average intelligence, he functioned socially like a 12-year-old, that he was very naïve, socially awkward, had difficulty communicating and difficulty reading social situations, and that he was of low risk of reoffending. In addition, Mr. Somogyi suffered from Crohn's disease and had had five major blood transfusions the previous year. Experts at the hearing expressed serious concern for Mr.

Somogyi's health and safety were he to be incarcerated. [ 83 ] At paragraph 45 of that decision, the court set out what it referred to as a cluster of factors referred to by Watt J.A. in El-Jamel constituting the rarest of cases as outlined in the Folino decision. These are: A negligible risk of recidivism. Acceptance of responsibility. Participation and progress in treatment for management of stress. A devastating impact of proceedings on [the accused] and his family.

Assaults by other inmates while in custody . . . uncontradicted evidence of a . . . fragile mental and physical state due to the proceedings and of the . . . effect [on the family if the accused is incarcerated. [ 84 ] These factors are not exhaustive as, obviously, no such list could be, but what is obvious is that a CSO is available for this offence only when a unique set of factors presents itself to the court. [ 85 ] Another authority was provided to me in which our Court of Appeal granted a CSO in R. v. J.L.M , 2017 BCCA 258 .

The circumstances of the offending behaviour, which included communicating with a person under age 18 for the purposes of obtaining sexual services, is much more egregious than in your case, Mr. Hathaway. In J.L.M. , the accused, a member of the Cree First Nation in Saskatchewan, was the maternal uncle of the victim. The two not only communicated, but the accused paid the victim for sexual services. [ 86 ] On appeal, the majority held that the sentencing judge erred in fundamentally misconstruing the approach a judge must take when sentencing Aboriginal offenders.

The accused had established that his unstable and abusive childhood flowed directly from the intergenerational effects that colonialism and residential schools had on his family and his community. The accused also suffered from high blood pressure, sleep apnea, intestinal disease, and degenerative disc disease. He took 10 different medications and relied on a cane and motorized scooter due to decreased mobility and chronic pain. He was diagnosed with chronic depression, anxiety, and antisocial personality disorder. He was, quite likely, FAS as his mother drank throughout her pregnancy.

He was diagnosed as a low risk to reoffend, but was required to continue with his treatment. In finding a conditional sentence order appropriate, the court focused on all of these factors, but most particularly, as noted at paragraph 54, on the accused's Aboriginal heritage. [ 87 ] In considering these cases, I must ask myself whether the circumstances in the case before me are similarly so unique as to meet the test for the rarest of cases in which a conditional sentence order would be an appropriate sentence for this offence. Here, Mr.

Hathaway, there are several factors which I would characterize as mitigating. They include that you are a first-time offender, that you have the support of your wife, that you have accepted responsibility for the offence to the extent that you have pled guilty, and you go so far as to acknowledge it would have awful had M.M. seen your text. You have, in addition, done well while out on bail these last two years. [ 88 ] It is not mitigating, but I do accept you were disinhibited by the consumption of alcohol mixed with your medication.

I acknowledge also that you presented at the sentencing hearing and here today as someone whose mobility is limited. I note in one of your text messages to M.M. you referred to your inability to [omitted for publication] a number of [omitted for publication] given your knees. I note also, Mr.

Hathaway that you had been diagnosed as a schizophrenic and you are on medication for that, but as I find it was not causative of this offence, I do not consider it a mitigating factor. [ 89 ] The range and breadth of circumstances present in the cases cited before me in which the courts have granted a CSO for this offence are simply not present in this case. Here, I must ask myself, given the primary sentencing objectives of deterrence and denunciation, whether a CSO is appropriate. Certainly, your sentence would not preclude it.

I will accept, also, that you could safely serve such a sentence in the community given your conduct on bail. [ 90 ] What I cannot accept is that, in the circumstances of this case, a CSO would meet the sentencing principles of deterrence and denunciation. You represent, I find, more than a negligible risk of recidivism. Apart from pleading guilty, you do not accept the extent of the harm caused by this offence, that a person such as yourself who commits this offence needs treatment, and that to the extent alcohol played a role in this that you need substance abuse treatment.

