r v. MITCHEL SENDEL, 2023 QCCQ 6210

R. c. Sendel 2023 QCCQ 6210 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL “Criminal and Penal Division” No: 500-01-195505-190 DATE: September 21, 2023 ______________________________________________________________________ BY THE HONOURABLE SALVATORE MASCIA, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecutor v. MITCHEL SENDEL Accused ______________________________________________________________________ JUDGMENT ON SENTENCING ______________________________________________________________________ I. Introduction A.

The charges [ 1 ] This case presents yet another example of how the misuse of online technologies can put children’s safety and wellbeing at risk. In a nutshell, the accused, Mr. Mitchel Sendel, used online media to coerce two adolescent girls into sending him sexually explicit pictures of themselves. [ 2 ] In essence, this is a case of «sextortion» - a newly minted word in which an individual threatens to post nude photos or videos of the victim(

s) on social media platforms unless he/she/they continue to send him more photos. As in the present matter, the victim(

s) comply in order to avoid embarrassment and humiliation. Of course, the hope is that the extortionist will be satisfied and put an end to his demands. But not unlike the present case, the extortionist is never satisfied and keeps on threatening to distribute the lewd images to friends, family, or the public at large unless more explicit images of the victims are sent to him. [ 3 ] The exploitation of the girls only came to an end when the authorities were able to track down the accused by linking his online identity ([...]) to an IP address controlled by him.

He was promptly arrested at his home on September 18, 2019, and arraigned the day later on a multiple count information regarding the sexual exploitation of minors. On February 11, 2022, the accused entered a guilty plea to two counts of luring a child (s.172.1(1) a)

(2) a) Cr. C., one count of production of child pornography (s. 163.1(2) Cr. C., and one count of possession of child pornography (s. 163.1(4)

a) Cr. C.). B. The slow pace of justice and the accused’s attempt to backtrack on his guilty plea [ 4 ] Representations on sentencing were delayed for various reasons: Firstly, a delay was needed for the drafting of a presentence report and a psycho-sexual report. Secondly, at the date set for oral arguments (September 13, 2022), the accused dismissed his attorney. Thirdly, at a pro forma hearing, his new attorney (the attorney of record in the present matter) asked for a postponement in order to (

i) examine the possibility of the accused withdrawing his guilty plea and (ii) consider the possibility of the accused availing himself of a defence of «automatism». [ 5 ] I reluctantly agreed to the postponement while expressing my view that the circumstances of this case made the defence of «automatism» highly unlikely (not to say improbable). Based on the agreed statement of facts filed by the parties, I pointed out that the accused’s actions could only be qualified as fully volitional.

He was the one who trolled the internet in order to lure a first victim and then a second victim into sending him naked pictures of themselves. He even threatened to publish the pictures on social media if the girls didn’t supply him with more pictures.

He was especially oblivious to the pleas of the first victim who felt trapped and thought her only escape from the increasing demands of the accused was to commit suicide. [ 6 ] On December 13, 2022, at a proforma hearing, counsel for the accused wisely announced that she will not be presenting a motion requesting the withdrawal of her client’s guilty plea – admitting, thereby, that the facts of the case were not favourable to a

defence of automatism. She added that the accused fully accepts his responsibility for the crimes to which he had pleaded guilty. [ 7 ] Because of scheduling difficulties, the matter was then remanded for representations on sentencing to May 23, 2023. II. Respective position of the parties [ 8 ] Both Crown and defence counsels agree that the gravity of the offences warrants a prison sentence.

The parties, however, are at odds over how much time the accused should get for manipulating two young girls into sending him sexually explicit photos of themselves and for the possession and production of child pornography. [ 9 ] For the Crown, the seriousness of the offending along with the need for deterrence and denunciation requires a salutary sentence of 54 to 60 months of imprisonment.

Among the aggravating factors justifying such a sentence, Crown counsel noted the following: The objective seriousness of the offences committed; In this regard, Crown counsel noted that the offences of luring and production of child pornography carries a minimum sentence of one year and maximum term of 14 years. As for the offence of possession of child pornography, it attracts a maximum prison term of 10 years.

The young age of the victims; The coercion the accused exerted on his young victims; The nature of the acts the accused asked his young victims to perform on camera for his sexual gratification; The consequences incurred by the victims; One of the victims begged the accused to stop with his demands, lest she kill herself. • Despite the guilty plea, the accused minimizes the consequences of his actions for the victims; • Despite having undergone therapy, the accused minimizes the root cause of his problem – his attraction for adolescent girls. [ 10 ] The Crown recommended the following breakdown: 18 months on the count of luring X (the first victim); 12 to 15 months consecutive on the count of luring Y (the second victim); 12 months for the count of production of child pornography to be served consecutively to the luring counts; and an additional 12 months to be served concurrently on the count of possession of child pornography. [ 11 ] Counsel for the defence, on the other hand, maintains that a prison term of two years less one day (followed by a period of probation) reflects the overall criminality of the accused.

While general deterrence, denunciation and separating offenders from the community are the primary principles of sentencing in matters involving the sexual exploitation of children, they are not the only ones to consider. [ 12 ] In support of this position on sentencing, defence counsel highlighted the following factors: The accused pled guilty to the offences and has expressed remorse for his actions; The infractions occurred in a time where the accused was abusing alcohol and drugs; The infractions occurred while the accused was struggling with mental health issues; The accused has sought and obtained help for issues relating to alcohol and drug abuse; The accused has sought and obtained counseling with a sex therapist; The infractions occurred over a relatively short period of time; The infractions (in part) arise out of the same transaction; Here, defence counsel argued that the production of child pornography was connected to the infraction of luring.

As the offence of production was part and parcel of the luring offence, the sentences for the said offences should run concurrently. Counsel added that a concurrent sentence was needed in order to avoid the imposition of a crushing global sentence and to respect the principle of proportionality. Minimum sentence for the offence of luring a child at 172.1 Cr.C . was declared unconstitutional. While defence counsel did not debate the intrinsic gravity of the accused’s wrongdoing, she noted that the mandatory minimum sentence mandated by the Cr. C. was declared unconstitutional by our Court of Appeal [1] .

In doing so, counsel pursued two objectives: firstly, to attenuate the objective gravity of the offence; secondly, to impress upon me that the objective of denunciation and deterrence does not remove a judge’s discretion to individualize the sentence having regard to all the circumstances of the offence, as well as the particular characteristics of the accused [2] . The denunciatory and deterrent effects of a probation and/or mandatory ancillary Court orders Defence counsel’s position of a prison term of two years less one day also included a probation period of three years which will include (

i) limitations on his activities so as to limit the possibility of reoffending; and (ii) obligations to seek and follow treatment in order to assist and see him through in his rehabilitation.

Also, whatever sentence I pronounce, it must include the ancillary orders at s. 161 and s. 490.012 of the Cr. C. Pursuant to s. 490.012, more particularly, the accused will be subject to a mandatory lifetime registration in the national sex offender registry created by the Sex Offender Information Registration Act (SOIRA). For defence counsel, the stigma attached with the said registration – along with a sentence of two years less a day – will serve the objectives of denunciation and deterrence in the present matter.

The accused has abided by the strict conditions of his release on bail; Since the date of his arrest in September 2019, there is no allegation that the accused has re-offended or breached any of the terms of his strict release conditions. [ 13 ] The breakdown of the sentence proposed by defence counsel is as follows: 15 months on the first count of luring; 9 months consecutive on the second count of luring (the lighter sentence for the latter count is explained by the fact that the contact between the offender and the victim was significantly shorter than that involving the first victim); on the counts of production of child pornography and possession of child pornography, 12 months concurrent between them and concurrent to the other sentences.

III. Evidence on sentencing A. Agreed statement of facts [ 14 ] At the date of the accused’s guilty plea, the parties filed into the court record an agreed statement of facts. With a few modifications from the undersigned, the said statement reads as follows: 1 . On April 11, 2019, police officers from the city of Alliance, Ohio, were called to Alliance Middle School to meet with X, a 12- year-old girl. 2 . The accused, identified as «[...]” communicated through the applications Omegle, Facebook and Instagram with X. 3 . In the course of the conversations, she mentioned her age.

