His Majesty the King - v. -, 2023 SKPC 52

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 52 Date: November 20, 2023 Informations: 991220856 and 991219064 Location: Saskatoon _____________________________________________________________________________ Between: His Majesty the King - and - Jeric Villareal Mendoza Appearing: A.J. Clements and L.N. Lê For the Crown N.R. Rohachuk For the Accused SENTENCING DECISION Q.D.

AGNEW , J [ 1 ] The defendant, Jeric Villareal Mendoza, came before me for sentencing having pled guilty to the following charges: Information 991220856 : (1) that he did, on or about October 26, 2022, at or near Saskatoon, obtain for consideration the sexual services of a person under the age of 18 years, contrary to s. 286.1(2) of the Criminal Code ; Information 991219064 : (2) that he did, between October 26, 2022 and January 5, 2023, at or near Saskatoon, possess child pornography, contrary to s. 163.1(4) of the Criminal Code ; (4) that he did, on or about October 26, 2022, at or near Saskatoon, make child pornography, contrary to s. 163.1(2) of the

Criminal Code ; (6) that he did, between September 1, 2022 and December 22, 2022, at or near Saskatoon, lure a child by means of telecommunication communication with a person believed to be under the age of 16 to facilitate an offence under s. 271 of the Criminal Code , contrary to s. 172.1(1) (

b) of the Criminal Code ; (7) that he did, on or about October 26, 2022, at or near Saskatoon, commit a sexual assault, contrary to s. 271 of the Criminal Code . Facts [ 2 ] In September, 2022, the accused’s daughter had a birthday party at her home. One of the invitees was the complainant, AB. The accused found and photographed AB’s identification and, from AB’s notebook, her personal contact and emergency contact information. From that material, it would have been obvious that AB was 14. At the time, the accused was 44. [ 3 ] Subsequently, the accused contacted AB via text-messaging.

The accused concocted an elaborate scheme to conceal his identity from AB, including setting up an email account under a different name (“Chris Lander”), and using Voice over Internet Protocol (VoIP) to text her without disclosing his phone number. He told her he was Chris, from Edmonton, and 30 years old. He persuaded her to take nude images of herself and email them to him and instructed her to delete everything so there would be no trace left.

During the course of these interactions, AB told “Chris” that she was 14, and that she was a “cutter”, and showed him her scars. [ 4 ] Over the course of a month, he convinced her to have sexual intercourse with him. AB was at the time a virgin, and the accused promised to pay her to allow him to have intercourse and to video it. In keeping with his desire to conceal his identity, he rented an Airbnb apartment in Saskatoon under a false name for October 26, 2022.

Rather than giving her that address, he sent her to a variety of addresses via text message, including having her stop and wait at a street corner at one point - presumably so he could ensure that she was not being followed and had not told anyone where she was going. Once at the apartment, still without having ever seen the accused, she was instructed to put on a set of goggles left there, which completely obstructed her vision. He gave her $1,500.00. AB’s understanding was that the money was specifically for allowing the accused to “take” her virginity and to record the act, which he did.

They performed oral sex on each other, and penetrative vaginal sex without the accused using a condom. [ 5 ] After this encounter, the accused continued his contact with AB, and he scheduled another sexual encounter for December, 2022. The accused was again going to pay AB, although an amount was not settled upon. The accused broached the possibility of them having a threesome. He tracked AB’s periods, specifically so that he could ejaculate inside her without a condom and in the hope of not making her pregnant. He continued to remind her to delete their messages, and to demand photos from her.

He again rented an Airbnb apartment for this encounter. His plan was foiled only by a counsellor at AB’s school becoming aware of the situation and notifying AB’s mother, who then went to the police. [ 6 ] Subsequent analysis of the accused’s phone and camera found the history of texting between the accused and AB, along with 110 unique photographs of AB constituting child pornography. There were also 43 unique child pornography videos, 42 of which were of AB. Twenty of the videos were of AB and the accused engaging in sexual acts at the Airbnb, and all show AB wearing the goggles.

The accused asserted that these are, in effect, one lengthy video which has been cut into various segments. He did not choose to indicate why this would have been done. Sentence minimums and maximums [ 7 ] Pursuant to the Criminal Code [ Code ], the following are the mandatory minimum sentences, and the corresponding maximum allowable sentences, for each of Mr.

Mendoza’s offences: Information 991220856 - count 1 - obtain sexual services of a minor for consideration (s. 286.1(2)) - minimum 6 months, maximum 10 years; Information 991219064; - count 2 - possession of child pornography (s. 163.1(4)) - minimum 1 year, maximum 10 years (by indictment); - count 4 - making child pornography (s. 163.1(2)) - minimum 1 year, maximum 14 years ; - count 6 - internet luring (s. 172.1(1)(b)) - maximum 14 years (by indictment); - count 7 - sexual assault (s. 271) - minimum 1 year, maximum 14 years.