There is an admission of guilt in this case, but no insight and no commitment to treatment. In those circumstances, a CSO would not send the necessary message of specific deterrence and/or denunciation. [ 91 ] For these reasons, I would not impose either a suspended sentence or a conditional sentence order in this case. The sentence must be a custodial sentence to reflect both the seriousness of the offence and your level of moral culpability. [ 92 ] This then leaves the question of the length of sentence.

Again, this is informed by the aggravating and mitigating factors and by other sentences for this offence, especially those committed in similar circumstances. I have already set out the mitigating factors in this case. The aggravating factors include the age of the youth, that you were in a position of trust, that there was an element of grooming to the messages, first in your attempt to become oddly familiar, second in your instructing the youth how to hide his text messages from his

mother, and thirdly that you sought a photograph from the youth that would constitute child pornography were you successful in your importuning. [ 93 ] In this hearing, Mr. Hathaway, I have, as I have noted, been provided with a number of case authorities in which offenders have been sentenced to a period of custody well over that sought by the Crown in this case. At the same time, other cases have been provided in which offenders have been sentenced to much less time. Your counsel submits that in many of these cases the facts are much more egregious.

He urges the court to impose a sentence, if the court must impose a custodial sentence at all, well below the six-month minimum based on these examples. [ 94 ] In R. v. Morrison , 2017 ONCA 582 , the accused was sentenced to four months in custody for the offence of child luring. The Crown relies on this in support of its sentencing position of six months while Mr. Dosanjh points out that the facts there were far more egregious and yet attracted a sentence of less than six months. I agree that the facts in Morrison are much more egregious than here. [ 95 ] Mr.

Morrison posted an ad on Craigslist entitled "Daddy looking for his little girl." An undercover officer seeing the ad suspected the author wanted to meet a young girl. The officer then began a conversation with Mr. Morrison, posing as Mia, and clearly stating she was 14. Thus began a series of sexually explicit conversations over a period of some 10 weeks. A meeting was suggested. Mr. Morrison asked for pictures of the young girl and for her phone number. The correspondence ended with what appears to be Mr. Morrison becoming suspicious of Mia. Clearly, in Morrison , the correspondence went on longer.

There was, as here, an attempt to obtain a photograph, but unlike this case, in Morrison , there was a request for a meeting. [ 96 ] But for the fact the court accepted Mr. Morrison's defence that he thought he was engaged in role-playing, the intent ought to have garnered a much more robust sentence. However, the court sentenced Mr. Morrison on the basis he negligently failed to ascertain the age of his interlocutor. As such, Mr.

Morrison's mens rea was much reduced and that accounts for the sentence. [ 97 ] Before me, the Crown contrasts the circumstances in Morrison where, despite having been found negligent, the accused still received a four-month custodial sentence. The Crown submits your culpability being much greater, the sentence, too, must be greater than four months. [ 98 ] In contrast to the decision in Morrison , the offenders in both R. v. Gucciardi and R. v. Harris , 2017 ONSC 940 , both of whom also connected or at least attempted to connect with young persons through Craigslist, received much more significant sentences. Mr.

Gucciardi, a defendant aged 60 at the time of the offence with no record, married with three children, having the support of his family and community members who was engaged in extensive counselling after his arrest, was remorseful and found not likely to reoffend, was nonetheless sentenced to 12 months in custody after conversing with an undercover officer whom he thought was a 14-year-old girl. The luring conduct was deliberate, it took place over a period of three weeks, Mr.

Gucciardi sought photographs of the young person, he sent her photographs of himself masturbating, he engaged in grooming behaviour, and he arranged a meeting. [ 99 ] Mr. Harris came before the court as a first-time offender, aged 57, with a history of childhood abuse, an addiction to alcohol, and a disability due to a stroke. He was, as the result of the offence, ostracized from family members. Like Mr. Gucciardi and Mr. Morrison, Mr. Harris attempted to connect with a young person through Craigslist. He eventually communicated with an undercover officer posing as Katie, age 15. Mr.

Harris initiated a number of sexually explicit conversations with Katie, he engaged in grooming conduct, and he arranged a meeting where he was arrested. Mr. Harris was sentenced to 18 months in jail. [ 100 ] The facts in each of these cases are more egregious than in your case, Mr. Hathaway, but at least in the case of Mr. Gucciardi, there are several mitigating circumstances not present here. Mr. Gucciardi engaged in extensive counselling. His counsellor, while not having a provided a risk assessment, told the sentencing court he was confident Mr. Gucciardi had the knowledge and skills to avoid reoffending.