The accused obtained a video of the victim in which she was naked. 4 . He threatened her to use the above-mentioned video so she would send other photos and videos of the same kind. She mentioned that she wanted to die and begged him to stop, he continued threatening her and asking her to send more photos. 5 . In the conversation, the accused kept on asking for other photos of her naked, otherwise he would post the photos on social media and pornographic websites, send them to her friends or send them to her Instagram followers. Multiple times, he used ultimatums as to when he would post the photos. 6 .

The photo used to threaten X clearly showed her face and bare breasts. 7 . The accused also communicated with X’s friend, Y, an 11-year-old girl. 8 . The accused asked Y to send him videos of her naked so he would not publish X’s video. 9 . Sergeant detective Johnson identified the account Instagram “[...]” and obtained the information linked to the account. They obtained the IP address and the dates on which the accused was connected through this IP address. 10 .

On May 14, 2019, the information was transmitted to the RCMP and the National child Exploitation Crime Centre because the IP address was located in Canada. 11 . After obtaining the requisite court order, the authorities tracked the IP address to the apartment of the accused (in the city of St. Léonard, Quebec). 12 . On May 27, 2019, the police obtained a search warrant for the accused’s apartment. 13 . The warrant was executed on September 18, 2019, at the said premises. The accused was present and promptly arrested on charges of luring, possession of juvenile pornography and extortion. 14 .

The list of items seized included: a. 2 Samsung cellphones b. 3 IPhones c. 1 iPad d. 1 external hard drive Western digital e. 1 Lenovo computer. 15 . On the Samsung galaxy S8 cellphone, police officers found more than 2 000 photos, Thumbnails on which we can see a computer screen. a. Photos were taken from Omegle chat site. We can see various young girls aged between 10 and 18 years-old naked, masturbating themselves with their hands or with an object. 16 . In the computer’s cache memory, police officers found many searches on Omegle and Porn Hub using the keywords: «teen» and «young girls» 17 .

A total of 319 files of juvenile pornography was found in the accused’s items. Almost all of them are photos of young girls ranging in ages between 10 to 15 years old. A number of those photos show young girls masturbating. a. From these photos, 66 were taken from the video of X. The photos show her masturbating herself with her hand and/or with an object. b. Multiple video files were found in which we see the accused using the Omegle platform live chat to communicate with girls ranging in ages from 10 to 18 years-old.

i. In one video, for example, officers can hear the sound of the keypad while the girl reads the directions on the screen in order to act out what the accused is asking her to do: take off her shirt, touch her breasts. 18 . The photo used on his Omegle profile was found. It comes from the Muppet Show and was created the day before his first conversation with X. 19 . The accused was met by police officers and admitted that he was living alone at his apartment in St. Leonard at the time the infractions were committed. B.

The Presentence Report [ 15 ] The probation officer, Mathieu Faucher, prepared a presentence report (PSR) dated May 6, 2022 (more than two- and one-half years after his arraignment).

The report contains the following biographical information regarding the offender: • He is a 32-year-old single man (33 years old at the date of sentencing) with a long history of drug and alcohol abuse ; For the past six to seven years, he has been working as an independent coiffeur in a salon located in the east end of Montreal; His criminal record includes two convictions: one for driving while under the influence and another for mischief; Though his financial situation is relatively unstable, he benefits from the continued support of his parents (if needed).

Sustained efforts to remain sober since 2021; In the spring of 2021, he completed a 28-day closed therapy to address his issues with drug and alcohol consumption. He maintains his sobriety by attending Alcoholics Anonymous (A.

A) and Cocaine Anonymous (C.A.) meetings. [ 16 ] The PSR details a difficult childhood : He began consuming drugs and alcohol when he was only 11 years old; He had problems in school; The offender did not do well academically (perhaps on account of his consumption of drugs). He was also expelled from school for misconduct. He had a strained relationship with his parents With respect to his family circumstances, the PSR recounts that the offender had a conflictual relationship with his family. At the age of 13, he left the family home and only renewed contact with his family and his siblings at age 19.

He suffered with mental health issues, including bouts of depression and anxiety (the accused even attempted to commit suicide on two separate occasions). He was the victim of childhood bullying. [ 17 ] With respect to the criminological factors underpinning the offender’s behaviour and the prospects of rehabilitation, the drafter of the report noted the following: He acknowledges responsibility for his actions More particularly, in the PSR we read that the offender « acknowledges the charges brought against him and makes no attempt to refute them.

He affirms that he met the victim on the Omegle app (…) in order to obtain her Instagram account. He admits that he disregarded the victim's age and used manipulation in order to obtain more and more nude photos and videos of her [3] . » Limited empathy for his victim(

s) Despite the necessary acknowledgment of having committed a serious sexual offense, the offender lacks insight into the consequences of his actions for the victims. As explained in the PSR: Although he understands the inadequacy of his actions, his ability to empathize with the victim is limited. In fact, he feels that she is exaggerating the consequences of his actions when she states that she wanted to die at a certain time [4] . His personality is centered on the satisfaction of immediate needs.

On this point, we read in the PSR that the accused « does not hesitate to use manipulation and psychological violence to attain his ends. The recurrence of abusive interpersonal relationships and a lack of empathy are observed [5] . » Difficulty with self-control On this matter, the drafter of the report writes that the offender has a « marked difficulty with self-control in each sphere of life, adopts marginal values, and has precarious mental health [6] .» • The accused’s sexuality is tied to his consumption of intoxicants. On this subject, we read in the PSR that « there is a clear link between Mr.

Sendel's sexuality and his use of psychotropic substances while his libido is increased in a state of intoxication [7] . Sustained efforts to remain sober

One will recall that one of the mitigating factors on sentencing mentioned by defence counsel was the fact that the accused has taken the necessary steps to address his problems with alcohol and drug consumption. The offender’s efforts to remain sober were corroborated by the probation officer. More particularly, he wrote that in the spring 2021 the offender completed a 28-day closed therapy center (Renaissance) to help him recover from drug and alcohol abuse and (hopefully) to guide him on the road to sobriety.

He maintains his abstinence by attending A.A and C.A meetings [8] . [ 18 ] With respect to the offender’s risk of reoffending, the probation officer adopted the position of the sexologist: it was pegged at «above average» [9] . The probation officer also shared the sexologist’s opinion that – given the risk of recidivism - the offender could benefit from a treatment program for sexual delinquency. In the same vein, the offender would do well to seek treatment for other mental health issues. C.

The Psycho-sexual Evaluation [ 19 ] A comprehensive 16-page psycho-sexual evaluation of the offender, dated May 5, 2022, drafted by sexologist and psychotherapist Steve Titley was filed as evidence. For the most part, the sexologist’s evaluation was predicated upon (

i) a three-hour interview with the offender; and (ii) a series of psychological tests and self-assessment questionnaires completed by the offender. What follows is a

summary in point form of the expert’s main observations and conclusions drawn from the afore-mentioned sources: • The offender is a heterosexual hebephile – that is, someone with a sexual interest in pubescent females. The sexologist noted, for instance, that searches for internet porn by the accused included key words, categories or sites such as «young teen», «new pornstars» and «Bangbros». • The attraction for pubescent girls, however, is not exclusive. In the past, the offender has had relationships with age-appropriate females.

Also, the offender reported that he didn’t pay much attention to the age of the girls when on the Omegle site. If he found them attractive, he would simply click their photos. • Difficulty in admitting that he has a sexual attraction for pubescent girls While acknowledging his wrongdoings, the offender minimizes his responsibility by (

i) downplaying his attraction for young girls (ii) blaming his actions on the consumption of alcohol and (iii) the fact that he was grappling with intense sexual urges. • The offender had no compassion or consideration for his young victims, treating them as nothing more than sexual objects to be used and abused. All he was interested was his own sexual gratification. On this subject, more particularly, the sexologist notes the following: […] He sought out girls on the Internet (Omegle) to use them for masturbation and sexual gratification.