Crown’s sentencing position [ 8 ] The Crown suggests that I impose the following sentences on Mr. Mendoza: Information 991219064 - count 7 - sexual assault - 5.5 years, reduced to 4.5 years in consideration of the principle of totality, to be served consecutively with other sentences - count 6 - child luring - 3.5 years, reduced to 2.5 years for totality, consecutive to other sentences

- count 4 - make child pornography - 2.5 years, reduced to 1.5 years for totality, consecutive to other sentences - count 2 - possess child pornography - mandatory minimum of 1 year, to be served concurrently with the sentence for count 4 Information 991220856 - count 1 - obtain sexual services of a minor for consideration - mandatory minimum of 6 months, to be served consecutive to other sentences [ 9 ] The Crown therefore urges me to conclude that appropriate sentences for the accused’s offences would total 13.5 years in custody, and to reduce that amount to a total of 9 years in accordance with the principle of totality. [ 10 ] As of today, Mr.

Mendoza has been on remand for these offences for 320 days. After enhancement at 1:1.5, he has a remand credit of 480 days to be applied against his sentence. [ 11 ] The Crown also seeks: (

i) a DNA order pursuant to s. 487.051; (ii) a SOIRA order for 20 years, pursuant to s. 490.013(2); (iii) forfeiture of the following items, all used in carrying out the offences: - Canon E05 bag and contents, including camera - Vital tripod in box - Dynes tripod - Capital One credit card ending in 1778 - Zed Optics case and contents - Acer laptop and cord - cellphone - Qimic tripod/phone holder - Movo tripod/phone holder (iv) a 20-year order under s. 161(1) prohibiting Mr. Mendoza 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, school yard, playground or community centre, provided however that he may do any of these in the physical presence of a sober responsible adult who is aware of Mr. Mendoza’s convictions; (a.1) being within two kilometres of any dwelling-house, place of education or place of employment of AB; (

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 a person under the age of 16 years; (

c) using a computer system within the meaning of s. 342.1(2) for the purpose of communicating with a person under the age of 16 years; (

d) using the Internet or other digital network to directly or indirectly access any social media sites, social network, internet discussion forum or chat room, or maintain a personal profile on any such service (including but not limited to Kik, Facebook, Twitter, Tinder, Instagram, or any equivalent or similar service). He is to consent to a forensic search and examination by any peace officer of any device capable of accessing the internet or other digital network, or computer system within the meaning of

section 342.1, this is found in his possession or under his control, up to a maximum of two times per calendar month and he shall provide the correct passcode, including biometrics passcodes, to any peace officer, to any device capable of accessing the internet or other digital network or to a computer system within the meaning of s. 342.1 that may be found in his possession or control, to a maximum of two times per calendar month.

Defence sentencing position [ 12 ] Defence urges me to impose the mandatory minimum for each offence, concurrent where allowed by law: Information 991219064 - count 7 - 1 year - count 6 - child luring - 1 year - count 4 - make child pornography - 1 year - count 2 - possess child pornography - 1 year, concurrent to count 4

Information 991220856 - count 1 - obtain sexual services of a minor for consideration - 6 months [ 13 ] Defence therefore seeks a total sentence of 3.5 years, less remand time. Defence objects to the 20-year s. 161(1) order on the basis that it is unnecessary and would create undue hardship for Mr. Mendoza, although the nature of that hardship was never articulated. [ 14 ] Defence’s position was that I should impose the mandatory minimums for each offence.

Subsequent to counsels’ submissions, the Supreme Court of Canada struck down the mandatory minimum sentence for the luring offence ( R v Bertrand Marchand , 2023 SCC 26 [ Bertrand Marchand ]). I chose not to ask for further submissions from counsel following that decision, since as will be seen I do not consider the previously-mandatory minimum to be an adequate sentence for Mr. Mendoza in any event. The accused’s circumstances [ 15 ] Mr. Mendoza was born into poverty in the Philippines, and at an early age had to work to help support his family.

Despite this, he did very well in school, eventually going to university and earning an MBA. He came to Canada where, since 2014, he has been self-employed. He has two children with his wife, a son aged 5 and a daughter now 15 or 16. His wife works outside the home, while Mr. Mendoza prior to his arrest worked from home and was therefore able to look after the children. There is no doubt but that his arrest and conviction had, and will continue to have, a profound impact on the lives of his wife and children.

His lengthy absence from their lives will no doubt have a significant effect on their emotional and financial futures. Aggravating factors [ 16 ] I find the following to be aggravating factors: (

a) grooming - the “relationship” between the accused and AB grew from him contacting her (randomly, in her understanding), to discussions about her school, her likes and dislikes, hobbies, etc., including discussions of her cutting behaviour. The intensity of his grooming can be seen in the fact that over the course of the three months that they communicated, there were over 700 text messages exchanged. AB trusted the accused to the point that she stated that she did not ask for a picture of him because, she said, she did not care what he looked like, she only wanted his kindness and attention. He, of course, wanted nude photographs of her and, ultimately, sex; (

b) mental state of AB - the accused knew from their discussions that she was a “cutter”; (

c) degree of planning - the accused set up a false identity to use for communicating with AB, and a different identity to rent the Airbnb with. He obtained the goggles for AB to wear in the apartment so she could not see him: clearly not a normal form of goggles. He set up the apartment in advance with camera and tripod to record his sexual assaults on AB. He was aware of the risk of being caught, and led AB through a variety of “checkpoints” on her way to the Airbnb. He insisted that she delete his communications, again apparently from fear of being caught; (

d) failure to use a condom - the accused exposed AB to the possibility of pregnancy. (

e) lack of empathy - as noted elsewhere in these reasons, Mr. Mendoza has expressed no remorse for his victim, or any understanding of the harm he has done. (

f) child victim - pursuant to s. 718.2(a)(ii.1), the fact that AB was under the age of 18 years is an aggravating factor with respect to the sexual assault. It is not an aggravating factor with respect to the other offences because they require that the victim be under 18 (or 16, in the case of the luring offence) and the aggravating factor of the age of the victim must be presumed to have been taken into account by Parliament in setting the punishment for those offences. Mitigating factors [ 17 ] I find the following to be mitigating factors: 1. guilty plea - Mr.

