R. v. R.Y. Date:, 2013 BCPC 421

Citation: R. v. R.Y. Date: 20131113 2013 BCPC 0421 File No: 224693-1 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA Criminal Division REGINA v. R.Y. REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.F. GIARDINI BAN ON PUBLICATION -

SECTION 486.4(3) Counsel for the Crown: Jordan Hauschildt Counsel for the Defendant: Hollis Lucky

Place of Hearing: Vancouver , B.C. Dates of Hearing: June 26, 2013; August 27, 2013 Date of Judgment: November 13, 2013 A Corrigendum was released by the Court on July 30, 2015. The corrections have been made to the text and the Corrigendum is appended to this document.

INTRODUCTION [ 1 ] R.Y. pled guilty to the following offences: a. that between October 11, 2011, and October 26, 2011, he communicated with a person, by means of a computer system, who he believed was under the age of 16 years, for the purpose of facilitating the commission of an offence under s.152 of the Criminal Code and contrary to s. 172.1(1) (b); b. that from May 5, 2008 to October 26, 2011 inclusive he possessed child pornography contrary to s. 163.1 (4). [ 2 ] The Crown proceeded by indictment. The broad issue in this case is -- what is a fit sentence?

Both the Crown and the defence acknowledge a jail sentence on both offences is appropriate in the circumstances. A mandatory minimum sentence applies to the possession of child pornography offence, so the specific issues to be addressed are whether R.Y. should receive a jail sentence beyond the statutory minimum of 45 days and how that sentence should be served. On the luring offence, which does not have the statutory minimum sentence, the issue is the length of the sentence and whether it should be served in “real jail” or in the community under a conditional sentence order.

CIRCUMSTANCES OF THE OFFENCES Child Luring [ 3 ] On October 11, 2011, an undercover police officer logged onto a profile she had created on Nexopia, a social networking website. The profile showed her to be a 14-year-old girl from Vancouver, British Columbia. She had posted two images on the profile which were images of a 13-year-old girl. Once the officer was online on Nexopia she received an initial message from someone called RobareOld. It is admitted this was the name R.Y. used on his Nexopia profile. The initial internet chat began innocuously with a message from R.Y. that just said “boo”.

During the course of that first chat R.Y. and the undercover officer had an online conversation that included the following: • a question regarding her age – she answered she was actually 13 and noted that maybe she was too young for him.

R.Y. indicated they could at least talk and there was no harm in doing that; • questions and answers about whether he worked and what he did; • R.Y. indicated he was picky and he found it impossible to find a girl he really liked; • he said he did not want a girl who smoked, drank, took drugs, partied, went to clubs or raves and he would like it if the girl was either a virgin or didn't sleep around; • the conversation moved on from there and included a discussion that revealed the girl was a virgin.

R.Y. said he always wanted to be a girl's first; • during the course of that conversation R.Y. asked the girl if she ever needed someone to help her babysit and whether she ever had to look after kids overnight. [ 4 ] The second conversation took place on MSN the following day, October 12, 2011. Again it began innocuously but fairly quickly it escalated. R.Y. asked the girl-- "snuggles?” He also indicated he would love to snuggle her. If she wanted, he would love to be her first love.

During the course of that chat R.Y. raised a number of matters including: the issue of oral sex, questions about the girl's breasts, whether she had pubic hair and whether she had shaved or planned on shaving her pubic hair. He also asked her what kind of underwear she was wearing, whether she had ever masturbated, and whether they could meet up for Halloween. It was clear from the exchange that followed that the purpose of meeting up on Halloween was to engage in sexual touching of one another. [ 5 ] On October 16, 2011, there was a third chat again on MSN.

R.Y. tried to determine whether the girl was going to be home

alone that evening and whether he could drop by. During the course of that chat he asked the girl whether she was interested in "trying anything with me". The girl asked him why he didn't find a girl his own age. He said given what he was looking for in a girl, which included a preference for virgin, it was impossible to find one his own age. R.Y. told the girl he would love to be her first experiences and to teach her. They had a discussion about sex-related matters including what happens when a girl loses her virginity.

They also had a brief discussion about the girl holding his penis. [ 6 ] On October 19, 2011, there was a fourth chat on MSN. The chat started out with talk about general matters. Several times R.Y. asked the girl whether she had any questions for him. When she said she did not, R.Y. wrote back that she made his penis hard. A discussion ensued in that vein. R.Y. again brought up whether there was a date they could meet. R.Y. also initiated a line of conversation about what it would be like if they were sitting on his bed "getting to know each other".

After a discussion about activities that would be considered foreplay, R.Y. said that wasn't sex. Sex was if he put his penis into her vagina. The conversation continued with some overtly sexual exchanges. [ 7 ] On October 20, 2011, R.Y. and the girl again engaged in a conversation on MSN. The major part of that conversation revolved around where they could meet. [ 8 ] On October 22, 2011, R.Y. and the girl again had a conversation on MSN. At the very beginning of that chat R.Y. wanted to know if there was a Webcam or digital camera in her room. He explained to her how they could start a video call.

During the course of that conversation they chatted about getting together. R.Y. said if they met, he thought it would be safer for her to make the first move such as a hug, or kiss, or something. During that conversation the girl asked R.Y. if he had ever told his friends about her. He said he thought his friends would slaughter him if he told them he was talking to a 13-year-old. They also chatted about meeting up and discussed what underwear they should wear. R.Y. discussed the benefits of the girl wearing a thong instead of other types of underwear. He also asked if she was wearing a bra.

There was also a discussion about oral sex. [ 9 ] On October 24, 2011, R.Y. and the girl had another conversation on MSN. Again it started out fairly innocuously with a conversation about what they had dinner. It was a long discussion with each of them trying to guess the other's name. [ 10 ] On October 25, 2011, R.Y. and the girl had another telephone conversation on MSN. They discussed meeting the following day. [ 11 ] The last conversation they had was on October 26, 2011.

During a brief conversation they confirmed their meeting time later that day. [ 12 ] On October 26, 2011, R.Y. was arrested at the pre-arranged meeting place. He was taken to the police station. After having received access to counsel he provided a statement to the police. In his statement R.Y. admitted he had been speaking to someone he thought was 13 years old. At first he said he just talked to the girl about hanging out.

However, when the police confronted him with the MSN messages, he admitted there was sexual content. [ 13 ] The police executed a search warrant at the house where R.Y. was living with a relative. They seized two laptop computers that belonged to R.Y. Those computers were sent for forensic analysis. [ 14 ] In addition to the conversations with the girl, the police found other MSN conversations with other individuals in which R.Y. asked for pictures of young girls.

In those messages R.Y. wrote: he loved pre-teens, but younger is also nice; he would love to have a 12- year-old cutie; send me pictures of you and young girls; and what's the youngest you've got? Possession of pornography charge [ 15 ] A forensic analysis of the two laptops seized by the police showed there was child pornography on both laptops. The police found the following: • 982 images in total which were classified as child pornography; • 32 movie clips which were classified as child pornography; • 156 images which were classified as child nudity; and • 19 movies which were classified as child nudity.

In addition to the above noted images R.Y.'s laptops also contained 3040 files of adult pornography. Photographs of former girlfriend [ 16 ] During his interview with police R.Y. mentioned he had a profile on smut vibes.com. This is an adult website for members only. To become a member one has to access the website, sign up and create a profile. Once that is done the person can access other people's files. The police obtained access to that profile and found he had uploaded 31 photographic images into a file titled, "my ex GF". Of those 31 photographic images 28 appeared to be of the same girl.