He acknowledged that he had no compassion or consideration for these girls (victims and others). His goal was centered on his personal needs, and he used manipulation and threats to achieve his ends. These girls were perceived as mere sexual objects, in a utilitarian mode, i.e., for sexual gratification [10] . In a subsequent passage, the sexologist offsets the offender’s admission of guilt with his want of consideration or compassion for his victims: He claims to be more aware of the potential consequences for the two girls (victims in the file). He admits to having manipulated and threatened them.

However, his level of emotionality is mitigated, as he remains cognitively and emotionally deficient. At the time, it is clear that he showed no compassion or consideration for them . He perceived them as mere sexual objects, for his own sexual gratification. «I was ready to say or do whatever to get what I wanted. All I was thinking was my own benefit, my sexual needs. I just wanted “to get off” » [11] .

The results of the psychological tests indicate that the offender has an above average risk of reoffending The offender expresses a motivation for therapy in order to manage his sexual urges The accused claimed that he was motivated to enter a specialized sex offender program in order to learn how to better manage his sexual urges. Recommendations At the end of his report, the sexologist writes that the offender «appears to have significant sexual concerns that merit special attention in a specialized sex offender program [12] .»

To mitigate or manage the risk of reoffending, he made the following recommendations: 1. the offender must not come into contact by any means (social networks or other) or be in the presence of the victims. 2. The offender must not be alone in the presence of minors (under 16). 3. The offender must not use the internet for sexual purposes by any means whatsoever, as long as he has not successfully completed a specialized sex offender treatment program and legal conditions permit it. 4. He must maintain his sobriety.

He must continue to attend A.A. and N.A. meetings in order to reduce the risk of a relapse. [ 20 ] The accused claims to be motivated to enter a specialized sex offender program to learn how to better manage his sexual urges, but according to the sexologist, the risk of recidivism is above average.

D. Psychosexual treatment

summary report [ 21 ] Defence counsel filed in evidence a two-page psychosexual treatment report by Dr. Marc Ravart, a psychologist and sexologist.

In point form, the report apprises the reader of the following : • The offender has been under the therapeutic care of the psychologist since June 2022. • The offender has maintained a collaborative attitude in the exploration of his problem behaviour and history. • The offender acknowledges the reproached behaviour and that he needs help. • The offender has a history of longstanding mental health problems (attention-deficit with hyperactivity and impulsivity; anger management; pathological personality traits; alcohol and substance abuse; relational deficits; unlawful sexual behaviours) • The nature of his psychological problems suggest he would benefit from medium to long-term psychotherapeutic care. [ 22 ] Interestingly, the report includes a short paragraph in which the psychologist states that the use and abuse of alcohol and drugs, notably cocaine and speed, contributed to the offender’s unlawful sexual behaviour and aggravated his mental health problems.

The psychologist then adds that the offender has been free of alcohol and intoxicating substances since May 2021, following the completion of a 28-day, in-patient treatment program in Ontario; and he maintains his sobriety by regularly attending A.A. and C.A. meetings. E. Testimony of the offender [ 23 ] The gist of the offender’s testimony was to mitigate the negative aspects of the PSR and Psycho-Sexual Report – in particular, the sections dealing with his want of empathy for his victims. To this effect, he expressed contrition for his behaviour and regret for the harm suffered by his victims.

Relevantly, he had written a letter of apology to the victims which he read out loud in the courtroom. The first two sentences of the letter read as follows: I, Mitchell Sendel, would like to formally apologize for my actions leading up to the incident that took place. Words cannot express how sorry I am for my actions and any trauma caused to the victims. I can only hope they are able to move forward with, and have joyful, prosperous lives. [ 24 ] In another

section of the letter, he expresses disgust with his unlawful behaviour: What was done is inexcusable and makes me sick thinking that this actually happened. I wish I could go back and have gotten sober sooner, so this would have never happened, and simply have been a terrible dream. [ 25 ] Likewise, his testimony in court conveys loathing for the person he was at the time of the commission of the wrongful acts: When I think back to these instances, it disgusts me. I never thought that I could be that person. [ 26 ] The offender recognizes that he needs treatment and appears to be motivated.

On his own initiative, he began attending counselling with a psychologist and sexologist. He continues his sessions and is motivated to make improvements in his lifestyle . [ 27 ] From his meetings with the sexologist, he sought to get a better understanding of the issues plaguing his mental health. There were suggestions that he may be suffering from OCD or that he was on the autism spectrum. He even mused that his problems may be related to a series of concussions he incurred as a youth.

On the recommendation of the sexologist, he consulted with a psychiatrist who, in turn, referred him to a specialist capable of testing and diagnosing autism. He is now on a waiting list to consult with a neuro psychologist. [ 28 ] In the same vein, he has made serious efforts to address the problems in his lifestyle which he feels contributed to his unlawful actions – the consumption of drugs and alcohol. To this effect, he entered an in-patient 28-day sobriety clinic.

To maintain his sobriety, he regularly attends A.A. and C.A. meetings. [ 29 ] Despite the rehabilitative counselling, the offender’s allocution skirted over the offender’s real problem – his sexual attraction to pubescent girls. In this respect, there is little change with the observations made by the authors of the PSR and the Psycho-Sexual Report – that is, he downplays his sexual interest in young girls.

The great deal of child pornography found in his computer, alone, would put to a lie his denial of sexual attraction for young girls. [ 30 ] While admitting responsibility, he engages in rationalization when it comes to explaining his unlawful acts – he was either intoxicated or afflicted with a cohort of psychological problems. He even suggested that he was acting as an automaton (or that he was barely conscious) of his actions, as evidenced in the following exchange with his attorney: Q What do you have to say about the infraction that you committed and that you pled guilty to? A.

Looking back on it now, its like I was just in a total blackout for years and when I look back on it, it makes me sick to my stomach that I was even capable of doing something like this … (…) When I look back and think on this, I don’t even know how I did this.

[ 31 ] The offender’s claim of being barely conscious of his actions, however, does not hold muster. On this issue, the evidence leaves no doubt that the actions of the offender were the product of a calculating and conscious mind. More particularly, the manner in which he manipulated his victims attests to a certain level of planning, deliberation and insight into his actions. All his demands were detailed and calculated. He even bothered to save the images of his victims.

In short, I have no doubt that he understood exactly what he was doing and the seriousness of the offending. [ 32 ] In cross-examination, he had all the difficulty in the world in admitting his sexual attraction for pubescent girls; preferring, instead, to lay the blame for his unlawful acts on the abuse of intoxicating substances or, perhaps, on some underlying psychological issues. [ 33 ] Pressed in cross-examination to identify his core problem (other than alcohol and drugs), he became evasive in his responses and stubbornly refused to admit the obvious - his devious attraction to young girls.

In this regard, the following exchange between Crown counsel and the offender is instructive: Q. How would you describe the problem? Do you seem to realize there was a problem other than just alcohol and drugs ? A. Alcohol and drugs are what led to everything, because I already have impulse control issues and the alcohol and everything that … and poor decision making. I don’t, I can’t see myself now coming anywhere close to doing anything this vile.

I was not in the right state of mind when this incident took place Q. you said you are sober and you underwent a therapy for your addiction and now you seem to say that with Mr. Ravart (inaudible) throughout your therapy you realized there was another problem, what was the other problem ? A. He never worded it per say as a problem. He said, «there are things you have to work upon in your life. » … He was asking me very personal questions and how often I masturbate and stuff like that. And from what he told me, he couldn’t give me a straight answer. He said further therapy would be needed.

The conclusion he wrote in the letter … they all state that I need more assistance and I don’t know …If you ask me what’s wrong with me, I can’t tell you straight off what exactly what all my problems are because I truthfully don’t know what all my problems are, so that in the future I can be a better person and not make any mistakes.