There were few mitigating factors in Harris thus the sentence of 18 months. [ 101 ] The accused in R. v. Randall , 2018 ONCJ 470 , was sentenced to 90 days in custody for the offence of child luring and the facts in Randall are, I agree, more egregious than here, as well. Mr. Randall, too, sought to connect with "girls of any age" on the Internet. An undercover officer obliged him by posing as a 15-year-old girl named Cara. Over a 48-hour period, Mr. Randall engaged in sexually explicit discussions with Cara. He engaged in grooming behaviour. He sent the girl videos in which he exposed himself.

He expressed an interest in bondage and arranged to meet her. He was arrested at the meeting site with domination and submission devices in his possession. [ 102 ] Randall is, I agree, slightly confusing. Citing the just noted factors, the sentencing judge held at paragraph 28 that a fit sentence would be six months. However, citing mitigating factors, the court held that a fit sentence would be three months. The court held that, together, the six-month and three-month sentence for a total of nine months would be the least sentence it could impose balancing the aggravating and mitigating factors.

Still, at paragraph 55, the court imposed a sentence of three months to be served intermittently. [ 103 ] It is clear that, despite the confusion and the ultimate sentence, the court in Randall was satisfied that a number of mitigating circumstances existed in the case.

They were that the defendant, age 50, was a first-time offender, that he had suffered a traumatic childhood and was himself the victim of sexual assault, that he cared for two adult children, one son, a son diagnosed with autism, and the other a daughter suffering with mental health challenges, that he ran his own business which suffered due to the charges, that any loss of future or further employment would put his mortgage at risk and thus his children, that, at the time of the offence, he was drinking and taking lorazepam for stressors in his life, that the alcohol diminished his self-control, that since the offence, he had discontinued his medication, had obtained new medication, was taking counselling, was assessed as a low risk of recidivism, that he had spent four days in custody awaiting bail and had performed well on bail in the community. [ 104 ] Aside from all these mitigating factors, the Crown submits the sentences also reflect the fact that each accused was, unbeknownst to that person, at the time actually communicating with an undercover police officer.

It is not so much the case that an actual child was involved, as Justice Pomerance wrote in R. v. Harris at paragraph 17 , it is not a mitigating factor that no child was involved. Rather, the Crown distinguishes between those offenders who target a specific child and those offenders who simply troll even in that case. The cases I have just discussed have the added fact that the offenders themselves are lured in or encouraged by police thus eroding to a very slight degree their moral culpability.

[ 105 ] There are cases before me that are more in line with the circumstances in your case, Mr. Hathaway, in the sense the offender chose his or her victim having known the victim however slightly. In R. v. S.S. , such an offender received a 90-day sentence which was at the time the mandatory minimum for this offence, but for the mandatory minimum, the court would have sentenced S.S. to 14 to 21 days in custody. The facts in S.S. are, in my view, quite distinguishable from yours.

While S.S., aged 20 at the time of the offence, sent Facebook messages to a 16-year-old youth for the purposes of luring that youth into providing photographs and to engage in sex with the offender, S.S. offered the youth money and gifts. The youth rebuffed S.S., but S.S. persisted. The communication lasted approximately five weeks. [ 106 ] The evidence on the hearing in S.S. , provided by a psychologist, was that S.S. functioned intellectually at the bottom end of the below-average range. He lacked a well-developed set of problem-solving skills. He had been the victim of a sexual assault.

He was considerably delayed in language and comprehension. He was at low risk for recidivism and low to moderate risk for sexual recidivism. The expert opined that, from a rehabilitative perspective, there was little value in incarcerating S.S. Rather, in the care of his parents, with whom he had always lived, but for the bail period, S.S. was treatable. [ 107 ] Even still, the court in S.S. would have imposed a custodial sentence, albeit much lower than six months.