Mendoza has given up the possibility, however strong or slight, of being found not guilty had these matters proceeded to trial. He has also spared AB the need to testify about these events. 2. personal circumstances - Mr. Mendoza has, he says, the support of his spouse. He is self-employed and highly educated, having overcome a childhood of poverty. [ 18 ] The fact that Mr.

Mendoza does not have a prior criminal record is not a mitigating factor, as defence suggests, but rather is the absence of an aggravating factor. [ 19 ] Additionally, to be very clear, whatever degree of willing participation AB may have had in these events is not a mitigating factor. As a matter of law, AB was unable to consent.

Additionally, the Supreme Court of Canada in R v Friesen , 2020 SCC 9 , [2020] 1 SCR 424 [ Friesen ] made it clear that such participation is not a mitigating factor, and treating it as such “would undermine the wrongfulness of sexual violence against a child, who is under the legal age of consent, to ‘tel[l] the offender that, although he is technically guilty . . ., he really isn’t at fault or responsible,” and that the victim is really to blame for his behavior”(para. 149, citations omitted).

The Court was explicit that not only is victim participation not a mitigating factor, it is “not a legally relevant consideration” (para. 150). Indeed, the Court indicated that where, as here, the victim’s participation is the result of a campaign of grooming, that is an aggravating factor, not a mitigating one (para. 153).

[ 20 ] Defence puts forward Mr. Mendoza’s “genuine remorse” as a mitigating factor. As noted elsewhere in these reasons, I have not heard any statement of such remorse from Mr. Mendoza. To the extent that he has instead made it through his counsel, I accept it on that basis. [ 21 ] Defence argues that there is no indication of any risk of re-offending. Again, I have addressed that matter elsewhere in these reasons.

Suffice it to say that I do not find the dearth of indicators that defence sees. [ 22 ] Defence also argues that the accused’s actions do not constitute a “major sexual assault involving a child” because it was part of “a unique relationship that unfolded over time”. With the greatest of respect, defence misunderstands the term “major sexual assault”. The term refers to the nature and specifics of the actus reus itself, in the context of the circumstances.

This was set out by our Court of Appeal recently in R v Bear , 2022 SKCA 69 , [2023] 6 WWR 252 (para. 78 ): The determination of whether the major sexual assault label applies to an offence requires consideration of all of the relevant circumstances.

Offences involving penile penetration , forced intercourse, or other forms of sexual activity such as fellatio or cunnilingus are generally understood as constituting major sexual assaults, but none of those things are prerequisites to such a finding (see, for example: R v L.V. , 2016 SKCA 74 at paras 55-60 , 480 Sask R 181; R v Thompson , 2017 SKCA 33 at paras 49-53 ; R v Leroux , 2015 SKCA 48 at paras 66-67 , 460 Sask R 1; and R v AB , 2021 SKCA 119 at para 45 ).

Other factors, including the intrusive, violative, or degrading nature of the sexual contact, the age or vulnerability of the victim, the nature of the relationship between the offender and the victim, or the duration or number of instances of the offending conduct may each individually, or in combination, serve to place an offence in the major sexual assault category.

Of particular relevance to the circumstances at hand, this Court has repeatedly held that sexual assaults committed against sleeping or unconscious victims are particularly serious, and "should not be approached in such a way as to effectively reward an offender for taking advantage of a helpless victim rather than one who is in a position to resist the assault" ( R v Chanalquay , 2015 SKCA 141 at para 45 , 472 Sask R 110 [ Chanalquay ]; see also: R v Okemaysim , 2021 SKCA 33 at para 79 [ Okemaysim ]; R v Cappo (1993), 116 Sask R 15 (CA) at para 13 ; and R v M.J.H. , 2004 SKCA 171 at para 16 , 257 Sask R 1). [emphasis added] [ 23 ] Mr.

Mendoza, through his counsel’s brief (para. 5 on page 2), accepts the facts as set out in paras. 1 - 27 of the Crown’s brief. Those facts include that the accused and AB performed oral sex on each other (para. 8) and that they had vaginal intercourse without a condom (para. 22, point 3). Accordingly, the sexual assault was in fact a major sexual assault. [ 24 ] Additionally, the reference to a “unique relationship that unfolded over time” is both damning and informative. Although I recognize that the words are counsel’s, the sentiment is precisely what Mr. Mendoza has argued throughout the sentencing process.