The first photograph was uploaded in May 2008. The photographic images in that file had explicit written descriptions appended to them. The "hit" counters on the website showed the photographic images posted by R.Y. had been viewed thousands of times. Many viewers left sexually explicit comments regarding those photographs. [ 17 ] The police learned R.Y. had a former girlfriend named J.M. and contacted her. She confirmed she dated R.Y. in 2007 – 2008. J.M. confirmed that 28 photographs seized by police were photographs of her. At the time those photographs were taken she was

between 16 and 17 years old. Only 16 of the 28 photographs of J.M. are pornographic in nature. J.M. confirmed that 12 of the 16 photographs were taken when she was under 18 years of age. Five of those 12 photographs showed J.M.’s exposed external genitalia, four showed R.Y.'s penis in her vagina, and three showed J.M. holding and licking R.Y.'s naked penis. [ 18 ] All of the photographs were taken with J.M.’s agreement at the time. However, the photographs were uploaded on the Smut Vibes website after the relationship between R.Y. and J.M. ended. They were uploaded without J.M.'s knowledge or consent.

J.M. became extremely distressed and emotional when she learned R.Y. had uploaded those pictures to a website. Some of the photographs showed her face. R.Y. also transmitted two sexually explicit videos of J.M. to someone on MSN who indicated he was male. The first video was 38 seconds long; the second video was 3 minutes and 34 seconds long. Samples of pornographic images of children [ 19 ] Constable Shook testified at the sentencing hearing. He is a police officer in the VPD counter exploitation unit.

He explained the police have a classification system which includes Category 1 for child pornography and Category 2 for child nudity which is not considered pornographic. Rather than asking the court to review all of the material seized from R.Y.'s computer, the police prepared a representative sample of 12 images which were presented to this court along with a verbal description of the images. Of the 12 images two were of J.M., the other 10 were of unidentified young children.

I viewed the photographs on a video screen and am satisfied the verbal descriptions of the photographs given by Constable Shook accurately reflect what is depicted in the photographs, albeit his descriptions were not as graphic as the images themselves. [ 20 ] One photograph of J.M. is a full-frontal shot which shows J.M. lying on a bed. Her face is shown; her legs wide apart show her shaved external genitalia.

The other photograph of J.M. is a photograph below the waist which shows her external genitalia and a penis in her vagina. [ 21 ] The 10 sample photographs of unidentified children show still images of pre-pubescent girls some of whom are as young as 4 to 6 years and 3 to 5 years old. Several images focus specifically on the exposed naked external genitalia of the children. In some photographs there is an adult hand in the picture. In some photographs there is what appears to be ejaculate on the external genitalia of the child.

Several of the pictures show a penis or a vibrator in the anus of the child, others show a penis in the mouth of the child. POSITION OF THE PARTIES [ 22 ] The Crown submits that considering all the circumstances a global sentence of two years in jail is appropriate for both the possession of child pornography and the luring offences. Additionally, the Crown seeks a three year probation order, orders under s. 161 (a) (

b) and (c), forfeiture of the materials seized by the police, a DNA order under s. 487.051 and an order for registration in SOIRA. [ 23 ] The Crown submitted numerous cases that address the principles of sentencing applicable to child pornography and child luring offences. Those cases also address sentences in a number of specific circumstances involving possession of child pornography and child luring as well as sentencing ranges. As noted, the Crown submits that a global sentence of two years in jail followed by three years’ probation is appropriate in the circumstances.

In particular the Crown submits R.Y. should be sentenced to 15 months in jail for the child luring offence and nine months consecutive for the possession of child pornography offence. [ 24 ] The defence submits an appropriate sentence for the possession of child pornography offence is 90 days in jail served intermittently on weekends and a 21 month conditional sentence for the child luring offence. The defence agrees a period of three years’ probation is appropriate. The defence took no position on the ancillary orders requested by the Crown. R.Y.'S CIRCUMSTANCES [ 25 ] R.Y. is now 24 years old.

He was 22 years old in 2011. He was born in Ontario but moved with his parents to the Vancouver area when he was a young child. He lived with his parents until they separated when he was 13. At that point R.Y.'s father had full custody of R.Y. and his older sister. R.Y. senior worked a lot and often was not home. The pre-sentence report indicates R.Y.’s mother is an alcoholic. When she drank, according to R.Y.’s father, R.Y. was often subjected to physical and verbal abuse. R.Y. told the probation officer he has had limited contact with his mother. He last saw her four and a half years ago.

He denies having been subjected to any physical abuse. [ 26 ] R.Y. described his childhood as "different". He says his father wanted to have control of the household. As R.Y. got older, this caused some issues with his father. R.Y. reported his father has a bit of a temper and there was some verbal abuse while he was growing up. At present R.Y. is living with his father and they have a good relationship. His father is aware of the matters before the court. He is not happy about the offences but is supportive of his son. [ 27 ] R.Y. reported having a serious relationship about six years ago with J.M.

At the time they were together for about 13 months. While together they fought a lot. Presently, R.Y. has a girlfriend with whom he has been for 11 months. He described the relationship as serious. However, at this stage they have not discussed the future of the relationship. It was only recently that he told his current girlfriend about the offences to which he pled guilty. She was not happy about the situation but is supportive of him. [ 28 ] R.Y. completed grade 11 but did not graduate as he was one subject short for his grade 12 completion. R.Y. described his experiences at school as difficult.

He was bullied beginning in elementary school. [ 29 ] R.Y. is and has been employed in a local business for about 5½ years. His supervisor at work was contacted by the probation officer and confirmed R.Y.'s employment status. He told the probation officer R.Y. is a good employee and to date there have been no issues or concerns. [ 30 ] The pre-sentence report reviewed matters relating to R.Y.'s behaviour and his emotional status. A more complete picture was

provided by the forensic psychiatrist who prepared a psychiatric assessment at defence counsel's request for the purpose of this sentencing hearing. [ 31 ] The forensic psychiatric assessment was undertaken by Dr. Tomita. In preparing the report Dr. Tomita interviewed R.Y., reviewed the particulars of his charges as well as documents related thereto. Dr. Tomita also had R.Y. complete the Clarke Sex History Questionnaire for Males. Dr. Tomita opined that R.Y. appears to be experiencing adjustment disorder problems with depressed mood. The stressor has been this ongoing legal matter.

Before the criminal charges leading to this case, R.Y. had reported intermittent difficulties with depressed mood related to negative life experiences such as bullying. This resulted in intermittent suicidal thoughts. However, he has not had a suicide attempt and does not appear to have experienced a major depressive episode. [ 32 ] Dr. Tomita wrote R.Y. appears to have problems with non-exclusive paedophilia with sexual attraction to females. Dr. Tomita based this on the current criminal charges as well as R.Y.'s self-report of being sexually attracted to features of pre-pubescent females. Dr.

Tomita noted this was also reflected in the file documentation, for example, R.Y.'s MSN messages where he asked for images of young females and details of R.Y.'s online communications with the undercover police officer posing as a young girl in which he asked permission to shave her pubis. Dr. Tomita noted that although R.Y. has paedophilic sexual preferences these are non-exclusive as he has been able to establish and maintain a sexual relationship with age-appropriate sexual partners. [ 33 ] Dr.

