R. v. Woodward, 2011 ONCA 610

CITATION: R. v. Woodward, 2011 ONCA 610

DATE: 20110926

DOCKET: C50668

COURT OF APPEAL FOR ONTARIO

Moldaver, Cronk and Epstein JJ.A.

BETWEEN

Her Majesty The Queen

Respondent

and

Thomas Edward Charles Woodward

Appellant

K. Y. Tina Yuen, for the appellant

Kim Crosbie, for the respondent

Heard: July 7, 2011

On appeal from the conviction entered by Justice Sharon M. Nicklas of the Ontario Court of Justice on September 29, 2008 and from the sentence imposed on December 17, 2008.

Moldaver J.A.:

[1] Following an eleven-day trial before Nicklas J. of the Ontario Court of Justice, the appellant was convicted on September 29, 2008 of the following offences:

· Luring a child under the age of 14 for the purpose of facilitating the offence of sexual interference, contrary to s. 172.1(1)(c) of the Criminal Code.

· Touching a child under the age of 14 for a sexual purpose, contrary to s. 151(a) of the Criminal Code.

· Inviting a child under the age of 14 to touch him for a sexual purpose, contrary to s. 152 of the Criminal Code.

· Attempting to obtain, for consideration, the sexual services of a person under the age of 18, contrary to s. 212(4) of the Criminal Code.

· Sexual assault, contrary to s. 271 of the Criminal Code.

[2] The Crown proceeded by way of indictment on all the counts. As a result, the offences of sexual interference, invitation to sexual touching and sexual assault each carried a maximum punishment of ten years’ imprisonment. The offence of luring was punishable by a maximum of five years’ imprisonment,[1] and the offence of attempting to obtain sexual services for consideration carried a maximum punishment of two-and-one-half years.[2]

[3] On December 17, 2008, the trial judge sentenced the appellant to a global sentence of six-and-one-half years, consisting of the following individual sentences:

· Five years for the offence of sexual assault.

· Four years concurrent for the offence of touching for a sexual purpose.

· Two years concurrent for the offence of invitation to sexual touching.

· 12 months concurrent for the offence of attempting to obtain sexual services for consideration.

· 18 months consecutive for the offence of luring a child for a sexual purpose.

[4] All the sentences imposed on the appellant were made consecutive to a sentence he was then serving for unrelated crimes. The trial judge also made several incidental orders under various sections of the Criminal Code, which I need not address since they have not been raised on appeal.

[5] The appellant appeals against conviction solely in relation to the offence of luring. He also appeals from the six-and-one-half year global sentence he received. For the reasons that follow, I would dismiss both his appeal against conviction and his appeal against sentence.

OVERVIEW OF FACTS

[6] The basic facts are not in dispute. In September 2006, the complainant was 12 years old and lived with her parents. She had a cellular telephone through which she could access the internet using a mobile browser. One mobile website she accessed was known as Airdate. Among other features, the Airdate site provided the complainant with access to various chat rooms, as well as to a “private inbox” where messages could be received without being visible to other users of the site.

[7] In late August or early September 2006, the complainant received a message in her private inbox. The source turned out to be the appellant, who was then aged 30. He wanted to know if the complainant would sleep with him in exchange for $57 million. The complainant did not reply. Soon after, she received another similar message from the appellant, in which he identified himself by a fictitious name and pretended to be much younger (between 18 and 20 years of age) than he was. He asked the complainant to send him a text message if she changed her mind about sleeping with him.

[8] The complainant became curious and sent a text message to the phone number the appellant had provided. And so began a series of text messages back and forth, numbering in the hundreds, that culminated in a meeting between the appellant and the complainant several days later.

[9] In the course of trading text messages, the appellant gained the complainant’s trust by letting her discuss her personal life and her friends at school. He also talked to her about sex acts he wanted to perform with her. For example, he wanted to know if she had “ever performed oral” and he asked her “to give him oral”. She agreed to do so. He also talked about performing oral sex on her, which she did not fully understand. Finally, he wanted to take her virginity. The complainant informed the appellant that she was only 12 years old (she had initially led him to believe that she was 14). The appellant told the complainant that her age did not really matter. He said that he was “experienced” and that he knew “how to do that really good so that she would have a good time for her first time.”

[10] Throughout their text messaging, the appellant kept increasing the sum of money he was prepared to pay the complainant if she would meet with him and have sex. According to the complainant, the sum went from $57 million to $100 million, and then to $200 million. In her mind, the appellant was raising the amount to “kind of convince” her to go and meet him. She initially did not believe that he had that kind of money. However, she listened in on a three-way conversation and heard a message, purportedly from someone at the Bank of Montreal, indicating that the appellant had $300 million in his account. This caused the complainant to change her mind about the appellant’s financial status. It also influenced her decision to meet with him, as her family was experiencing serious financial problems at the time.