To make my view absolutely clear, whatever Mr. Mendoza may have thought he was doing, what was actually going on was that he was grooming a vulnerable young woman over the course of about a month in order to use her for his own sexual pleasure. His belief that this was a “relationship”, let alone an appropriate one which should mitigate his culpability, raises significant concerns about his risk to re-offend. The accused’s statement [ 25 ] During the sentencing hearing, the accused chose to speak.

He made several points: 1. he regrets “everything that led us to this situation”; 2. he himself has lost “everything” as a result of these charges; 3. his wife has forgiven him (according to him - there were apparently no family members present in the courtroom during the sentencing hearing); 4. his risk to re-offend is non-existent because, he says, “I won’t let my family go through this again.” [ 26 ] There are several points of interest in Mr. Mendoza’s remarks. [ 27 ] His first comment is notably in the passive voice - events “led us to this situation”. This is a blatant misstatement of the facts. Mr.

Mendoza was not a leaf in this stream of events, pulled haplessly along without any degree of control, as his phrasing suggests. He created it all. It was his choices and his actions, from start to end, which resulted in “this situation” - that is, convincing a 14-year old girl to create and send to him intimate photographs of herself, him sexually assaulting her, and him creating videos of him sexually assaulting her. “Events” did not lead either Mr. Mendoza or AB to this situation: Mr. Mendoza himself did. He is solely responsible.

His statement is a blatant attempt to minimize his responsibility. [ 28 ] His second, third and fourth remarks are notable because they focus on the effects of his actions on himself and his family. Throughout his statement, there was no mention of AB, the victim of his predation: no word of remorse for what he put her through, what she might still be enduring. Even after hearing a powerful and moving victim impact statement from AB’s mother, read out loud in court in front of him, he apparently gave no thought to AB or her family.

His lack of empathy for his victim is striking. [ 29 ] The accused, through his lawyer, expressed the view that he and AB had developed a “relationship”, that it was not his intention at the outset for matters to become sexual. When he rooted through AB’s belongings on September 24, 2022 and photographed her contact information, he was “lonely”. He saw AB as someone mature enough to have a relationship with and he lost sight of her age. As a matter of law, I am required to accept the accused’s statements as true unless there is a sentencing hearing at which they can be tested. [ 30 ] Thus, Mr.

Mendoza, a mature man of 44 years, living with his wife and children, was lonely and decided that an appropriate outlet for his loneliness was to begin a relationship with a 14-year old girl. Although he asserts through counsel that he did not

“necessarily” believe the relationship would be sexual, it clearly turned sexual in his mind almost immediately: by October 26, 2022, just one month after he photographed AB’s contact information, he had contacted her, had convinced her provide him with nude photographs of herself and had persuaded her to meet him at a rented apartment for sex. It is not clear to me how him paying $1,500.00 to AB for sex fits into his narrative of a “relationship”.

Furthermore, after that encounter, he was not filled with remorse, he did not cut off contact with AB; rather, he continued contact, persuading her to engage in another sexual encounter in December, 2022, risking her becoming pregnant by planning to have sex without a condom and rely on his calculation of her likely fertility by timing her period, and attempting to expand matters by discussing bringing a third person into their sexual activities. [ 31 ] The notion that he, as a 44-year old man, thought that this was appropriate in any way is extremely concerning, both as an aggravating factor in the present matter and as a factor regarding his likelihood to re-offend.

Risk of re-offending [ 32 ] The accused’s lack of empathy for AB is a concern in terms of his re-offending. He expressed no concern about the harm which he has inflicted on her or the consequences, both short- and long-term, which she might have to endure. It appears that these simply do not exist for him. [ 33 ] His risk of re-offending must also be considered in light of certain other circumstances.

In addition to the photographs he took of AB which constitute child pornography, he also had a number of photographs and videos of prepubescent and pubescent girls in bikinis and other scanty clothing, in sexually-suggestive poses.

This suggests that his sexual interest is not limited to AB alone, but to girls of her age and younger generally. [ 34 ] Between his minimizing his offences, his lack of empathy for his victim, his obvious sexual interest in young girls in addition to AB and his own statement that, in effect, it is only his concern for his own family that will be the bar to him re-offending, the Court clearly must be concerned that the sentence imposed be sufficient to deter Mr. Mendoza. Sentencing principles [ 35 ]

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

a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct; (

b) to deter the offender and other persons from committing offences; (

c) to separate offenders from society, where necessary; (

d) to assist in rehabilitating offenders; (

e) to provide reparations for harm done to victims or to the community; and (

f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community. [ 36 ] Pursuant to s. 718.01, the primary consideration in the present matter is denunciation and deterrence: 718.01 When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct. [ 37 ] This directive from Parliament is separate and distinct from the stipulation that the fact that a victim is a child is an aggravating factor (s. 718.2(a)(ii.1). [ 38 ] Additionally, I note the following sentencing directives from the Code : sentences should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances (s. 718.2(b)); consecutive sentences should not be so long in totality that the combined sentence would be unduly long or harsh (s. 718.2(c)); child sexual offences, including child pornography offences, are required to be consecutive to each other ( s. 718.3(7) ).