Tomita further opined that, based on R.Y.'s self-report and his answers to some of the Clarke Sex History Questionnaire, that he may have other sexual preferences and difficulties that require further assessment. Dr. Tomita was unable to canvas R.Y. about details of those issues but they should be reviewed in any later assessments for treatment and after sentencing has been completed. [ 34 ] Dr. Tomita wrote that the most concerning charges relate to the communications with the person R.Y. believed was under the age of 16 years and the possession of child pornography. According to Dr.

Tomita, these charges appear to be most directly related to a sexual motivation involving paedophilic interest. [ 35 ] Dr. Tomita noted R.Y. does not have a history involving prior charges or convictions for non-sexual violence, nor does his history suggest there are concerns in this area. Accordingly, the main concern is to determine whether there is a risk for future sexual violence. Dr.

Tomita used several risk assessment methodologies and professional guidelines, such as the Sexual Violence Protocol and the Structured Assessment of Protective Factors for Violence Risk to assess R.Y.'s future risk of sexual violence. He noted, based on the Hare Psychopathy Checklist, that R.Y. possesses a very low level of psychopathic features. This is a risk reducing factor. On the Static – 99R, an actuarial risk assessment measure, R.Y. fell into the category of offenders who are at moderate to low risk of future sexual violence.

On the Risk for Sexual Violence Protocol, R.Y. possessed 5/22 risk elevating factors. Dr. Tomita assessed the risk factors that were present but also considered the risk factors that were absent. He concluded that, overall, R.Y.'s risk for future sexual violence is in the low to moderate range. [ 36 ] Dr. Tomita opined that the most likely future scenario is a possible repetition of child pornography possession charges. A less likely scenario is a contact offence with a young pubescent female or perhaps a pre-pubescent female.

Such risk, if it occurs, is likely to be manifested over the longer term and after any sentence he receives has been served. [ 37 ] Dr. Tomita concluded, after considering all three risk assessment methodologies that R.Y. "presents with a low risk of future sexual violence if he is under legal supervision in the community, which will rise to low to moderate level after any legal supervision ends.” In terms of long-term risk, Dr. Tomita said R.Y. requires sex offender treatment to address risk factors and reduce his future risk. [ 38 ] With respect to treatment recommendations Dr.

Tomita concluded R.Y.'s risk has been demonstrably manageable in the community as he has been on bail supervision since his arrest. From a psychiatric perspective a community-based sentence of longer duration would best serve his treatment needs and management of his risk. In particular, a community-based sentence would permit R.Y. to maintain protective factors, the most significant of which is his employment. Dr. Tomita suggested it might be appropriate for R.Y. to attend at the Vancouver forensic clinic to participate in a sex offender treatment program designed for low to moderate risk offenders.

Additionally, R.Y. should also be directed to see the psychiatrist who consults to the forensic psychiatric services sex offender treatment program. Dr. Tomita noted that, if R.Y. receives a custodial sentence, it is recommended he be referred to the forensic psychiatric services sex offender treatment program for evaluation by a psychiatrist. However, Dr.

Tomita also noted that a provincial custodial sentence is unlikely to provide the benefit of psychiatric assessment specifically to further evaluate his sexual preferences or for his low- grade mood problems. [ 39 ] R.Y. was also seen by Michael Pond, a psychotherapist in private practice in the Vancouver area. Mr. Pond saw R.Y. on one occasion and talked with him on several occasions for initial intake and assessment. Additionally, Mr. Pond reviewed the psychological report prepared by Dr. Tomita. Mr.

Pond noted that, given his recent and brief involvement with R.Y., his letter should be considered as an initial screening report. He noted R.Y. was forthcoming and appeared to take full responsibility for his deviant behaviour and the charges before the court. R.Y. did not present with any denial or minimization or any other defence mechanisms relating to the charges. He admits he has a problem and is willing to receive treatment. R.Y. demonstrates remorse, is amenable to treatment, and sees potential for positive change.

SENTENCING PRINCIPLES AND PRECEDENTS General principles [ 40 ] Sections 718 to 718.2 of the Criminal Code articulate the statutory purpose of sentencing and provide sentencing objectives and principles to assist judges in arriving at a fit sentence. The fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just peaceful and safe society by imposing just sanctions. The sentencing objectives that must be considered are: denunciation of unlawful conduct, deterrence of the offender and other persons from committing offences, separation of offenders from

society where necessary, assisting in the rehabilitation of offenders, providing reparations for harm done to victims and to the community and promoting a sense of responsibility in offenders and acknowledgment of harm done to victims and to the community. [ 41 ] The fundamental principles of sentencing are:

a) a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender;

b) a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender;

c) a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;

d) an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances;

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders; and

f) under s. 718.2 evidence that the offender, in committing the offence, abused a person under the age of 18 years is deemed to be an aggravating circumstance. Statutory sentencing provisions [ 42 ]

Section 163.1 (4.1) provides that every person who possesses any child pornography is liable to imprisonment for a term not exceeding five years and to a minimum punishment of imprisonment for a term of 45 days, if the offence is proceeded with by indictment. [ 43 ]

Section 172.1 (2) (

a) provides that every person who commits the offence of using a computer system to lure children for the purpose of committing certain sexual offences is liable to imprisonment for not more than 10 years, if the offence is proceeded with by indictment. Sentencing principles in child pornography cases [ 44 ] Possession of child pornography is not a victimless crime. In R. v.

Sharpe , [2001] S.C.R. 45, Chief Justice McLachlin, writing for the majority, noted that Parliament's objective in passing s. 163.1 (4) was to criminalize possession of child pornography that poses a reasoned risk of harm to children: This objective is pressing and substantial.

Over and above the specific objectives of the law in reducing the direct exploitation of children, the law in a larger attitudinal sense asserts the value of children as a defence against the erosion of societal attitudes towards them…. (at para. 82) [ 45 ] In addressing whether there was a rational connection between the law on possession of child pornography and Parliament’s goal Chief Justice McLachlin noted: Children are used and abused in the making of much of the child pornography caught by the law.

Production of child pornography is fueled by the market for it, and the market in turn is fueled by those who seek to possess it. Criminalizing possession may reduce the market for child pornography and the abuse of children it often involves. The link between the production of child pornography and harm to children is very strong. The abuse is broad in extent and devastating in impact. The child is traumatized by being used as a sexual object in the course of making the pornography. The child may be sexually abused and degraded.

The trauma and violation of dignity may stay with the child as long as he or she lives. Not infrequently, it initiates a downward spiral into the sex trade. Even when it does not, the child must live in the years that follow with the knowledge that the degrading photo or film may still exist, and may at any moment be being watched and enjoyed by someone.(at para. 92) [ 46 ] In R. v. Donnelly , [2010] B.C.J. No. 2102 , Mr.

Justice Schultes wrote: Possession of child pornography is a perpetuation of extremely serious victimization of children, because it reproduces the harm that was done to them originally, potentially over and over again, for the sexual gratification of the person who possesses it. (at para. 55) This was one of the factors he considered in imposing sentence. In another case, R. v. Garcia , [2009] B.C.J. No. 581 , Madam Justice Griffin noted: In terms of the impact on victims, users of child porn may like to think of it as harmless because the user is not actually touching a child but simply looking at an image.

This is the worst kind of self-serving rationalization. Child pornography victimizes the children who were photographed or filmed. The children are at a minimum sexually exploited and very often are sexually abused as part of the image- taking. The child is re-victimized every time someone looks at the images as they are widely circulated through the Internet. Further, it is believed that circulation of these images can create a kind of pedophile-peer-group mentality where social inhibitions against sexualization of children are lowered, potentially encouraging child sexual abuse.