Or, if I fall into anything even closer to involving these types of incidences, at least I will have better preparation on how to prevent or to deter myself from any thoughts, if I have them. [ 34 ] At times, he made it seem that it was only by happenstance that he showed any attraction for young teens – comparing his actions to that of a man who would simply glance or take a second look at a pretty girl that crosses his path: Q. In the course of the meetings with Mr.

Titley did you admit that you had or you were attracted to teens and young teens, cause that’s what the sentence (in the Psycho-Sexual Report) says? A. I never admitted … there were never any questions like that. The question he asked was «if you see a young girl walking by and she is wearing a crop top or a really short skirt with her butt hanging out are you going to look? » And I said, «I’m going to look. » Am I going to act on it? No. …And he said, «ok», and he asked more questions on that. There were questions where it said, «Do you feel that some girls in high school dress to try to attract attention? »

And I said, « I don’t believe that’s why, but yes when I was in high school there were girls who did that. » [ 35 ] Befuddled by his answers (or, rather, frustrated by the offender’s want of a direct answer), I returned to the matter of whether or not he was sexually attracted to young girls. But as was the case in cross-examination, the offender skirted around the issue – the attraction, if any, was incidental – that is, he was not unlikely to avert his gaze at a pretty female or one that was dressed provocatively. Age was not the issue. If she happened to be underage, it was purely accidental.

Always in an effort to minimize his sexual preference for teen and/or pre-teen girls, he took care to mention having dated women older than himself or, if younger, were age appropriate. [ 36 ] He claimed that the same explanations (regarding sexual preferences) were given to the drafter of the Psycho-Sexual Report (Mr. Titley). He surmises that they were misunderstood or misinterpreted by Mr. Titley and resulted in the latter concluding (wrongly) that he (the offender) was sexually attracted to pubescent girls.

In the following exchange I had with the offender, it is obvious that he goes to lengths to minimize his core problem – a deviant sexual attraction for pubescent girls: Q. You tried to explain it the first time, (the attraction) it’s a glance or a double take when somebody attractive passes by. But the use of the word «prefer» (in the psycho-sexual report) …. (we are) not talking about a double-take or somebody you might notice because they are dressed provocatively. The word (in the report) is «prefer». Do you think (Mr. Titley) got that wrong? A. I think he did. I would never say I prefer one woman to another.

With me it doesn’t matter, race, ethnicity, or anything like that. I don’t use the words «I prefer. » I never say «prefer»; and I dated women who were 15 years senior to me and women who were six years younger than myself, again at the time I was 25 she was 19. I date older or younger, so I never use the word «prefer» because I don’t have a preference towards women… Generally, I like women of all shapes and sizes. Q. Is there an attraction for teens or young teens? Would you have led him on that there was an attraction for teens and young teens? A. I may have.

You see an attractive woman when driving and you may look and it may be a high school student and at the last moment you realize it’s a high school student. I was talking about situations like that to him [….]

Yes I looked at younger girls, but not really knowing when you see a woman from the back you can’t really tell, but then you see the face and you say, «no». Q. But the question is simple: Is there an attraction for young teens? A. Like it says, I wouldn’t say an attraction. There have been glances, but unintentional. At the salon, it’s mostly women and generally you are not going to see me ogling. I never dated any of the women at work.

I never dated the women at work and there were plenty of opportunities; but when it comes to work, it’s work. [ 37 ] At best, the offender can only bring himself to admit that he has a problem with pornography in general and continues to rationalize any suggestion that he may have an interest for young teens: Q. I’m going to get straight to the point. Do you have a problem with an attraction to young teens? A. I would say on the glancing thing. I would say there may be something underlying this. If I had to say off the top of my head, I would say «no». Q.

So, you gave «no» as an answer … Why (then) are you seeing the sexologist? A. I’m seeing the sexologist. I believe I may have a problem with pornography, with sex and my libido; and I believe that the alcohol and the drugs is what led to the severity of this. I wasn’t concerning myself so much with asking the person’s age. If they had breasts, if they had a butt, I would basically say, «OK». I don’t believe I have a problem. Q. So you have a problem with pornography? A. I have a problem with sexuality, but I don’t t know what that problem is. Q. What do you mean you don’t know what the problem is?

You pled guilty to serious accusations? A. I mean I don’t know the exact limits. There could be a broader list of things I could have issues with. I’m exploring those issues with the therapy right now to try to pinpoint what the issues are. If my issues are with teenage girls or if my issues are a broader thing where it is more sexualization and stuff like that. Q. What do you mean? A. If my issue is more with the fact that I’m a sex addict. If I had issues with alcohol and drugs that pushed me to stuff like this… I don’t know what’s wrong Q. You don’t know? A. I know I have problems. Q. What are the problems? A.

My problems from the get-go are drugs and alcohol and sex. And the big factors were the drugs and alcohol which I think led to my over sexualization, which is what I’m trying to get under control now and trying to understand further; because before this incident happened, if you asked if I had a sex problem or something I would have told you «No». But now I know that it isn’t the case. I can’t tell you exactly because I don’t know. I’m so new to this and that’s why I’m continuing the therapy to find out more about myself, my problems and how to deal with the matter, so I never sit in front of your honour again.

Q. Assuming the problem is alcohol, drugs, sex, personality disorder, you name it, or an addiction to pornography, the person you communicated with, who you tried to extort was 12 years old. Did you do something similar with older women? A. No, your honour. Q. And it wasn’t a one-time thing? A. No, your honour. [ 38 ] No doubt surprised by the tenor of the offender’s testimony (disclaiming any sexual preference for young teens), Crown counsel announced that she may have to call Mr. Titley to give evidence in rebuttal.

As she explained, there was no reason for her to expect that the offender would contest any of the conclusions in the Psycho-Sexual Report. [ 39 ] But as often happens in criminal cases, potentially contentious and time-consuming issues are resolved when reasonable and conscientious attorneys talk to each other during a courtroom break. Following an adjournment, Crown counsel stated that she does not

need to call Mr. Titley as a witness. The parties, she explained, will file an admission holding that if called to the stand, Mr. Titley would testify to the same effect as his report. [ 40 ] Defence counsel, for her part, added that she spoke with the offender during the break and that he now admits his sexual attraction for young teens. If he failed to promptly acknowledge his problem, it’s an account of the fact that there was a journalist in the courtroom and he was afraid of the fallout the media coverage would have for his employer, Ms.

C.M., the owner of a hair salon located in the east end of the city. [ 41 ] With respect to his occupation or employment, the offender explained that he has been working as a coiffeur at a salon in the east end of the city from 2017 to 2022. He explained that the real prospect of a jail sentence prompted him to leave his job and return to his hometown of Cornwall, Ontario, where he lives with his parents.

More particularly, it didn’t make financial sense for him to lease an apartment in Montreal for one year only to be sent to prison a few weeks after signing a lease. [ 42 ] He stated, however, that he intends to go back to work at the same East end salon once he has done his time. He described himself as an excellent coiffeur with a host of loyal clients pining to see him back at the salon. And despite all his legal difficulties, his employer (Ms. C.M), will gladly welcome him back in the fold. F.

Testimony of C.M. (The offender’s employer) [ 43 ] Essentially, her testimony focussed on the offender’s qualities at work. She described him as a loyal employee who was appreciated by both his colleagues and his clients. She would not hesitate to take him back once his sentence is served. IV. The law A. The General Principles of Sentencing [ 44 ]

Section 718 of the Criminal Code and onward sets out the principles that guide a court in fashioning a fit sentence. The

section reads as follows: 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 . [ 45 ]

Section 718.1 sets out the principle of proportionality in sentencing: A fit sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. A proportionate sentence, at its core, is an individualized sentence [13] . In R. v. Ipeelee , 2012 SCC 13 , Justice LeBel observed (at para. 75) that the fundamental duty of a sentencing judge is to “engage in an individualized assessment of all of the relevant factors and circumstances, including the status and life experiences of the person standing before them. [14] ”. [ 46 ]

Section 718.2 of the Cr.C . enumerates a number of other sentencing principles, including a consideration of aggravating and mitigating circumstances as well as the principle of parity. [ 47 ]

Section 718.2(

c) provides that that «where consecutive sentences are imposed, the combined duration of consecutive sentences not be unduly long». In effect, the

section subsumed what had been the judicial principle of totality. B. Specific sentencing principles for the abuse of minors.