Case law [ 39 ] The Supreme Court of Canada has recently given guidance on sentencing in child sexual assault cases, in Friesen . In that decision, the Court stated, “Protecting children from wrongful exploitation and harm is the overarching objective of the legislative scheme of sexual offences against children in the Criminal Code ” (para. 42).

The Court referred to the prevalence of sexual violence against children, including child-luring and child pornography incidents, and the way that social media and the internet have provided sexual offenders with “unprecedented access” to child victims, including inducing children to perform sexual acts on camera (para. 47). The Court directed that: mid-single digit penitentiary terms for sexual offences against children are normal and . . . upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.

We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim (para. 114)

[ 40 ] The Supreme Court of Canada (at para. 117) also explicitly adopted the comments of the Saskatchewan Court of Appeal in R v L.V. , 2016 SKCA 74 , 480 Sask R 181 [ L.V. ]: We agree with the Saskatchewan Court of Appeal that "assaults against a child should normally warrant a stronger sanction" than assaults against an adult ( L.V. , at para. 101 ).

As Richards C.J.S. wrote, "sentencing results should reflect this reality" so that they give effect to the will of Parliament as expressed in ss. 718.01 and 718.2(a)(ii.1) and (iii) of the Criminal Code (para. 102). [ 41 ] Crown and defence have agreed that Friesen constitutes a directive to lower courts that sentences for sexual offences against children should be increased over those which had previously been given. I agree with that

interpretation. Accordingly, although pre- Friesen sentencing precedents are not irrelevant, they must be considered in light of that directive. [ 42 ] The Supreme Court in Friesen also set out a non-exhaustive list of significant factors for sentencing judges to consider in determining a fit sentence for sexual offences against children.

Those are: 1. likelihood to re-offend; 2. abuse of a position of trust or authority; 3. duration and frequency; 4. age of victim - noting that, although the Court indicates that generally sentences should be higher for offences against younger children, the courts must be aware that adolescents, particularly adolescent girls, “may be an age group that is disproportionately victimized by sexual violence”, and that “sexual violence by adult men against adolescent girls is associated with higher rates of physical injury, suicide, substance abuse, and unwanted pregnancy” (para. 136); 5. degree of physical interference.

The Court particularly notes that “penile penetration, particularly when unprotected, can be an aggravating factor because it can create a risk of disease and pregnancy” (para. 139); 6. victim participation - this is not a mitigating factor (para. 149), and may well be evidence of grooming by the accused (para. 153). “Adults, not children, are responsible for preventing sexual activity between children and adults.” (para. 154) [citations omitted] [ 43 ] Friesen was recently affirmed and expanded upon by the Supreme Court in Bertrand Marchand with respect specifically to the offence of child luring.

The wrongfulness of luring, and the harm done by it separate and apart from other offences, are the subject of detailed comments by the Supreme Court (paras. 34 – 45, 48). The Court also notes Parliament’s direction that sentences for luring are to increase from what had previously been considered appropriate (paras. 46 and 47). As indicated above, I chose not to ask for further submissions from counsel in light of Bertrand Marchand .

Having reviewed the Supreme Court’s comments with care, I believe that counsel’s submissions, particularly in light of Friesen , adequately addressed the matters raised by the Supreme Court. Bertram Marchand largely builds on Friesen and other existing caselaw; indeed, Friesen itself is cited six times in paragraphs 35 through 45, and again in paragraph 48. Neither counsel applied to re-open their submissions after Bertram Marchand was handed down, which leads me to believe that they likewise considered that their existing submissions were sufficient.

Child pornography [ 44 ] With respect to making and possessing child pornography, the Crown has cited: - R v Gryba, 2016 SKQB 123 . Mr. Gryba had a collection of almost 13,000 unique videos and images. He also created child pornography by surreptitiously recording two boys changing in a locker room. He was sentenced to 18 months on each “creation” charge, consecutive to each other, 17 months less 1 day consecutive for one count of possession and 12 months concurrent on the other possession charge - R v MacDonald , 2018 SKQB 18 .

On a single count of possession of child pornography, the accused was sentenced to 16 months’ incarceration for a collection of 4,512 images and 52 videos; - R v Leier , 2017 SKCA (SentDig) 23. Again, a single count of possession of child pornography, respecting a collection of 699 images, which resulted in a sentence of three years. [ 45 ] I also note the following cases: - R v Pattison , 2012 SKQB 330 , 403 Sask R 145.

A 22-year old accused with no related record who had been viewing child pornography since he was 14, with a collection of over 4,000 child pornography computer files, pled guilty to 53 counts of possession, distribution, accessing, producing and making available child pornography. He received a sentence of five years; - R v Lorenz , 2012 SKQB 391 , 402 Sask R 51. The accused, 42, pled guilty to a single charge of possession of child pornography, and was sentenced to nine months’ imprisonment and probation, based on possession of 449 computer files; - R v Benson , 2012 SKCA 4 , 385 Sask R 164.

An 18-year old man’s 15-month sentence was upheld by the Court of Appeal. He had been convicted after trial of two counts of possession of, and one count of making available, child pornography. He had a “large quantity” of child pornography. He had no record. [ 46 ] All of these decisions are of limited assistance, as they are sentencings of “collectors” of child pornography, whereas Mr. Mendoza had only child pornography photographs of AB.