Thus, possession of child pornography is treated as an extremely serious crime. (at para.14)

The case law [47] Counsel presented me with a total of 34 cases which dealt with the general principles of sentencing in similar cases and withspecific sentences imposed on offenders charged with possession of child pornography and child luring offences. I have considered allthe cases presented but will only review a select number of them in this sentencing decision. Sentences imposed on similar offenders insimilar circumstances provide a helpful guide on the range of sentence. However, sentencing is an individualized process and in craftinga fit sentence for R.Y.

I must pay particular attention to his circumstances, the circumstances of the offences to which he pled guilty andthe principles of sentencing set out in the Criminal Code. Below I summarize some of the case law in respect of sentences imposed forpossession of child pornography and in respect of sentences imposed for child luring. Sentences for possession of child pornography [48] In R. v. Hammond, 2013 BCSC 439, the court upheld a 60 day jail sentence to be served intermittently on one count ofpossession of child pornography. In that case the Crown proceeded summarily.

Police found 324 videos on the accused’s laptopcomputer. Although those videos contained pornography, only 4 out of the 324 videos fell within the definition of child pornography. Inupholding the sentence, the court noted that a number of the relevant comparators submitted by the Crown were limited in theirusefulness because those were cases where the Crown had proceeded by indictment. The court reviewed nine cases (in a helpful chartformat) in which the Crown proceeded summarily and the 14 day minimum sentence applied.

The court said it seemed "that the actualrange of sentence is quite broad, from the minimum of 14 days up to 12 months." [49] In R. v. Paradee, 2013 ABCA 41 , [2013] A.J. No. 75, which is reviewed in more detail in my review of child luring-related cases below, the 41-year-old offender pled guilty to accessing child pornography and internet luring. The trial judge imposed asentence of 90 days intermittent on the accessing child pornography offence which consisted of the offender inducing a young girl, whowas 15 years old at the time, to perform private, intimate, sexual acts over the internet while he watched.

On appeal, the Alberta Court ofAppeal found the 90 day intermittent sentence was demonstrably unfit. Had it not been for the position adopted by the Crown, the courtwould have imposed a sentence of 12 months in jail. However, it accepted the Crown's position and imposed a six-month jail sentence. [50] In R. v. El-Jamel, 2010 ONCA 575, the accused pled guilty both to possession of child pornography and internet child luring.On the possession of child pornography offence he was sentenced to 45 days imprisonment.

The sentencing judge refused a defencerequest that the accused serve that sentence intermittently, saying that an intermittent sentence would not be adequate to addressdenunciation, general deterrence and specific deterrence. The offender possessed images on his computer and had used an internet chatroom to lure a person he believed to be a 12-year-old girl and her 13-year-old friend to meet him to engage in sexual acts. Further detailsregarding the nature and amount of child pornography were not provided in the appeal decision. [51] In R. v.

Schroeder, 2012 ABPC 241, the accused was sentenced on one count of possession of child pornography and anothercount of internet child luring. After the accused was arrested on the child luring offence a forensic examination of his laptop computerrevealed four photographs of child pornography, one two minute video of child pornography, traces of an additional fourpornographically titled videos referencing children and 218 chats, including conversations in which the accused discussed with otherapparent adults, in graphic terms, committing sexual acts with children.

On the offence of possession of child pornography the accusedwas sentenced to 90 days imprisonment to be served on an intermittent basis. [52] In R. v. Lamb, 2011 BCSC 349, the accused pled guilty to one count of possessing child pornography. The Crown proceededby indictment. The police seized a desktop computer from the accused’s bedroom. The files that constituted child pornography consistedof six videos, two still images, and 20 stories and text files. The youngest of the females shown in the videos and still images appeared tobe between 11 and 13 years of age.

In imposing sentence, the court noted the case before it was distinguishable from all of the casescited by counsel. In particular, it noted: first, the amount of material classified as child pornography was significantly less than in theother cases cited; second, Mr. Lamb was a first offender with no criminal record; third, Mr. Lamb was not in a position of trust orauthority; fourth there were other significant mitigating circumstances.

Those mitigating circumstances were: the accused entered aguilty plea and expressed remorse for his conduct; shortly after his arrest the accused took steps to work towards his rehabilitation byresiding at a residential addiction treatment centre; the accused had been on bail with strict bail conditions for almost two years and hadcomplied with the conditions; and following a psychological assessment the accused was found to be at low risk for reoffending. Thesentencing judge concluded the circumstances of the case called for a sentence at the lower end of the available range.

The accused wassentenced to imprisonment for 45 days to be served intermittently. It is this clear that in this case the accused was continuing to reside ata residential treatment centre and the judge took that factor into account. [53] In R. v. Heffernan, 2012 ONCJ 796, the accused was sentenced on one count of possessing child pornography. Thepornographic material was first discovered by a roommate who brought it to the attention of the accused’s girlfriend. The accusedclaimed his computer had been hacked and that was how the images likely got on his computer.

Eventually, the police were contactedand when confronted the accused ultimately provided a full confession. A search of the computer revealed 300 to 500 images of childpornography. The accused was sentenced to 90 days imprisonment to be served intermittently. In arriving at this decision the sentencingjudge took into account the extent of the accused’s collection of images which was moderate in size. The judge found that none of theother aggravating factors set out in R. v. Kwok, [2007] O.J. No. 557 applied. The sentencing judge noted there was much that wasmitigating in the accused’s circumstances.

The public protection interest would be well served by a custodial term that permitted theaccused to continue his employment, education, and intensive counselling uninterrupted and encourage his continuing rehabilitation. [54] In R. v. P.M.V., 2010 BCCA 34, the Court of Appeal imposed a sentence of six months less one day on a 49-year-old offenderfor possession of child pornography. The size of the pornographic collection was described as "thousands of pornographic images". Theoffender was also charged with making child pornography and invitation to sexual touching.

The court noted that the six months less aday sentence for possession of child pornography was quite lenient having regard to the amount of pornography in the possession of the

offender. However, the length of the sentence for child pornography was conditioned by the court’s concern that the total incarcerationportion of the sentence be two years less a day so that a three year probation order could be imposed. [55] In R. v. Gurr, [2007] B.C.J. No. 2325, the offender was sentenced for possession of child pornography and child luring. Theoffender had 200 images of child pornography on CDs, floppy disks and his computer hard drive. The offender was 33 years old. He wasin a relationship. His mother was supportive of him. He had no prior criminal record.

He had a good work history and was completing abachelor's degree in arts. He sought counselling after his offence and his counsellor reported he represented a moderate to low risk toreoffend. On the possession of child pornography offence he was sentenced to three years in jail to be served concurrently with a 12month jail sentence on the luring offence. Mr. Justice Powers considered whether a conditional sentence was appropriate on the luringoffence in the circumstances of this case. He was not satisfied a conditional sentence was appropriate: "not because it is not possible forMr.

Gurr to be managed in the community, but because I think it would be inconsistent with the principles of sentencing laid out in s.7.18 (sic) and s. 718.1 and 2 that I referred to." Sentencing in child luring cases [56] In R. v. El-Jamel, 2010 ONCA 575, as noted above, the accused pled guilty both to possession of child pornography andinternet child luring. On the child luring offence he received a 12 month conditional sentence to be served consecutively with 45 daysimprisonment on the possession of child pornography offence.