Section 718.01 Cr. C. [ 48 ]

Section 718.01 of the Cr.C . specifically requires that a court prioritize « the objectives of deterrence and denunciation» in cases involving «the abuse of a person under the age of 18. ». This objective specifically speaks to the fact that children are particularly vulnerable and must be protected from adults who prey upon their weaknesses. [ 49 ] The specific nature of the sentencing objectives at s. 718.01 implies that other sentencing objectives - such as rehabilitation – are given less weight or consideration.

As explained by the Court of Appeal of Ontario in T.J. 2021 ONCA 392 , denouncing the abuse of children and deterring others from engaging in it must be paramount: [27] The provisions of s. 718.01 not only mean that denunciation and deterrence must be the primary objectives of the sentence, but

that “it is no longer open to a sentencing judge to elevate other sentencing objectives, for example rehabilitation, to equivalent or greaterpriority than denunciation and deterrence in determining a proportionate sentence”. These other objectives may be given significantweight, but not priority or equivalency: Lis, at paras. 47-48, 53; Friesen, at paras. 101-4. [28] As the court in Friesen concluded, prioritizing the objectives of denunciation and deterrence “confirms the need for courts toimpose more severe sanctions for sexual offences against children”: at para. 101.

That need is directly related to the form of sanctionrequired, as separation from society reinforces and gives practical effect to denunciation and deterrence: at para. 103 [50] In the leading case of R. v. Friesen[15], the Supreme Court explained that sentencing judges must give effect to Parliament’ssignal to prioritize the objectives of denunciation and deterrence above all others for offences involving the abuse of children.

While asentencing judge can give a certain weight to other sentencing objectives, his/her discretion is nonetheless limited: [101] Parliament’s decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s.718.01 of the Criminal Code confirms the need for courts to impose more severe sanctions for sexual offences against children. In 2005,Parliament added s. 718.01 to the Criminal Code by enacting Bill C-2.

In cases that involve the abuse of a person under the age of 18, s.718.01 requires the court to give “primary consideration to the objectives of denunciation and deterrence of such conduct” whenimposing sentence. [102] The text of s. 718.01 indicates that Parliament intended to focus the attention of sentencing judges on the relative importance ofsentencing objectives for cases involving the abuse of children. The words “primary consideration” in s. 718.01 prescribe a relativeordering of sentencing objectives that is absent from the general list of six objectives in s. 718(

a) through (

f) of the CriminalCode (Renaud, at § 8.8-8.9). As Kasirer J.A. reasoned in Rayo, the word “primary” in the English text of s. 718.01 [translation] “evokesan ordering of the objectives . . . that is . . . relevant in the [judge’s exercise of discretion]” (para. 103). This ordering of the sentencingobjectives reflects Parliament’s intention for sentences to “better reflect the seriousness of the offence” (House of Commons Debates,vol. 140, No. 7, 1st Sess., 38th Parl., October 13, 2004, at p. 322 (Hon. Paul Harold Macklin)).

As Saunders J.A. recognized in D.R.W.,Parliament thus attempted to “re-set the approach of the criminal justice system to offences against children” by enacting s. 718.01 (para.32). [103]

Section 718.01 should not be interpreted as limiting sentencing objectives, notably separation from society, which reinforcedeterrence or denunciation. The objective of separation from society is closely related to deterrence and denunciation for sexual offencesagainst children (Woodward, at para. 76). When appropriate, as discussed below, separation from society can be the means to reinforceand give practical effect to deterrence and denunciation. [104]

Section 718.01 thus qualifies this Court's previous direction that it is for the sentencing judge to determinewhich sentencing objective or objectives are to be prioritized. Where Parliament has indicated which sentencing objectives are to receivepriority in certain cases, the sentencing judge's discretion is thereby limited, such that it is no longer open to the judge to elevateother sentencing objectives to an equal or higher priority (Rayo, at paras. 103 and 107-8).

However, while s.718.01 requires thatdeterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weight to otherfactors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overallprinciple of proportionality (see R. v. Bergeron, 2013 QCCA 7, at para. 37 ). [Emphasis added] [51] Through the courts, society must express its abhorrence of particular types of crime and the only way the courts can show this is by the sentences they pass[16] .

As explained by the Court in Friesen, Parliament’s emphasis on deterrence and denunciation as primarysentencing objectives in matters involving the exploitation of children reflects the values we hold dear as a society: [105] Parliament’s choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to thewrongfulness of these offences and the serious harm they cause. The sentencing objective of denunciation embodies the communicativeand educative role of law (R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 102).

It reflects the fact that Canadian criminal law is a“system of values”. A sentence that expresses denunciation thus condemns the offender “for encroaching on our society’s basic code ofvalues”; it “instills the basic set of communal values shared by all Canadians” (M. (C.A.), at para. 81). The protection of children is oneof the most basic values of Canadian society (L. (J.-J.), at p. 250; Rayo, at para. 104).

As L’Heureux-Dubé J. reasoned in L.F.W., “sexualassault of a child is a crime that is abhorrent to Canadian society and society’s condemnation of those who commit such offences must becommunicated in the clearest of terms” (para. 31, quoting L.F.W. (C.A.), at para. 117, per Cameron J.A.) [Emphasis added]

Section 718.2(a) (ii.1) [52] At s. 718.2(

a) of the Cr. C., one reads that « a sentence should be increased or reduced to account for any relevant aggravatingor mitigating circumstances relating to the offence or the offender». Included in the (non-exhaustive) list of aggravating factors is«evidence that the offender, in committing the offence, abused a person under the age of eighteen years» (s. 718.2(a) (ii.1) Cr. C.). [53] In essence, s. 718.2(a) (ii.1) Cr. C overlaps with the provisions set out at s. 718.01 of the Cr. C.

Section 172.1(2) [ 54 ] The offences for which the offender pled guilty should attract severe penalties. With respect to the crime of luring, more particularly,

section 172.1(2) of the Cr.C , provides for a minimum sentence of one year, with a maximum of 14 years. As the court explained in R. v Legare , 2009 SCC 56 , the purpose of the legislation is to criminalize child luring and to protect children, who are vulnerable members of society and particularly susceptible to exploitation by anonymous adult predators trolling the internet: [2] We are concerned on this appeal with legislation adopted by Parliament to shut that door on predatory adults who, generally for a sexual purpose, troll the Internet for vulnerable children and adolescents.

Shielded by the anonymity of an assumed online name and profile, they aspire to gain the trust of their targeted victims through computer “chats” — and then to tempt or entice them into sexual activity, over the Internet or, still worse, in person. [3] Our concern, more particularly, is with s. 172.1 of the Criminal Code , R.S.C. 1985, c. C-46 , which prohibits the use of computers to communicate with underage persons “for the purpose of facilitating the commission” of a specified (or secondary) offence.

And, more particularly still, our concern is with s. 172.1(1)(c), * which consists of three elements: (1) an intentional communication by computer; (2) with a person whom the accused knows or believes to be under 14 years of age; (3) for the specific purpose of facilitating the commission of a specified secondary offence — that is, abduction or one of the sexual offences mentioned in s. 172.1(1)(

c) with respect to that person. Included among them is “Invitation to sexual touching”, a crime under s. 152 of the Code. [ 55 ] In Friesen , the Court spoke of the evolving and pervasive nature of online technologies and the ways they are used in facilitating the exploitation of children: [47] New technologies have enabled new forms of sexual violence against children and provided sexual offenders with new ways to access children. Social media provides sexual offenders “unprecedented access” to potential child victims ( R. v. K.R.J. , 2016 SCC 31 , [2016] 1 S.C.R. 906 , at para. 102 ).