[47] One of the known harms of making child pornography is the lifelong concern a victim can have that their photographs andvideos will be distributed and will be in the public for the victim’s lifetime, even completely unknown to the victim - see, for example,the victim statement in R v Kwok, (Ont Sup Ct) at para. 51. So far as is known, the accused did not distribute any ofthe child pornography, nor is he charged with that offence. AB, however, will have to live with that possibility.

She has no way ofknowing with certainty whether or not he has shared any of those files, and that uncertainty is one of the harms that Mr. Mendoza hasdone her by causing the creation of this child pornography. Luring [48] The Crown has cited my own sentencing decision in R v Kurban (2022), Saskatoon, Information 991156062 (Sask Prov Ct),in which I accepted a joint submission for a 3.5-year sentence for child luring involving three victims, as well as for possession of childpornography. With respect, I do not consider it a useful practice to cite joint submission decisions as sentencing precedents.

In R vStupnikoff, 2013 SKPC 57 at para 54, 416 Sask R 307 [Stupnikoff] I made the following comments: As is well-known both to counsel and to the Court, a joint submission is to be given very serious consideration by the sentencing judge,and rejected only if it would be clearly inappropriate, such as where it is demonstrably unfit, would be contrary to the public interest orwould bring the administration of justice into disrepute.

The range of "not clearly inappropriate" can be quite broad, such that thesentence imposed by virtue of a joint submission may be significantly different than what the Court would have imposed in its absence.Since a sentence imposed as a result of a joint submission is therefore not the result of unfettered judicial reasoning, I think it should begiven less weight as a precedent. [49] Those comments were made prior to the Supreme Court of Canada’s decision in R v Anthony-Cook, 2016 SCC 43, [2016] 2SCR 204 [Anthony-Cook], where the Court directed sentencing judges to accept a joint submission unless it is: . . . so unhinged from the circumstances of the offence and the offender that its acceptance would lead reasonable and informed persons,aware of all the relevant circumstances, including the importance of promoting certainty in resolution discussions, to believe that theproper functioning of the justice system had broken down. (para. 34) [50] Anthony-Cook has set the bar even higher than it was at the time of Stupnikoff for a judge to refuse to accept a jointsubmission on sentence.

Accordingly, I consider that the remarks in Stupnikoff are even more applicable, and that a sentence which isthe subject of a joint submission is of even less weight as a precedent than when those remarks were made. [51] The Crown cited R v Miller, 2016 SKCA 32, 476 Sask R 150, in which the accused was sentenced to a total of three years forsexual assault and luring a child. The Court indicated that this was at the low end of the range.

This decision was prior to Parliamentamending the Criminal Code to institute a mandatory minimum of one year for luring, as well as being prior to Friesen. [52] Another decision cited by the Crown is R v Adams, 2019 ABCA 149, [2019] 6 WWR 55. Unfortunately, this decision is nothelpful. The offender was sentenced to 6 years, 3 months for one count of distributing child pornography, five counts of luring, twocounts of harassment, four counts of sexual interference and one count of uttering threats, involving 12 complainants of 13 to 16 years ofage. The offences are therefore very dissimilar to those before me.

Additionally, the Alberta Court of Appeal was only asked todetermine the appropriateness of the remand credit given to Mr. Adams.

It is not a decision as to the appropriateness of the sentenceitself. [53] In both R v Moolla, 2021 ONSC 3702 and R v Clement, [2021] OJ No 1829 (QL) (Ont Ct J), Ontario courts imposedsentences of 3.5 years for one count of child luring. [54] Defence has cited R v Noonan, 2023 ONSC 3351 in which the offender was sentenced to 18 months for child luring, inaddition to 18 months consecutive for distributing child pornography, and 12 months concurrent for possessing child pornography and 12months concurrent for accessing child pornography.

He pled guilty and had good prospects for rehabilitation, including havingcommenced counseling at his own expense. [55] In assessing an appropriate sentence for this offence, I am cognizant of the fact that the Supreme Court struck down themandatory minimums for this offence in Bertram Marchand. Sexual assault [56] The most recent of the Crown’s Saskatchewan cases is R v Okemaysim, 2021 SKCA 33. Mr. Okemaysim was 19 when heassaulted the 13-year old complainant when he was in a position of trust with respect to her, and when she was incapacitated by alcohol.

There are several comments which are significant for the present matter. “[T] he starting point sentence for a major sexual assault isthree years.” (para. 79) “[A]ssaults against a child should normally warrant a stronger sanction [than assaults against an adult]” (para. 80,citing L.V.). The Court also noted that this same concept had recently been adopted by the Supreme Court of Canada in Friesen. TheCourt upheld a sentence of 40 months. [57] Defence has cited R v CDC, 2021 NSSC 287. A 43-year old man was sentenced after trial to 22 months for sexual assault ona child of approximately 15 years of age.