[11] With the promise that she would be paid a large sum of money, the complainant agreed to meet the appellant on a particular day after school at a predetermined location. Upon her arrival, the appellant led the complainant to an industrial area near some railway tracks. He then used his cell phone to call the Bank of Montreal. With the complainant listening, he made it appear as though he were transferring millions of dollars into an account in her name. In fact, he had contacted a recorded voice-message that the bank had installed to teach customers how to use the bank’s automated telephone banking system.

[12] Having convinced the complainant that he had transferred a large sum of money to her, the appellant initiated sexual acts with her. He put her hand on his penis and had her move it up and down. He then had her perform fellatio on him and he touched her genitals. He next told her to bend over and from behind, he put his penis in her vagina and had sexual intercourse with her. Afterwards, he had her perform fellatio on him a second time.

[13] In the days that followed, the complainant went to the Bank of Montreal, only to discover there was no bank account in her name. She did not tell anyone about the incident for the next six months. A discussion in her health education class about sexual abuse and harassment prompted her to disclose the incident. Her teacher told the class that sexual abuse was not the fault of the child. With that information, the complainant went home and told her mother about the incident with the appellant. The police were contacted and the appellant was eventually arrested and charged with the five offences for which he now stands convicted.

[14] The appellant did not testify at trial. However, upon his arrest, he provided a statement to the police in which he denied knowing the complainant and maintained that she had mistakenly identified him as her assailant. That statement was led at trial through the investigating officer.

[15] The trial judge rejected the appellant’s denial – and with good cause. The evidence implicating him as the assailant was overwhelming. I do not propose to review it. The trial judge did so in great detail and the appellant does not challenge her findings on the issue of identification.

[16] Against that backdrop, I turn to the conviction appeal which, as indicated, relates solely to the offence of luring.

I. CONVICTION APPEAL

[17] The provision that creates the offence of luring a child is found in s. 172.1 of the Criminal Code. It was enacted by the Criminal Law Amendment Act, 2001, S.C. 2002, c. 13 and came into force on July 23, 2002. Section 172.1 was amended in 2008, after the charges against the appellant were laid. During the period when the appellant was charged and convicted, s. 172.1(1)(c) stated:

172.1(1) Every person commits an offence who, by means of a computer system within the meaning of subsection 342.1(2), communicates with

…

(c) a person who is, or who the accused believes is, under the age of fourteen years, for the purpose of facilitating the commission of an offence under section 151 and 152, subsection 160(3) or 173(2) or section 281 with respect to that person.[3]

[18] The introductory words of the provision indicate that it is designed to capture people who communicate “by means of a computer system within the meaning of

subsection 342.1(2)” of the Criminal Code. The definition of a “computer system” and other relevant definitions in s. 342.1(2) are set out below:

“computer system” means a device that, or a group of interconnected or related devices one or more of which,

(a) contains computer programs or other data, and

(b) pursuant to computer programs,

(i) performs logic and control, and

(ii) may perform any other function;

“computer program” means data representing instructions or statements that, when executed in a computer system, causes the computer system to perform a function;

“data” means representations of information or of concepts that are being prepared or have been prepared in a form suitable for use in a computer system;

“function” includes logic, control, arithmetic, deletion, storage and retrieval and communication or

telecommunication to, from or within a computer system;

[19] In order to convict someone of an offence under s. 172.1(1), the communication in question must be through a means that satisfies the definition of “computer system” in s. 342.1(2). The appellant argues that text messaging via cellular telephones does not satisfy the actus reus of communicating “by means of a computer system within the meaning of s. 342.1(2).”[4]

[20] In making this argument, the appellant accepts that Parliament’s objective in enacting s. 172.1(1) may well be advanced by a definition of “computer system” that captures text messaging. However, he maintains that the specific wording used in the Criminal Code to define the term “computer system” and other related terms is not broad enough to apply to text messaging. Alternatively, he submits that if the wording of s. 342.1(2) does capture text messaging, the evidence led by the Crown in this case did not satisfy certain key elements of the definition. For reasons that follow, I would not give effect to these arguments.

[21] At trial, the Crown called two witnesses who gave evidence on this issue. First, Sergeant Eugene Silva, a six-year veteran with the Waterloo Regional Police Technological Crime Unit, testified about cellular phones and explained that they are effectively self-contained computer systems that come within the definition of “computer system” in s. 342.1(2) of the Criminal Code.