Moreover, in referring to the particular circumstances of that case, the court wrote at paragraphs 35 and 36: The circumstances of the case are not what one would normally have spring to mind when speaking of child luring. This is not a case of a middle-aged man making use of a computer to seduce an adolescent child, rather it is the case of a 20 year old man with low intelligence with a learning disability, sending messages to a 16 year old boy to do something of a homosexual nature. To paraphrase the court in S.S. , Mr.

Hathaway, yours is the more typical case of child luring. [ 108 ] The Crown also relies on the sentencing reasons in R. v. Janho , 2016 ONSC 7099 , where the offender was sentenced to 12 months in custody and the reasons in R. v. A.H. , 2018 ONCA 677 , where the offender was sentenced to 15 months in custody. The circumstances in Janho are particularly aggravating, as there the offender was a member of the Ontario Provincial Police. [ 109 ] In A.H. , the victim was a 15-year-old friend of the offender's daughter.

A.H. contains some of the more recent comments by the Ontario Court of Appeal regarding sentencing for the offence of child luring. In particular, the comments at paragraph 52 bear repeating: This court has repeated many times that where adult sexual predators exploit innocent children, deterrence and denunciation and the need to separate the perpetrators from society are the predominant objectives of sentencing ... In Jarvis , this court commented that 6 months is a lenient sentence. In R. v.

Gucciardi ... a case that was decided after Morrison , the accused was sentenced to 12 months’ incarceration in order to give effect to the objectives of deterrence and denunciation, where there were a number of mitigating factors not present in this case, including the fact that the accused pleaded guilty, expressed remorse, had a supportive family, and had taken positive steps toward his rehabilitation.

From this passage, I want to emphasize the comment that six months is a lenient sentence for this offence. [ 110 ] Having reviewed all of the case authorities before me, I am satisfied, as I noted earlier in these reasons, that the range for this offence is 12 to 24 months at a minimum. While every case is unique, there are numerous instances where the combination of aggravating and mitigating circumstances, some of which go directly to the accused's moral culpability, have resulted in sentences well below the range.

That is no more than to apply the principles of sentencing set out in the Code . [ 111 ] Here, bearing in mind all of the relevant principles, I find the aggravating and mitigating factors in this case, Mr. Hathaway, place you well at the low end of the range for sentencing, but they do not justify a sentence of any less than six months. That, in my view, is extremely lenient in the circumstances. [ 112 ] I make this finding knowing custody will not be easy for you. It is rarely easy, in any event.

Nonetheless, a sentence of less than six months, in this case, a sentence of 90 days to be served intermittently, would not, in my view, firstly send the message that must be sent in your case of specific deterrence. A custodial sentence that leaves you in no doubt of the consequences of the commission of this offence will, frankly, assist in your rehabilitation. Secondly, a sentence in the range of 90 days in the circumstances of this case would not send the appropriate message of general deterrence.

Persons able to interact with children in our community through activities, among others, must know this kind of offending behaviour will lead to serious consequences even in cases like yours. [ 113 ] As I have decided not to impose a sentence below the mandatory minimum, I have concluded it would be unnecessary and not useful to go on to consider the constitutionality of the mandatory minimum sentence for the offence in this case. [ 114 ] Mr. Hathaway, I am now going to sentence you.

I will not ask you to stand, but for the reasons I have just given, for the offence of child luring contrary to s. 172.1 of the Code , I hereby sentence you to six months in custody. [ 115 ] This custodial sentence will be followed by a period of probation for 24 months. [ 116 ] The mandatory conditions of the probation order are that you must keep the peace and be of good behaviour, attend at court when required to do so by the court, you must also advise the court or a probation officer in advance of any change of name or address, and promptly of any change of employment or occupation. [ 117 ] You will have no contact or communication, directly or indirectly, with M.M. or N.M. [ 118 ] You shall not attend at or be within 100 metres of any place which you know to be the residence, school, or workplace of M.M. or N.M., except while on a highway in a moving motor vehicle in transit to another location. [ 119 ] Within 72 hours after completing your jail sentence, you shall report in person to the probation office located nearest to the place