Although it was decided after Friesen, the decision quotes (para 27) a pre-Friesen decision that“the simple call for increased sentences is not as applicable to the Nova Scotia jurisprudence, unless a particular sentencing decisionclearly reflects error . . .” If the learned trial judge is declining to find that Friesen demands higher penalties for sexual offences againstchildren, I must decline to follow that reasoning: my

interpretation of Friesen is precisely the opposite, as are the

interpretations of bothCrown and defence. If the trial judge is instead making those comments only with respect to Nova Scotia cases, then of course I defer;but in that case CDC is of very limited assistance to me.

Obtaining sexual services of a minor for consideration [58] Neither counsel have provided any separate cases with respect to this offence but are both suggesting the statutory minimumof six months. Conclusion [59] As noted above, in Friesen the Supreme Court set out a non-exhaustive list of factors to consider in determining a fit sentencefor sexual offences against children. Applying that list to the present matter:

a) Likelihood to re-offend – I have significant concerns about Mr. Mendoza’s likelihood to re-offend. His lack of empathy for hisvictim, his continued assertion that his offences arose out of a “relationship” he had with her as a result of him grooming her for a month,his minimizing his offences by his passive-voiced regret of “everything that led us to this situation”, his collection of photographs ofprepubescent and pubescent girls in scanty clothing and suggestive poses, and his claim that the bar to him re-offending would be hisconcern for its effect on his family – these all raise significant concerns about further offending behaviour;

b) Abuse of a position of trust or authority – there was no position of trust or authority here as those terms are generally understood,as the offender took elaborate pains to conceal his identity. However, I would include under this heading the offender’s groomingbehaviour. By his treatment of AB, he insinuated himself into her life and created a situation in which, in her words, she only wanted hisstories, kindness and attention. He then abused that psychological state he had created in her, to obtain his own sexual satisfaction;

c) Duration and frequency – the sexual encounter was over one extended encounter. Additionally, the accused was in the process ofarranging further abuse when he was found out;

d) Age of victim – AB was 14. Although not a young child, she was nonetheless one of a class of victims, namely adolescent girls,who are particularly vulnerable to sexual predation;

e) Degree of physical interference: here, there was unprotected penile penetration, with the consequent risk of pregnancy and disease,which the Supreme Court specifically referred to as an aggravating factor;

f) Victim participation – AB was a participant; which, as the Supreme Court noted, can be evidence of grooming, as was certainly thecase here. [60] Having considered all of the above, I have concluded that the appropriate sentences for Mr.

Mendoza, before consideringtotality, are: Information 991219064; - count 2 - possession of child pornography (s. 163.1(4)) – 1 year, concurrent to count 4; - count 4 - making child pornography (s. 163.1(2)) – 2 years, consecutive to all other sentences; - count 6 - internet luring (s. 172.1(1)(b)) – 3.5 years, consecutive to all other sentences; - count 7 - sexual assault (s. 271) – 5 years, consecutive to all other sentences; Information 991220856 - count 1 - sex with a child for consideration (s. 286.1(2)) – 1 year, consecutive to all other sentences.

Although both Crown and defencehave suggested the mandatory minimum of 6 months for this offence, the aggravating factors of paying to “take” AB’s virginity and tobe allowed to video it indicate to me that a minimum sentence is not appropriate, notwithstanding the overlap of the latter factor with theconviction for making child pornography. [61] The principle of totality, enunciated in s. 718.2(

c) as noted above, was referred to by the Supreme Court of Canada in R vC.A.M., (SCC), [1996] 1 SCR 500 as follows (para 42): The totality principle, in short, requires a sentencing judge who orders an offender to serve consecutive sentences for multiple offences toensure that the cumulative sentence rendered does not exceed the overall culpability of the offender. As D. A.

Thomas describes theprinciple in Principles of Sentencing (2nd ed. 1979), at p. 56: The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation tothe offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutivesentences, to review the aggregate sentence and consider whether the aggregate sentence is "just and appropriate".

Clayton Ruby articulates the principle in the following terms in his treatise, Sentencing, supra, at pp. 44-45: The purpose is to ensure that a series of sentences, each properly imposed in relation to the offence to which it relates, is in aggregate"just and appropriate".

A cumulative sentence may offend the totality principle if the aggregate sentence is substantially above thenormal level of a sentence for the most serious of the individual offences involved, or if its effect is to impose on the offender "a crushingsentence" not in keeping with his record and prospects. [62] I must therefore consider the total of 12.5 years and consider whether or not it “exceeds the overall culpability of theoffender”, whether it is “just and appropriate”, and whether it would “impose on the offender a ‘crushing sentence’ not in keeping with

his record and prospects”. I must also bear in mind that the Supreme Court in Friesen instructed (at para. 114 , quoted more fully above) that “upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances”. [ 63 ] The Crown, citing totality, urges me to sentence Mr. Mendoza to a total of 9 years. I am not bound by either Crown or defence’s submissions ( R v Nahanee , 2022 SCC 37 , 418 CCC (3d) 417), and consider that a reduction of 3.5 years is generous to Mr. Mendoza; however, it is not untoward, and accordingly I sentence him accordingly.

Had the Crown urged a higher sentence, I might have been inclined to accept it. Mr.