The Crown appealed the sentence for the luring conviction seekinginstead a sentence of 18 months imprisonment. The majority of the court upheld the sentencing judge’s decision. In this case the accusedhad engaged in online chats, over a period of three days, with an undercover officer posing as a 12-year-old girl. During the chats hebecame increasingly sexually explicit, he masturbated in front of a Webcam during one of the chats, and he arranged to have sexualintercourse with a 12-year-old girl and a three- way sexual encounter with her and her 13-year-old friend.

He was arrested when he wentto meet the girls as arranged. The majority noted the trial judge had proceeded in a manner consistent with the relevant case law issuedby that court. It noted the trial judge’s reasons adequately explained why she decided that for this offender a sentence outside the usualrange was appropriate. [57] In R. v. Schroeder, 2012 ABPC 241, the accused was sentenced to a 21 month less one day conditional sentence, consecutive tothe intermittent jail sentence imposed for one count of possessing child pornography.

The accused had used his laptop computer andBlackberry over a period of nine days to have online chats and e-mail exchanges with a person he believed to be a 14-year-old girl. Thechats and e-mails were almost immediately highly sexual. He pressed the girl to meet him with a view to initiating her into sexualexperiences. A meeting was arranged and when he attended he was arrested. The court noted that the case law indicated a range ofsentence from a low of a 15 month conditional sentence followed by two years probation to a high of 18 months imprisonment followedby two years probation.

The court distinguished a number of the cases submitted by Crown counsel. It noted that due to Mr. Schroeder'sextreme remorse, pro-social background, support in the community and a number of other factors he is was "one of the rarest cases" inwhich a conditional sentence met the objectives and principles of sentencing. [58] In R. v. Folino, (ON CA), [2005] O. J. No. 4737, the 35-year-old offender pled guilty to one count of childluring.

Over a period of approximately 19 days the offender had six live chats on the internet and sent eight e-mails to a person hebelieved to be a 13-year-old girl but who in fact was an undercover police officer. The Crown sought a one-year term of imprisonmentfollowed by probation, whereas the defence sought a conditional sentence order. The sentencing judge concluded a conditional sentencewas not appropriate because he believed a conditional sentence could not adequately express denunciation for the offence or adequatelydeter the accused or others from committing such an offence.

He sentenced the offender to nine months in jail. On appeal, the OntarioCourt of Appeal concluded the sentencing judge had overemphasized the punitive sentencing objectives of denunciation and deterrenceand failed to consider the restorative objectives of rehabilitation, reparations and promotion of a sense of responsibility. The Court ofAppeal fully agreed with the sentencing judge that the offence of child luring must be dealt with seriously by the courts.

It noted that: "inmost circumstances involving the offence of child luring, the sentencing goals of denunciation and deterrence will require a sentence ofinstitutional incarceration. Indeed, it will only be in the rarest of cases that a conditional sentence will be appropriate in a case involvingthis offence. In my view, however, this is one of those rare cases." [59] In R. v. Jarvis, (ON CA), [2006] O. J. No. 3241, a 22-year-old offender of previous good character receiveda sentence of six months imprisonment and three year probation after pleading guilty to one charge of child luring.

The luring offencetook place over a 14 day period and involved seven communications with an undercover officer posing as a 13-year-old girl. The Crownappealed arguing that the sentence was not fit. The offender argued he should have received a conditional sentence order. The appeal ofboth the Crown and the offender were dismissed. The court noted it considered the sentence imposed by the trial judge to be a lenientone; however, it could not say that the sentence was manifestly inadequate or that the trial judge had erred in principle.

In particular, thecourt noted the trial judge recognized he was imposing a sentence below the usual range but took into consideration a number ofmitigating factors and the absence of any serious aggravating factors. The court noted that cases placed before it suggested the range ofsentence for this offence generally lies between 12 months and two years. [60] In Jarvis, the court also commented on whether a conditional sentence of imprisonment was appropriate in the circumstances.

Itnoted as follows: ... a conditional sentence will generally be inappropriate for an offence of the nature committed by the appellant in this case. Given thedegree of planning implicit in the offence and the seriousness of the conduct contemplated, the objectives of general deterrence anddenunciation will rarely be satisfied by a conditional sentence of imprisonment. This offence is not committed simply throughcommunication with a child, even communication of a sexual nature.

The Crown must also prove that the offender communicated withthe child, or a person he believed to be a child, for the purpose of facilitating commission of a serious sexual offence such as invitation tosexual touching, an offence which if committed a conditional sentence is not available. Moreover, this accused committed the mostserious form of the offence as described in s. 172.1(1) (c); he communicated with someone he believed to be under fourteen years of age.(para. 27)

[61] In R. v. Somogyi, [2011] O. J. No. 253, the offender was found guilty of three charges of luring two children under the age of14, as well as two charges of invitation to sexual touching and possession of and accessing to child pornography. On the child luringcharge he was sentenced to a 22 months conditional sentence to be served consecutive to a jail sentence imposed for possession of childpornography. The offender was 45 years old and had one prior conviction for sexual touching for which he had received a pardon. Hewas married.

He was tested on various sex offender risk assessment measures and scored low on the risk of re-offending. Due to theoffender’s psychological and medical problems there was a great concern for his safety in the prison system. This evidence wasundisputed and caused the sentencing judge serious concern. The sentencing judge reviewed both the aggravating and mitigatingfactors. The sentencing judge acknowledged this was a difficult case but in all the circumstances he concluded it was "a rare case" and aconditional sentence was warranted.

Had he ordered a period of incarceration it would have been 12 months consecutive to the sentencefor possession of child pornography. [62] In R. v. Woodward, 2011 ONCA 610 , [2011] O. J. No. 4216, the Ontario Court of Appeal considered a conviction andsentence appeal by the offender who was convicted of luring a child under the age of 14, sexual assault, touching for sexual purpose,invitation to sexual touching and attempting to obtain sexual services for consideration. The offender was sentenced to a global sentenceof 6 ½ years. The specific sentence for child luring was 18 months consecutive to other offences.

The Court of Appeal dismissed both theconviction and sentence appeals. In the course of its reasons it addressed the range of sentence for child luring offences. In particular, itconsidered the Jarvis decision which has been interpreted as holding that the appropriate range of sentence for the offence of child luringis 12 months to two years. The court was not persuaded that the court in Jarvis was purporting to set the range of sentence for theoffence of child luring at 12 months to two years.

However, even if the court in Jarvis purported to set a sentence range of 12 to 24months for child luring, the court said the range needs to be revised given the 2007 amendment in which Parliament doubled themaximum punishment for child luring from five years to 10 years. Moreover, if it is shown, through the introduction of properlytendered evidence, that the offence of child luring has become a pervasive social problem then a much stiffer sentence, in the range of 3to 5 years, might be warranted to deter, denounce and separate from society adult perpetrators who commit this insidious crime. [63] In R. v.

Paradee, 2013 ABCA 41 , [2013] A.J. No. 75, the Alberta of Court of Appeal considered an appeal of thesentence imposed on a 41-year-old offender for child luring and for accessing child pornography. The original sentence imposed was a90 day intermittent sentence for accessing child pornography and an 18 month conditional sentence for internet luring. The offender hadbegun an internet relationship with the girl who was 15 years old at the time. The relationship continued over a seven-month period. Theoffender told the victim he was 20 years old.