of your release from custody and, after that you shall report as and when directed by the probation officer. [ 120 ] You shall reside at a residence approved in advance by the probation officer, and you shall not change your residence at any time without first obtaining the written consent of your probation officer. [ 121 ] You shall remain in the Province of British Columbia, unless you have first obtained written permission from your probation officer to leave the Province of British Columbia, in which case, you will carry that permission with you. [ 122 ] You must not date or enter into a marriage or common-law relationship that has the care or access to children under the age of 16 years, until you have identified to your probation officer the person with whom you propose to enter into such a relationship, and your probation officer has informed that person of your history as described in your criminal record, presentence report, if any, and these reasons for judgment. [ 123 ] You must not date or enter into a marriage or common-law relationship with any person, unless you have identified to your probation officer the person with whom you propose to live, and your probation officer has informed that person of your history as described in your criminal record, presentence report, if any, and these reasons for judgment. [ 124 ] You will not possess or consume alcohol or intoxicating substances except those that are prescribed to you by a medical physician. [ 125 ] You must not go to any bar, club, nightclub, lounge, liquor store, or any place where the primary commodity for sale is alcohol. [ 126 ] You must attend, participate in, and successfully complete any intake, assessment, counselling, or program that may be directed by your probation officer.

That counselling should include alcohol or drug counselling, sexual offence prevention counselling, a full- time attendance program for sexual offenders, in which case, you will comply with all the rules and regulations of the counselling program. [ 127 ] Having consented, you must attend at the direction of your probation officer for a psychiatric intake, assessment, counselling, or treatment program through the Forensic Psychiatric Services. [ 128 ] You must not use any device capable of accessing the Internet unless: (

a) it has the capacity to retain and display the history of the Internet use; and (

b) you consent to inspection of the device by your probation officer or a peace officer. You must not delete the history of the Internet use from the device, use the Internet to contact or attempt to contact any person you know to be or who reasonably appears to be or represents him or herself to be under the age 18 years, except members of your immediate family, or possess any device capable of storing digital images, unless you consent to the inspection of the storage device by your probation officer or a peace officer.

Having consented, you must provide the device and any password used to lock the device to your probation officer or peace officer upon their request in order for him or her to monitor your compliance with this order. [ 129 ] You will not possess any pornographic material or access any pornographic material by electronic means. [ 130 ] You will not possess, either personally or through any other person, any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, or explosive substance, anything that resembles a weapon or firearm, any weapon defined in s. 2 of the Criminal Code , or any related authorizations, licences, registrations, or certificates. [ 131 ] This offence is a primary designated DNA offence.

Pursuant to s. 487.051(1) of the Code , I make an order in Form 5.03 authorizing the taking of samples of bodily substances from you for the purposes of registration in the national DNA databank. That sample will be taken from you in custody. [ 132 ] This is an offence that requires registration under the Sex Offender Information Registration Act . Pursuant to s. 490.012, you are required to comply with the Sex Offender Information Registration Act for 10 years. [ 133 ] Pursuant to

section 109 of the Criminal Code for a period of 10 years from today's date, you are prohibited from possessing any firearms, other than a prohibited firearm or restricted firearm, and any crossbow, restricted weapon, ammunition, and explosive substance, and you are prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device, and ammunition for life. [ 134 ] The order pursuant to s. 161 of the Criminal Code will provide that for a period of 10 years from the date of your release from custody, you will be prohibited from: (

a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre; Except in the presence of an adult third party with knowledge of this condition approved of in advance by the court. (a.1) being within [100 metres] of any dwelling-house where M.M. and N.M. ordinarily resides . . . (

b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; (

c) having any contact — including communicating by any means — with a person who is under the age of 16 years, unless the [you do] so under the supervision of a person whom the court considers appropriate; or [ 135 ] Not to use the Internet or other digital network or to (a), access any content that violates the law;

(

b) access any pornography; (

c) directly or indirectly access any social media site, social network, Internet discussion forum, or chatroom, or maintain a personal profile on any such service or to subscribe or possess or access any file-sharing programs. That is the 161 order for a period of 10 years. I think that is it. [ 136 ] MS. DUTTON: Your Honour, the only additional one is a no-communication order with N.M. or M.M. or any member of his immediate family -- or their immediate family while Mr. Hathaway is in custody. [ 137 ] THE COURT: Right. [ 138 ] MS. DUTTON: So that is pursuant to 743.21. [ 139 ] THE COURT: I will make that order. [ 140 ] MS. DUTTON: Thank you. (REASONS FOR SENTENCE CONCLUDED)