Mendoza is therefore sentenced as follows: Information 991219064 ; - count 2 - possession of child pornography (s. 163.1(4)) – 1 year, concurrent to count 4; - count 4 - making child pornography (s. 163.1(2)) – 1.5 years, consecutive to all other sentences; - count 6 - internet luring (s. 172.1(1)(b)) – 2 years, consecutive to all other sentences; - count 7 - sexual assault (s. 271) – 5 years, consecutive to all other sentences; Information 991220856 : - count 1 - sex with a child for consideration (s. 286.1(2)) – .5 years, consecutive to all other sentences. [ 64 ] Mr.

Mendoza has, as noted above, a total of 480 days of remand credit.

This will be applied to count 7, the sexual assault. [ 65 ] For the purposes of sentence calculation, it is my intention that sentence be considered as follows: Information 991219064 ; - count 2 - possession of child pornography (s. 163.1(4)) – 365 days, concurrent to count 4; - count 4 - making child pornography (s. 163.1(2)) – 549 days, consecutive to all other sentences; - count 6 - internet luring (s. 172.1(1)(b)) – 731 days, consecutive to all other sentences; - count 7 - sexual assault (s. 271) – 1,737 days less 480 days remand credit, leaving 1,257 days to serve, consecutive to all other sentences; Information 991220856 : - count 1 - sex with a child for consideration (s. 286.1(2)) – 182 days, consecutive to all other sentences. [ 66 ] The total number of days to be served from today onward is therefore 2,719. [ 67 ] For clarity, where there are references in the above paragraphs to sentences being “consecutive to all other sentences”, these do not change the concurrent nature of the sentence imposed regarding possession of child pornography. [ 68 ] I order DNA be taken from Mr.

Mendoza in accordance with s. 487.051. [ 69 ] I order that Mr.

Mendoza comply with the Sex Offender Information Registration Act , SC 2004, c 10 for 20 years, pursuant to s. 490.012. [ 70 ] I order forfeiture of the following items: - Canon E05 bag and contents, including camera - Vital tripod in box - Dynes tripod - Capital One credit card ending in 1778 - Zed Optics case and contents - Acer laptop and cord - cellphone - Qimic tripod/phone holder - Movo tripod/phone holder [ 71 ] With respect to the Crown’s request for a s. 161(1) order, and defence’s position opposing the same, I have concluded that the offender’s risk to re-offend is such that the protection of a s. 161(1) order is appropriate.

I do not accept the need for all of the provisions the Crown seeks, or a 20-year duration, however. For example, I note that a 2 kilometre exclusion zone around AB’s place of residence, depending on where she lives from time to time, would exclude Mr. Mendoza from even travelling through a significant

proportion of Saskatoon; add to it a similar exclusion zone around her workplace or place of education, and the problem increases. I also note that the situation with respect to AB did not arise from him physically forcing himself into any of those locations: that is, this condition would not have prevented any of the behaviour for which I am sentencing him. [ 72 ] I am adding an exception to communications by computer system to allow Mr.

Mendoza to communicate with family members. [ 73 ] Furthermore, while it is appropriate that he have a no-contact order with respect to AB, and a condition that he not go to her place of residence, education or employment, I see no reason why that should be required after she is significantly into adulthood. Should Mr.

Mendoza then attempt unwanted contact, the law has other mechanisms to deal with that situation. [ 74 ] With respect to internet usage, the Crown’s wording appears to strike a reasonable balance between allowing internet use, which is nearly unavoidable for most members of society, and ensuring that his offending behaviour is not repeated.

Although I think that “search on demand” clauses generally are problematic, there are obvious difficulties in enforcing orders regarding use of computers without such a clause, and the Crown’s proposal in the present matter strikes an appropriate compromise in the circumstances. [ 75 ] There will accordingly be an order pursuant to s. 161(1) for a period of 10 years prohibiting the offender 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, school yard, playground or community centre, provided however that he may do any of these in the physical presence of a sober responsible adult who is aware of Mr. Mendoza’s convictions; (

b) having any contact, of any kind, in any way, with AB or being at her place of residence, education or employment for five years after his release from imprisonment, including release on parole, mandatory supervision or statutory release; (

c) 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 a person under the age of 16 years; (

d) using a computer system within the meaning of s. 342.1(2) for the purpose of communicating with a person under the age of 16 years other than family members; (

e) using the Internet or other digital network to directly or indirectly access any social media sites, social network, internet discussion forum or chat room, or maintain a personal profile on any such service (including but not limited to Kik, Facebook, Twitter, Tinder, Instagram, or any equivalent or similar service). He is to consent to a forensic search and examination by any peace officer of any device capable of accessing the internet or other digital network, or computer system within the meaning of

section 342.1, that is found in his possession or under his control, up to a maximum of two times per calendar month and he shall provide the correct passcode, including biometrics passcodes, to any peace officer, to any device capable of accessing the internet or other digital network or to a computer system within the meaning of s. 342.1 that may be found in his possession or control, to a maximum of two times per calendar month. [ 76 ] Pursuant to s. 737, Mr. Mendoza is ordered to pay a $200.00 surcharge with respect to each offence, for a total of $1,000.00.

Provincial regulations were recently changed to allow courts in appropriate circumstances to grant more than 30 days past release from custody for offenders to pay surcharges or enroll in the fine option program. In the circumstances of this case, I order that the surcharge by paid on or before December 31, 2031.