During the course of their online relationship he convinced her to go on a Webcam nakedand masturbate so he could watch. The victim did so approximately 10 times. On the child luring charge the Crown argued an 18 monthconditional sentence was not an appropriate sentence. The court agreed a more severe sanction than a conditional sentence was required.The court imposed a 12 month jail sentence, which is what the Crown argued for on appeal. However, it noted that a sentence in excessof 12 months would have been appropriate on the luring charge in this case.

In addressing the luring charge the court noted child luringis dangerous and serious. It involves premeditated conduct specifically designed to engage an underage person in a relationship with theoffender with the goal of reducing the inhibitions of the young person so that he or she will be prepared to engage in further conduct thatis not only criminal but extremely harmful. The court said a proportionate sentence for internet luring must recognize the serious natureof this offence.

In the course of this decision the court noted that an approximate range of sentence for child luring is 1 to 3 yearsdepending on the details of the offence. [64] In R.v. Golden, 2009 MBCA 107, the offender, who was a 23-year-old man with no criminal record, appealed his sentence forthe offence of internet luring and making child pornography. The sentencing judge imposed a sentence of 12 months imprisonment forthe offence of internet luring and 18 months imprisonment, to be served consecutively, on the offence of making child pornography, fora total sentence of 30 months.

The Manitoba Court of Appeal allowed the offender's appeal and reduced the overall sentenced to 18months imprisonment. However, it maintained the length of the individual sentences imposed by the sentencing judge (i.e. 12 months forinternet luring and 18 months for making child pornography) but ordered that they be served concurrently. [65] In Golden, the offender argued his sentence should be served in the community under a conditional sentence order. He arguedthat the steps he had taken towards rehabilitation warranted a community sentence.

The court noted there was no evidence that theoffender presented a danger to the community. Furthermore, he had made significant rehabilitative gains. Moreover, the Criminal Codeprovides that an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.However, the court concluded that general deterrence and denunciation were far less likely to be realized by the imposition of aconditional sentence than by the imposition of a term of imprisonment.

In this case a sentence that permitted the accused to live in thecommunity, regardless of the degree of constraint, was far lighter punishment, and thus far less a deterrent to others, than a term ofimprisonment. [66] In R. v. Nichol, 2009 BCPC 124, the offender entered a guilty plea to internet luring. He engaged in internet chats with a girl hebelieved to be 13 years old who in fact was an undercover police officer. The chats continued for a number of months. The accused was28 years of age and had significant physical and mental health problems.

He had a prior criminal record which included a conviction as ayouth for sexual assault of a 10-year-old boy. He was sentenced to 20 months in jail and three years probation. Judge Rideout concludedthere were no exceptional circumstances that would justify the imposition of a conditional sentence. He said the emphasis must beplaced on general and specific deterrence coupled with denunciation of the conduct of the accused. [67] In R. v. Aimee, [2010] B. C. J.

No. 2026, the 29-year-old offender was sentenced for two counts of sexual assault, two counts ofsexual interference against persons under 18 and two counts of internet luring. The offender had no prior record. A psychologicalassessment concluded he was a fairly low risk to reoffend over the short term while subject to conditions and an increased risk of luringover long-term if he did not get treatment. The offender communicated with two different young girls. He communicated with one younggirl for a period of several weeks and the chats became quite sexually explicit.

His communications with the other girl were of a shorterduration and less explicit. One complainant was 12 years old when he first committed communicated with her and the other was 14 yearsold. The court found, in the context of the evidence as a whole, that it was left with a reasonable doubt as to whether the complainantshad told the offender their actual ages. However, the court found the offender was wilfully blind to the fact of their ages and had failed totake reasonable steps to ascertain their ages. The offender was sentenced to 16 months concurrent for the two counts of internet luring.

Those sentences were to be served consecutively with other sentences imposed in the case. In the course of reviewing the case law onchild luring offences, the court noted the cases demonstrate a range of sentence from 12 months to two years depending on theaggravating and mitigating factors. The court said a sentence greater than 12 months may be appropriate where there is a related criminalrecord, a moderate risk of reoffending and few mitigating factors. Sentences of less than 12 months will only be appropriate where thereare particularly mitigating factors. [68] In R. v.

McCall, 2011 BCPC 143, the offender was convicted of child luring and sentenced to 12 months in prison. The accusedcommunicated with an undercover police officer, who he believed to be a 16-year-old girl, for approximately two months, using acomputer both at home and at work. The offender was 40 years old. He worked as a security manager for a private security company. Apsychological report was prepared which indicated the offender presented a moderate risk of sexual recidivism. The offender refused toadmit culpability and the psychologist concluded it was difficult to fashion an appropriate counselling program.

The defence argued aconditional sentence order would be appropriate in the circumstances, whereas the Crown asked for a jail sentence in the mid-to-highprovincial range. Judge Rideout imposed a sentence of 12 months in prison. He found there were not the mitigating factors as set out inother cases. He declined the request for a conditional sentence order as the circumstances of Mr. McCall’s case did not meet the requisitecriteria. ANALYSIS Possession of child pornography [69] I will first deal with the offence of possession of child pornography. In the case of R. v. Kwok, (ON SC),[2007] O.J.

No. 457, Madam Justice Molloy acknowledged that each case turns on its own particular facts. However, she identified anumber of factors that have been taken into account by other judges when imposing sentences in similar cases. I find those factors areappropriate and helpful in determining a fit sentence in this case. [70] The factors which have been considered to be aggravating are:

a) whether the offender has a criminal record for similar or related offences;

b) whether there was also production or distribution of the pornography;

c) the size of the pornography collection;

d) the nature of the collection (including the age of the children involved and the relative depravity and violence depicted);

e) the extent to which the offender is seen as a danger to children (including whether he is a diagnosed pedophile who has acted on hisimpulses in the past by assaulting children); and

f) whether the offender has purchased child pornography thereby contributing to the sexual victimization of children for profit asopposed to merely collecting it by free downloads from the internet. [71] The factors which have been considered to be mitigating are:

a) the youth age of the offender;

b) the otherwise good character of the offender;

c) the extent to which the offender has shown insight into his problem;

d) whether the offender has demonstrated genuine remorse;

e) whether the offender is willing to submit to treatment and counselling or has already undertaken such treatment;

f) the existence of a guilty plea; and

g) the extent to which the offender has already suffered for his crime (for example, in his family, career or community). [72] In R. v. Donnelly, at paragraph 34, Mr. Justice Schultes noted that other sentencing cases "reveal certain influential factors indetermining the sentence" in child pornography cases. The factors he identified are similar to those identified by Madam Justice Molloyin Kwok.

He noted, however, that courts must balance these factors and attribute to them the relative weight that each deserves in theindividual case before the court. [73] The mitigating circumstances in this case are that R.Y. does not have a criminal record. He is now 24 years old (he was 22 yearsold at the time the luring offence occurred and the possession of child pornography offence was discovered) and is thus a youthfuloffender. He has shown some insight into his problem as reported by the probation officer.

The probation officer wrote that R.Y. did takeaccountability for his actions but he appeared to minimize what had taken place (in relation to possession of child pornography). R.Y.told the probation officer he was not a believer in deleting items from his computer and the images ultimately piled up. He is willing totake counselling. He accepted responsibility by entering a guilty plea. He has the active support of his father. He is in a new relationshipand has the support of his girlfriend. He is currently working and has been working for the same employer for over five years.