The Internet both directly connects sexual offenders with child victims and allows for indirect connections through the child’s caregiver. Online child luring can be both a prelude to sexual assault and a way to induce or threaten children to perform sexual acts on camera ( see R. v. Woodward , 2011 ONCA 610 , 107 O.R. (3d) 81 ; R. v. Rafiq , 2015 ONCA 768 , 342 O.A.C. 193 ). The Internet has also “accelerated the proliferation of child pornography” ( R. v.

Morelli , 2010 SCC 8 , [2010] 1 S.C.R. 253 , at para. 114 , per Deschamps J.). [48] Technology can make sexual offences against children qualitatively different too. For instance, online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child’s life at any time ( R. v. Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45 , at para. 92 ; R. v.

S. (J.) , 2018 ONCA 675 , 142 O.R. (3d) 81 , at para. 120 ). [ 56 ] In a subsequent paragraph, the Court commented on society’s response to the growing dangers for children’s safety wrought by the malevolent use of online technologies: [49] Both Parliament and the courts have begun to respond to the prevalence of, new forms of, and qualitative changes in sexual violence against children. Parliament has attempted to keep pace with these developments by amending sentencing provisions for sexual offences against children ( K.R.J. , at para. 103 ).

Courts too have been on a “learning curve” to understand both the extent and the effects of sexual violence against children and sentencing has evolved to respond to the prevalence of these crimes ( R. v.

F. (D.G.) , 2010 ONCA 27 , 98 O.R. (3d) 241 , at para. 21 ). [ 57 ] In Sinclair [17] , the Manitoba Court of Appeal observed that online technology has opened new avenues for communication for potential abusers, as a tool for grooming children: [60] […] in Friesen , the Supreme Court directed appellate courts and sentencing judges to bring “sentencing law into line with society’s contemporary understanding of the nature and gravity of sexual violence against children” (at para 50). This is especially relevant with respect to social media.

As the Supreme Court observed, the internet has opened a new window into easy access to children who can and do communicate with predators directly, “especially through child luring” (at para 94). Such easy access is apparent in this case, where the accused was able to access children from across the United States unimpeded. […] [75] The internet is a medium in which adults can engage in anonymous, low visibility and repeated contact with potentially vulnerable children.

It can be a fertile breeding ground for the grooming and preparation associated with the sexual exploitation of children by adults ( see R v Alicandro, 2009 ONCA 133 at para 36 ). [76] In the last decade, online child exploitation has exploded. In Canada, police-reported child luring incidents more than doubled between 2010 and 2017 and police-reported child pornography incidents more than tripled… 4.

The maximum penalty as a gauge in fixing a proper sentence [ 58 ] The seriousness with which the public regards the offences committed by the offender is reflected in the minimum and maximum penalties set by Parliament. Just as telling, the increased penalties for the said crimes over the past two decades signals an upward departure from past precedent in sentencing. In this regard one notes that in 2002, the offence of luring did not carry a minimum

penalty and that the maximum was six months on a

summary offence and five years on an indictable offence[18]. In 2007, the maximum penalties for the offence were increased to 18 months and 10 years respectively on a

summary and indictable election.[19]. It’s only in 2012 that a mandatory minimum of 90 days on a

summary election and one year on indictable election was added.[20] In 2015, themandatory minimum on a

summary election was increased to 6 months imprisonment and the maximum sentence increased to two years less a day[21]. The mandatory minimum on an indictable election remained the same (one year), but the maximum sentence was increased to 14 years imprisonment[22]. [59] A change in the minimum and maximum sentences indicates that Parliament regarded the previous penalties as inadequate.Changes in the legislation cannot be seen as mere formalities. Laws are not amended without reason.

Instead, the present terms ofimprisonment prescribed by Parliament for the offence of luring (as well as for the production and possession of child pornography)represents a growing awareness of its gravity and the blameworthiness of the offender. [60] In Friesen, the Court described the significance of the maximum penalty for an offence as a “yardstick» in fashioning aproportionate sentence: [96] Maximum sentences help determine the gravity of the offence and thus the proportionate sentence.

The gravity of the offenceincludes both subjective gravity, namely the circumstances that surround the commission of the offence, and objective gravity (L.M., atparas. 24-25). The maximum sentence the Criminal Code provides for offences determines objective gravity by indicating the “relativeseverity of each crime” (M. (C.A.), at para. 36; see also H. Parent and J. Desrosiers, Traité de droit criminel, t. III, La peine (2nd ed.2016), at pp. 51-52). Maximum penalties are one of Parliament’s principal tools to determine the gravity of the offence (C. C. Ruby etal., Sentencing (9th ed. 2017), at § 2.18; R. v.

Sanatkar (1981), (ON CA), 64 C.C.C. (2d) 325 (Ont. C.A.), at p.327; Hajar, at para. 75). [97] Accordingly, a decision by Parliament to increase maximum sentences for certain offences shows that Parliament “wanted suchoffences to be punished more harshly” (Lacasse, at para. 7).

An increase in the maximum sentence should thus be understood as shiftingthe distribution of proportionate sentences for an offence. [61] With respect to the increased penalties for offences involving the exploitation of children, more particularly, the Court statedthat: [99] These successive increases in maximum sentences indicate Parliament’s determination that sexual offences against children areto be treated as more grave than they had been in the past.

As Kasirer J.A. (as he then was) reasoned in Rayo, the legislative choice toincrease the maximum sentence for child luring [translation] “must be understood as a sign of the gravity of this crime in the eyes ofParliament” (para. 125).

We agree with Pepall J.A.’s conclusion in Stuckless (2019) that Parliament’s legislative initiatives thus giveeffect to society’s increased understanding of the gravity of sexual offences and their impact on children (paras. 90, 103 and 112). [62] From the foregoing, it follows that careful attention to the minimum and maximum penalties set out in the Cr.C., must be animportant consideration in sentencing the offender in the present matter.

As explained by Kasirir J.A. (as he then was) in the case ofRayo[23] : [175] In my view, the objective gravity of luring also militated strongly against the one-year sentence that was imposed. Courts havenoted that a legislative decision to set a minimum sentence and to raise the maximum sentence indicates an intention to signal an offenceof increased importance which should, in theory, be reflected in the sentences rendered.

The situation is comparable, overall, to that oftoughened sanctions highlighted by my colleague Bouchard J.A. in Régnier, which dealt with the possession and distribution of childpornography. [Emphasis added, references omitted] [63] To counter the importance of minimum sentencing as a benchmark for sentencing in this matter, counsel for the defense aptlynoted that our Court of Appeal, by a majority of two to one in the case of Bertrand Marchand, upheld a trial judge’s conclusiondeclaring that the mandatory minimum sentence at s. 172.1 (2) (

a) violates s. 12 of the Canadian Charter of Rights and Freedoms (thefreedom not to be subjected to cruel and unusual punishment). [64] The Majority’s decision is predicated on the fact that the offences at s. 172.1 cover a great range of behaviour andcircumstances – including circumstances that would render a minimum sentence totally disproportional for the offender. In support ofthis position, the majority pointed to statements made in obiter by judges Moldaver and Karakatsanis in the case of Morrison[24] to theeffect that s. 172.1(2)

a) Cr.C. was susceptible to a constitutional challenge: [115] In Morrison, written by Moldaver, J., seven of the nine judges found it “unwise” to rule on the constitutional validity of themandatory minimum sentence under s. 172.1(2)(

a) considering, first, the error of law upon which the courts below established Mr.Morrison’s guilt, and second, the Court’s decision to quash the verdict for that reason and order a new trial. Nevertheless, Moldaver, J.deemed it appropriate to note that “several features of s. 172.1 suggest that the mandatory minimum under subs. (2)(

a) is, at the veryleast, constitutionally suspect.” In fact, supported by case law, he added, “[s]ubsection 172.1(2) “casts its net over a wide range ofpotential conduct”, making it potentially vulnerable to constitutional challenge given the range of reasonably foreseeable applications ofthe mandatory minimum”. [116] In her concurring reasons, Karakatsanis, J. for her

part concluded that it is preferable to decide the constitutional question toavoid, among other things, other individuals being convicted of a child luring offence by way of indictment and finding themselvessubject “to a mandatory minimum sentence that is constitutionally unsound”. [117] Thus, she first noted that the offence of luring targets a multitude of situations and that the mandatory minimum sentence itcarries is accordingly more vulnerable to constitutional challenge.