[ 74 ] The aggravating factors in this case include the size of the pornography collection which was 982 images of child pornography, and 32 movie clips of child pornography. The size of the pornography collection was not as large as that in some of the cases brought to my attention; however, a collection of approximately 1000 images of child pornography, in my view, is at the high end of a moderate collection. Another aggravating factor is the nature of the collection. The 10 sample photographs viewed by the court showed still images of pre-pubescent girls some as young as 4 to 6 years and 3 to 5 years.

The sample images were graphic and disturbing. I acknowledge, as noted by the defence, that there was no suggestion the pornographic images in the collection depicted violence, torture, or similar behaviour. However, while the relative depravity of the photographs in the collection may not be at the high-end, what is depicted is serious enough. In assessing the various factors to be taken into account in imposing a fit sentence judges must not lose sight of the fact, as noted in Sharp e, that the very existence of child pornography as defined in the Criminal Code is inherently harmful to children and to society.

Pornographic representations of children, on their own, violate the dignity and equality rights of children. Moreover, the harm of child photography is inherent because degrading, dehumanizing and objectifying depictions of children undermine the Charter rights of children and other members of society. The apparent young age of the children in R.Y.’s collection is of particular concern.

Another aggravating factor is that although R.Y.'s risk of future sexual violence is considered low, as long as he is under legal supervision in the community, the long-term risk will rise to low-to-moderate after any legal supervision is ended. [ 75 ] I next turn to range of sentence. I have considered the numerous cases provided by both counsel and the sentences imposed therein. In some of the cases specific reference was made to range of sentences for possession of child pornography. In Donnelly , Mr.

Justice Schultes concluded, absent a connection with actual child abuse offences or other serious related convictions, that sentences for possession of child pornography range from approximately 6 to 12 months imprisonment for a first offence. [ 76 ] In R. v. P.M.V . , Mr. Justice Hall, writing for the court, considered an appeal of a 45 day jail sentence for possessing child pornography and one year concurrent for making child pornography and invitation to sexual touching.

On appeal the court imposed a sentence of 18 months imprisonment, concurrent, for the making of child pornography and invitation to sexual touching convictions. It imposed a six months less a day consecutive sentence for the possession of child pornography conviction. It is clear that, in the circumstances of that case, the court wanted to impose a sentence in the provincial range to ensure the three years probation order imposed by the original sentencing judge would be available. It is also clear that the facts of that case are very different from the facts in R.Y.'s case.

Nevertheless, the comments made by the court are helpful in considering range of sentence. The court made it clear that the sentences imposed for making child pornography and invitation to sexual touching were "on the modest side". More importantly, it said that the sentence for possession of child pornography was "quite a lenient sentence" having regard to the amount of pornography the offender possessed. [ 77 ] In R. v. R.L.W. , Mr. Justice Gaul noted that the more recent case law reflects the courts’ growing concern with this type of crime.

He found that the range of sentence for the offence of possessing child pornography is a broad one; namely, between four months and two years in prison. On appeal to the British Columbia Court of Appeal, the court found the sentencing judge correctly identified the appropriate range of sentences for possession of child pornography. Mr. Justice Harris writing for the court noted: ...

I accept that based on the cases the range of sentences for possession of child pornography is broad, but, as the judge recognized, courts have over the years developed a greater appreciation of the harm caused to children by its manufacture, distribution and possession. More recent cases place greater emphasis on denunciation and deterrence and sentences have tended to increase. (at para. 49). [ 78 ] Possession of child pornography is a serious crime which affects not only the victims but society as a whole.

Accordingly, the objectives of denunciation and deterrence (both of the offender and other like-minded persons) are primary objectives to be considered in arriving at a fit sentence. However, rehabilitation of the offender must also be considered. R.Y. is 24 years old and thus a relatively young person. He has family support and has maintained employment for a number of years. He has challenges but, as noted by Dr. Tomita, he may be able to address those challenges through appropriate treatment programs. [ 79 ] The Crown has proceeded by indictment; therefore, R.Y. is subject to a 45 day minimum jail sentence.

The issue I must address is whether he should receive a sentence above the mandatory minimum and whether the sentence should be served on an intermittent basis (i.e. on weekends) as requested by him. After considering the objectives and principles of sentencing, the circumstances of this offence of possession of child pornography, R.Y.'s circumstances and the case law in similar cases, I conclude that a 90 day jail sentence is appropriate. However, I decline the defence’s request to have the sentence served intermittently.

In the circumstances of this case an intermittent sentence would not be sufficient to address the sentencing objectives of denunciation and deterrence. Internet child luring [ 80 ] I now turn to the offence of child luring. There is no mandatory minimum sentence for this offence; however, the submissions of counsel in this case, as well as sentences imposed in other cases, make it clear that a jail sentence is appropriate in the circumstances.

The issues I must decide in relation to the child luring offence is the length of the jail sentence and whether it should be served in “real jail" or in the community under a conditional sentence order. [ 81 ] A number of the cases referred to by counsel comment on the range of sentence for child luring offences. In Paradee , the Alberta Court of Appeal noted that an approximate range of sentence for luring is 1 to 3 years in jail depending on the details of the offence. In that case, on appeal, the court varied the sentence and substituted a 12 month jail sentence for an 18 month conditional sentence order.

The court noted that a sentence in excess of 12 months would have been appropriate in that case, but it imposed a 12 month jail sentence because that is what the Crown had argued for on appeal. [ 82 ] In Aimee , the court noted that a review of the case law indicates a range of sentence from 12 months to two years depending on the aggravating and mitigating factors. The court further noted that a sentence greater than 12 months may be appropriate where there is a related criminal record, a moderate risk of reoffending and few mitigating factors.

However, a sentence of less than 12 months will only be appropriate where there are particularly mitigating factors.

[83] In El-Jamel, a majority of the Ontario Court of Appeal upheld a 12 month conditional sentence for child luring to be servedconsecutively with a 45 day jail sentence for possession of child pornography. The majority noted that the sentencing judge hadproceeded in a manner consistent with the relevant case law issued by that court. It referred to the fact that the sentence imposed wasoutside the usual range but that the sentencing judge had provided adequate reasons for doing so. [84] In Jarvis, the court upheld a six month term of imprisonment for a child luring offence.

The court noted that a review of thecases submitted suggested a range of sentence for luring of between 12 months to two years. The court noted that it considered thesentence imposed by the sentencing judge to be a lenient one; however, it could not say the sentence was manifestly unfit.

The courtfurther noted the sentence was below the usual range but that the judge was cognizant of this and had taken into account a number ofmitigating factors and the absence of any serious aggravating factors. [85] In Woodward, the Ontario Court of Appeal considered a sentence of 18 months for a child luring offence as well as sentencesimposed for other related offences. The court dismissed the appeal and in doing so commented on the Jarvis decision.

It was notpersuaded that the court in Jarvis was purporting to set the range of sentence for the offence of child luring at 12 months to two years.However, if the court had done so the range needs to be revised given the 2007 amendment in which Parliament doubled the maximumpunishment from five years to 10 years. [86] The mitigating factors I outlined in relation to the possession of child pornography offence also apply to the child luring offenceand will not be repeated here. As to aggravating circumstances, I find the following.

This was not a spur of the moment interaction as thechats between R.Y. and the alleged young girl took place between October 11 and October 26, 2011. R.Y. contacted the young girl, notthe other way around. During their first chat it was established that the girl was actually 13 years old. It is clear that R.Y. understoodhow young the girl was. After that first chat there was, at the very least, some planning and deliberation. During the second chat whichoccurred the following day the conversation quickly became overtly sexual and explicit.