[References omitted] [65] The Court did not question that the offence of luring is a serious one, especially in today's age where technological means allow quick and easy access to children [25] . However, the circumstances of the case justified a sentence that was below the mandatory minimum prescribed by law. To this effect, the Court referred to the factual findings of the first judge holding that the offence of luring for which the offender was charged with began well after the first face-to-face meeting with the complainant [26] .

In this sense, t he luring alleged against the accused cannot be likened to «grooming» within the meaning of the case law. On this point, the Court quoted with approval the comments of the trial judge: [… ] the acts committed by the offender do not constitute preparatory grooming of the adolescent for the purpose of lowering her inhibitions and convincing her to participate in sexual activities. She had already consented to such activities three times .

They are instead repeated attempts, through the use of electronic conversations, to have sexual intercourse with her again, made in the specific context of a young vulnerable girl who was under the Director of Youth Protection’s care. [27] . [Emphasis in the original] [66] In the same vein, the Court’s majority dismissed the appellant’s argument claiming that the trial judge erred by considering the victim’s consent to be a mitigating factor.

Rather, the references made to consent were used to distinguish the circumstances of the case from the more insidious child grooming cases discussed in the case law. [67] Finally, the presentence report was favourable to the offender who was but 22 years of age and without a criminal record.

Though the risk of recidivism was present, it could be reduced by psychosocial therapy [28] . [68] As a result, the majority in Bertrand Marchand did not disturb the sentence of 10 months imprisonment on the count of sexual interference and 5 months on the count of child luring, to be served concurrently with the sentence of 10 months handed down by the trial judge. [69] Writing in dissent, Justice Levesque would have sentenced the offender to the mandatory minimum sentence of one year, to be served concurrently with a sentence of ten months for sexual interference.

In his view, the trial judge improperly minimized the objective and subjective seriousness of the offence: [29] I am of the view that the trial judge unduly minimized the objective gravity of the offence to which the respondent pleaded guilty and that she diminished the subjective gravity of the offence by considering that several instances of sexual relations had already taken place without the victim’s objection. [70] Moreover, in limiting the scope of the luring to encounters subsequent to the luring, the trial judge failed to consider that the offender had specifically chosen the victim on account of her vulnerability: [36] These observations emerging from the evidence and from the respondent’s own admission support the conclusion that the respondent knowingly and more specifically because of the strong dependence and great vulnerability of the victim chose to use the means of telecommunication available to him and the victim to multiply their encounters to ensure his control and maintain his domination over her solely for the selfish purpose of satisfying his sexual impulses. [71] Given his conclusion that the offender merited a prison term of 12 months, Justice Levesque didn’t have to address the issue of whether s. 172.1(2) of Cr.

C. runs contrary to s. 12 of the Charter . [72] Putting aside the different perspectives on the gravity of the circumstances described in the case, both the majority and the minority agree that the offence of luring is serious, e specially as it involves the use of popular social media to target children.

In a footnote to their decision, the majority references the comments of justice Karakatsanis in Morrison recognizing that « [i]n many cases, the appropriate sentence will be a term of imprisonment that falls within the range contemplated by s. 172.1(2) ( a ) [29] .» [73] The circumstances of the case in Bertrand Marchand places the luring in a specific context, making it possible to conduct an individualized assessment of the offender’s moral culpability. In our case, one must bear in mind that the offender initiated and maintained the contact with his victims through social media.

More still, the evidence shows that he was not the least concerned about the manner in which his actions negatively impacted his victims. He was not even affected by the victim’s pleas to stop with his ever- increasing demands, lest she kill herself. The gravity of his lewd and devious demands was compounded by the fact that he coerced the first victim into finding another young girl for his selfish gratification. [74] Finally, I add that defence counsel in the present matter doesn’t raise a s. 12 Charter issue. As mentioned in an earlier

section of this decision, the defence’s position is that the minimum one year sentence on each count of luring – as provided in the Cr.C . – adequately reflects the offender’s moral culpability. If she highlighted the Court’s decision in Bertrand Marchand , it was to point out that the minimum sentence should not be seen as a starting point from which to gage the gravity of the offender’s moral culpability and, ultimately, to mete out the proper sentence 5.

Parity in sentencing (a brief review of the case law) [75] No one – including defence counsel in the present matter – denies that deterrence, denunciation and separating offenders from the community are the primary objectives in offences involving the sexual exploitation of children. But as mentioned above, those principles are not the only ones that a sentencing judge must consider. Parity in sentencing also comes into play.- that is, a sentence

should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances ( Cr. Code , s. 718.2 (b)). In R. v. Ostertag, 2000 ABCA 232 CanLII, at par. 11, Justice Veit explained the principle as follows: [11] […] A person convicted of an offence has the right to expect a sanction that will not be more severe than the sanctions imposed on others who are similarly situated; the community has the right to expect that a person convicted of an offence will not receive a more favourable sanction than others who are similarly situated and have committed similar offences.

Starting-point sentencing guidelines support the principles of equality and uniformity. [76] An appropriate sentence, therefore, must be mindful of the punishments meted out by our courts for other similarly situated accused. [77] Though courts should strive for consistency as a matter of abiding importance for the administration of justice, any comparative study of the case law has its inherent limitations. To begin, it is difficult, if not impossible, to find case law where the circumstances are identical to the case at bar. Next, sentencing is an inherently individualized process.

It is therefore plausible for two offenders having committed the same offence under similar circumstances to receive different sentences. As the Court explained in R. v. M. (C.A.) , at para. 92. […] It has been repeatedly stressed that there is no such thing as a uniform sentence for a particular crime. Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.

As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred […]. [References omitted] [78] In the case of R. c. H.V [30] , Justice Myriam Lachance provides an exhaustive review of the case law with respect to sentences meted out for the offence of luring decided both before and after the decision of the Supreme Court in Friesen .

For the sake of convenience and brevity, I will quote from her decision only the cases in which the offenders were charged by indictment. A first set of the said cases includes decisions that struck down the mandatory minimum sentence of one year: • R. v. Saffari, 2019 ONCJ 861 , luring by indictable offence: imprisonment for 5 months; • R. v. Hood , 2018 NSCA 18 , luring by indictable offence: 15 months house arrest; • R. v. Faroughi, 2020 ONSC 780 , luring by indictable offence: imprisonment for 7 months; • R. v.

Bertrand Marchand , 2020 QCCQ 1135 , luring by indictment: 5 months on the count of luring to run concurrently with the sentence of 10 months for child interference. (As we now know, the decision was upheld on appeal) • R. v. C.D.R ., 2020 ONSC 645 , luring by indictment, 6 months of imprisonment [31] . [79] A second set of reported cases in Lachance J.’s decision includes cases where the mandatory minimum passed constitutional muster: • St-Pierre v. R ., 2008 QCCA 894 , luring charged by indictment: 12 months' imprisonment; • R. v. Aubut , 2008 QCCQ 7722 (affirmed on appeal Aubut v.

R ., 2009 QCCA 46 ), luring by indictable offence: 12 months' imprisonment; • R. v. Lefebvre, 2012 QCCQ 5604 , luring charged by indictment: 10 months' imprisonment; • R. v. Bergeron , 2013 QCCA 7 , luring charged by indictment: 12 months' imprisonment; • R. v. A.H ., 2016 ONSC 6364 , luring charged by way of indictment: 15 months' imprisonment; • Perron v. R., 2015 QCCA 601 , luring charged by way of indictment: imprisonment of 12 and 18 months; • R. v. Thivierge , 2016 QCCQ 2259 , luring charged by indictment: imprisonment of 18 months; • Lavoie-Santerre v.