During that second chat R.Y. raised the issue ofwhether they could meet for Halloween. It was clear that the purpose of the meeting was to engage in sexual touching of one another. During the first three chats R.Y. made it clear, directly and indirectly, that he would like to be her “first” and that he could teach herthings. During the third chat he suggested that he could go to her aunt’s house when she was alone. During the fourth chat R.Y. againraised the issue of when they could meet. It is clear he was pushing the girl to meet up with him.

In other conversations R.Y. discussedhow they could start a video call. In another call R.Y. was trying to find out where the girl lived. Eventually, an arrangement was madethat they would meet on October 26, 2011. It was clear from the tone of the communications before the meeting that the plan was toengage in sexual contact once the meeting took place. R.Y. was arrested at the pre-arranged meeting place. [87] In the recent Paradee case the Alberta Court of Appeal commented on the nature of child luring offences at paragraph 12.

Itnoted that luring is dangerous and involves premeditated conduct specifically designed to engage an underage person in a relationshipwith the offender. It further pointed out that Parliament has recognized that the internet has infinitely expanded the opportunity forpredators to attract or ensnare children. The court noted that a proportionate sentence for internet luring must recognize the serious natureof this offence.

Further having regard to the seriousness and prevalence of the offence of internet luring a fit sentence must recognize theprimary sentencing objectives of deterrence and denunciation. [88] In Woodward, the Ontario Court of Appeal noted that although the effects of a conviction and the offender's prospects forrehabilitation always warrant consideration, the objectives of denunciation, deterrence and the need to separate sexual predators fromsociety must take precedence.

I acknowledge, however, that the rehabilitation of the accused must also be taken into account, albeit itmay not be as pressing an objective as denunciation and deterrence. [89] In the circumstances of this case, I am satisfied that a period of incarceration in the provincial range would be appropriate.Given that conclusion, I must consider whether a conditional sentence, as submitted by the defence, is a fit sentence in the circumstances. [90] Having concluded the appropriate range of sentence for this child luring offence in this case falls within the provincial sentencerange, I next need to consider whether the other prerequisites set out in s.742.1 of the Criminal Code are met.

Those prerequisites are: a. There is no minimum term of imprisonment; b.The court is satisfied that serving the sentence in the community would not endangerthe safety of the community; c. Serving the sentence in the community would be consistent with the fundamentalpurpose and principles of sentencing set out in ss.718 to 718.2. [91] First, there is no minimum term of imprisonment for child luring. Therefore the next question to be addressed is whether thesafety of the community would be endangered if R.Y. was allowed to serve the sentence in the community.

In other words, is there arisk that R.Y. would reoffend and, if so, what is the gravity of the damages which could ensue? For the purpose of this decision I willassume, without deciding, that allowing R.Y. to serve the sentence community would not endanger the safety of the community. [92] Accordingly, the final point I must consider is whether serving the sentence in the community would be consistent with thefundamental purposes and principles of sentencing to which I have previously referred. The Supreme Court of Canada in R. v.

Proulx,2000 SCC 5 , [2000] 1 S.C.R. 61, said serious consideration should be given to the imposition of a conditional sentence in allcases where the first three prerequisites are satisfied. In fact, at paragraph 90 the court said it would be an error in principle not toconsider the possibility of a conditional sentence seriously when the statutory prerequisites are met. The court in Proulx further statedthat a conditional sentence can meet the objectives of denunciation and deterrence.

Further, a conditional sentence may be imposed evenin cases where there are aggravating circumstances relating to the offence or the offender. [93] Many sentencing decisions have noted that the imposition of a conditional sentence is not necessarily less onerous than a period

of real jail. It has also been noted that the length of term of conditional sentence orders is generally longer in duration than the real jail term that may be imposed. Moreover, it should be noted that with a conditional sentence the parole and/or remission provisions applied by the corrections services do not apply. Further, the ramifications for a breach of the conditions of a conditional sentence order can be significant: see R. v. Holmes , [2009] O.J.

No.702 . [ 94 ] In the circumstances of R.Y.'s case I have concluded a conditional sentence order would not adequately serve the sentencing objectives of denunciation and deterrence. I adopt in part the analysis in Jarvis ; namely, that given the degree of planning implicit in the offence and the seriousness of the conduct contemplated the objectives of general deterrence and denunciation would not be satisfied by granting R.Y. a conditional sentence.

R.Y. not only communicated with the girl he thought was only 13 years old but he was planning to engage in sexual activity, including sexual touching, with her knowing full well she was only 13 years old. I have taken into account R.Y.’s personal circumstances and in particular the mitigating circumstances. I have also taken into account those cases brought to my attention by counsel where conditional sentences were imposed. However, the mitigating circumstances in this case are not sufficient to warrant a conditional sentence order.

The sentence imposed on R.Y. for child luring is 12 months in prison to be served consecutively with the 90 day sentence for possession of child pornography. The acts constituting the two offences were not part of a linked series of acts within a single endeavour; therefore a concurrent sentence is not appropriate. Ancillary orders [ 95 ] I make the following ancillary orders: (

a) R.Y. must provide a DNA sample pursuant to s. 487.051 for entry into the DNA database; (

b) a SOIRA order under s. 490 .012 will apply for a period of 20 years; (

c) a forfeiture order is made in favour of the Crown pursuant to s. 164.2 for all computer equipment, accessories , peripherals and data seized from R.Y. in relation to this case; (

d) an order, for a period of 10 years, under s.161 (1) (a) (

b) and (

c) prohibiting R.Y. from attending any public park or public swimming area where persons under the age of 16 are present or can reasonably be expected to be present, or a day care centre, school ground or community centre. R.Y. must also not seek, obtain or continue 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 authority towards persons under the age of 16 years.

Further, R.Y. is not to possess or use any computer system within the meaning of s. 342.1 (2) for the purpose of communicating with any person under the age of 16 years. [ 96 ] Upon conclusion of R.Y.'s prison sentence he will be placed on probation for a period of three years on the conditions set out in Appendix A to this decision which will constitute the terms of the order. _____________________________ The Honourable Judge M. F. Giardini Provincial Court of British Columbia APPENDIX A Probation conditions : 1. You shall keep the peace and be a good behaviour; 2.

You shall report in person to a probation officer at 275 E. Cordova St., Vancouver, British Columbia by 4:00 p.m. of the next business day following your release from custody and thereafter as directed by your probation officer; 3. You shall reside where directed by your probation officer and not change that place of residence without the prior written approval of the probation officer; 4. You must notify your probation officer forthwith of any changes of name, address, employment or occupation; 5.

At the direction of your probation officer you must attend, participate in, and complete any assessment, counselling or other programs as directed by your probation officer including, but not limited to, sex offender treatment programs; 6. You are not to possess or use any computer system within the meaning of s. 342 .1(2), for the purpose of communicating with any person under the age of 16 years.

7. You are not to possess any cell phone, smart phone or other personal electronic device, (for example: iPhone, Blackberry, Android or iPad) which has internet access except at your place of employment and then only for employment purposes. CORRIGENDUM - Released July 30, 2015 In my Reasons for Judgment dated November 13, 2013, the following changes have been made: [1] In the second sentence of paragraph 22, the word “order” has been added. The sentence will now read: Additionally, the Crown seeks a three year probation order, orders under s. 161 (a) (

b) and (c), forfeiture of the materials seized by the police, a DNA order under s. 487.051 and an order for registration in SOIRA.