Attorney General of Canada, 2016 QCCQ 17287 , luring charged by indictment: imprisonment for 2 years less a day; • R. v. Théroux , 2018 QCCQ 13444 , luring charged by indictment: imprisonment of 12 months; • R. v. Rayo: 2018 QCCA 824 , luring charged by indictment: 12-month imprisonment upheld on appeal • R. v. Cowell , 2019 ONCA 972 , luring charged by indictment: 12-month imprisonment upheld on appeal; • R. v. McKenzie , 2019 QCCQ 7250 , luring charged by indictment: 18 months' imprisonment; • R. v. Leduc, 2019 QCCQ 8586 , luring charged by way of indictment : imprisonment of 12 months; • R. v.

Sutherland , 2019 NWTSC 55 , charged by way of indictment: imprisonment for 12 months; • R. v. Reeves , 2020 ABQB 78 , luring charged by indictment: 12 months' imprisonment [32] .

[80] In another set of decisions, Lachance J. notes an upward trend for cases decided after the judgement of the Supreme Court in Friesen : • R. v. Poitras, 2020 QCCQ 3211 (currently on appeal Poitras v. R. , 2020 QCCA 805 ), luring charged by way of indictment: concurrent sentences of 36 months' imprisonment on each count (1 to 7 and 9 to 37); • R. v. J.K.D., 2020 BCPC 211 , luring charged by way of indictment: 18 months' imprisonment consecutive to the other counts; • R. v. Wolff , 2020 BCPC 174 , luring charged by way of indictment: 18 months' imprisonment; • R. v.

J.R., 2021 ONCJ 14 , luring charged by way of indictment: imprisonment for 5 years; • R v. Jissink , 2021 ABQB 102 , luring charged by way of indictment: imprisonment for one year; • R v. Melrose, 2021 ABQB 73 , luring by indictable offence: suspended sentence and probation (90 days' imprisonment under 151 Cr. C.) [33] . [81] In Rayo , the Quebec Court of Appeal’s review of the case law determined that the range for luring was between 12 to 24 months [34] . More still, the Court noted that the case law – as well as the increased penalties set out in the Cr.

C. – points to an upward trend in jail sentences, even when the luring doesn’t involve a physical contact with the child: [125] As early as 2006, in Jarvis , the Court of Appeal for Ontario proposed a sentencing range of 12 to 24 months for luring, a range that, faced with what he called a “pervasive social problem”, Moldaver J.A. increased in Woodward in 2011. Indeed, the choice to increase the maximum sentence for luring and to impose a minimum sentence must be understood as a sign of the gravity of this crime in the eyes of Parliament.

In A.H ., for example, the Ontario Superior Court of Justice imposed 15 months of prison for a luring charge concerning a young victim the offender had known for a comparable period. In Clarke , the offender was sentenced to 18 months of imprisonment for luring, separately from the sentences for the other related offences he committed. Unlike this case, the offender had communicated with the child for a longer period of time and was not a first offender but, like here, there was systematic grooming.

The judge in Clarke would have imposed a sentence of two years, but following the Crown’s suggestion, set the sentence at 18 months instead. [126] It is true that 12-month sentences are frequently imposed for luring, including in matters where the “victim” of luring is a police officer. In the present matter, however, given the victim was very young and suffered greatly – even having suicidal thoughts – as a result of the respondent’s conduct, a harsher sentence appears justified.

In Paradee , the Court of Appeal of Alberta imposed a 12-month sentence for luring where there had been no physical contact with the child and where the circumstances were analogous to those here: “a classic case of luring, a prolonged, deliberate and careful cultivation of a young person with a view to engendering trust and intimacy, all designed to promote sexual conduct between the two parties.” I note that in Paradee , where the offender pleaded guilty, the Court indicated that, but for the Crown’s position, it would have imposed a more severe sentence than 12 months of prison. [127] In Mills , a 14-month prison sentence for luring was imposed on appeal in a context where a police officer had posed as a 14- year-old girl.

The acts took place over a two-month period and the contact was regular. The accused sent a picture of a penis and was arrested when he showed up to meet the girl. As for mitigating factors, the accused had no criminal record, no diagnosis of pedophilia following a psychological evaluation, possessed no juvenile pornography and that no child had actually been contacted. [128] In R. v. Gucciardi , the accused pleaded guilty to a single count of luring. Over the course of three weeks, he had engaged in conversations with a police officer pretending to be a 14-year old girl.

He asked for naked photos of the girl and sent a video of himself masturbating. It clearly came through from the exchanges that he wanted to have sex with her and he was arrested when he showed up to meet her. The judge held that there had been grooming and significant engagement in the plan to assault the child, as occurred here. However, he also noted the guilty plea, the sincere expression of remorse and the fact that the accused had undertaken multiple therapies for his deviant sexual behaviour.

In the end, the minimum 12-month sentence was imposed. [References omitted] [82] This range of 12 to 24 months for luring was reiterated in 2020 in Montour [35] where the Court of Appeal also specified that it could be revised upwards following the Supreme Court of Canada's teachings in Friesen [36] . [83] With the release of R. v. Friesen , the Supreme Court of Canada heralded the dawn of a new era for the approach to be taken where sexual crimes are committed upon children [37] .

Sentences, explained the Court, must increase to more accurately reflect the wrongfulness of sexual violence against children and the far-reaching, ongoing harm that it causes to children, families and society at large [38] . [84] The emphasis on denunciation and deterrence is all the more important when one considers that the widespread use of the internet gives delinquents - disposed to corrupting and exploiting children - unprecedented access to a vast number of potential victims.

On this matter, the comments of the Court in Friesen bear repeating: [47] New technologies have enabled new forms of sexual violence against children and provided sexual offenders with new ways to access children. Social media provides sexual offenders “unprecedented access” to potential child victims (R. v. K.R.J., 2016 SCC 31 , [2016] 1 S.C.R. 906, at para. 102 ). The Internet both directly connects sexual offenders with child victims and allows for indirect connections through the child’s caregiver.

Online child luring can be both a prelude to sexual assault and a way to induce or threaten children to perform sexual acts on camera (see R. v. Woodward, 2011 ONCA 610 , 107 O.R. (3d) 81; R. v. Rafiq, 2015 ONCA 768 , 342 O.A.C. 193). The Internet has also “accelerated the proliferation of child pornography” (R. v. Morelli, 2010 SCC 8 , [2010] 1 S.C.R. 253, at para. 114 , per Deschamps J.).

[85] Compounding the problem with child exploitation via social media is the fact that photos and videos put online can last forever. In essence, the victims of child pornography are victims for life. The comments of the Court in Friesen regarding the manner in which the photos posted online leave a lasting stain also bear repeating: [48] Technology can make sexual offences against children qualitatively different too.

For instance, online distribution of films or images depicting sexual violence against a child repeats the original sexual violence since the child has to live with the knowledge that others may be accessing the films or images, which may resurface in the child’s life at any time ( R. v. Sharpe , 2001 SCC 2 , [2001] 1 S.C.R. 45, at para. 92 ; R. v.

S. (J.) , 2018 ONCA 675 , 142 O.R. (3d) 81, at para. 120 ) [86] In Sinclair , the Manitoba Court of Appeal reiterated the same concerns with the manner in which the internet can become an open door for child exploitation, describing it as «a breeding ground for the grooming and preparation associated with the sexual exploitation of children by adults [39] .» [87] All this to say that the case law relating to the exploitation of children prior to the Supreme Court’s decision in Friesen must be approached with caution since they may not reflect the change in jurisprudence [40] . [35] […] When a body of precedent no longer responds to society’s current understanding and awareness of the gravity of a particular offence and blameworthiness of particular offenders or to the legislative initiatives of Parliament, sentencing judges may deviate from sentences imposed in the past to impo

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