[22] Second, the Crown called Mr. Robert Vanderklugt, a Corporate Security Manager at Bell Canada, who testified about the mechanics of text messaging and explained how text messages are transmitted through Bell Canada’s internal cellular telephone network. Unlike Sergeant Silva, whose evidence was directed at showing that cellular phones are self-contained devices that meet the first part of the definition of “computer system” in s. 342.1(2) of the Criminal Code, Mr. Vanderklugt’s testimony focused on the second element of the definition of “computer system” in s. 342.1(2). His evidence was to the effect that text messaging using cellular phones involves a group of interconnected devices, one or more of which contains computer programs, and that these computer programs perform logic and control functions in transmitting text messages.

[23] For reasons that will become apparent, I find it unnecessary to decide whether cellular phones constitute “self-contained computer systems” as Sergeant Silva testified and thus I do not propose to review his evidence further. I am satisfied on this record that Mr. Vanderklugt’s evidence answers the appellant’s arguments.

[24] The appellant complained in his factum that there was no evidence at trial of any “control” performed by a cell phone as required by subparagraph (b)(i) [of the definition of “computer system” under s. 342.1(2)]. Nor was there any evidence to even establish what is meant by the term “control”. In oral argument, the appellant raised for the first time the additional complaint that Mr. Vanderklugt did not adequately explain the term “logic” in subparagraph (b)(i) of s. 342.1(2) and did not relate that term to Bell Canada’s internal cellular telephone network.

[25] I am satisfied that Mr. Vanderklugt’s evidence addresses the issues of “logic” and “control” and provides a basis for concluding that text messaging using cellular phones is captured by the second part of the definition of “computer system” under s. 342.1(2) of the Criminal Code. I am further of the view that there was a sufficient evidentiary basis for the trial judge to find that the key elements of the definition had been met.

[26] Mr. Vanderklugt explained that the concept and mechanics of text messaging are virtually the same as the concept and mechanics of telephone calls made from a cellular phone. With respect to the latter, when he was asked what happens when a person presses numbers into a cellular phone and “hit[s] talk”, Mr. Vanderklugt gave the following evidence:

Q. All right. So if I press numbers into my cell phone and hit talk and I want to talk to somebody –

A. Yes?

Q. … what’s actually happening at that point?

A. You’re going from your cell phone to the cell tower which is like an antennae and then from there, you’re routing through a network to the home switch of the cellular phone which is like a computer system.

…

Q. The computer system, where is that located? In the tower?

A. No, it’s not in the tower. It’s at a location, we call them central offices.

Q. Okay.

A. In Ontario, there’s four locations for these central offices and in these four, four different locations, there’s, there’s one in Cambridge, there’s one in Scarborough, one in Etobicoke and… in Ottawa. And that’s where the programming for all the cell phones are. So it goes from the cell phone to the antennae or tower and from there, it’s going through a network to the switch, the telephone switch, which is like a computer, like I said.

Q. And then from the switch, where does it go?

A. It depends on the type of call that’s made. [It] all goes through software and translations and makes the connection with whatever phone number was dialed.

…

Q. All right. And at those four stations you’ve indicated, you’ve talked about computer programs.

A. Mmmhmm.

…

Q. Is that, is that what determines where the calls end up going then, those programs?

A. Yes.

Q. Now let’s say I’m phoning my son who has his cell phone with him. You talked about it going to a tower. That stays the same, is that correct?

A. Correct.

Q. And does it still go to one of those four central locations that you talked about?

A. Yes.

Q. Then what happens if I’m calling a cell phone?

A. It goes through translations of the, of your home switch, your cellular phone number. That switch, it, it determines where it has to route through, through software to your son’s cell phone. And through there, it’s going to the switch associated to your son’s cell phone through trunking to the tower closest to where your son would be.

Q. So it finds the tower closest to where that phone is actually at?

A. Correct.

[27] Mr. Vanderklugt was then asked about text messaging using cellular phones. He explained that text messages travel in essentially the same way as phone calls, although they travel “over a data network which is different than a voice network.” He confirmed that, as with telephone calls, it is computer programs that run the data network and direct where texts go. As for the “control” and “logic” functions referred to in subparagraph (b)(i) of the definition of “computer system” under s. 342.1(2), Mr. Vanderklugt provided the following evidence-in-chief:

Q. Lastly, sir, you talked about computer programs utilized in routing calls, correct?

A. Correct, I did, yes.

Q. And if I’m correct, those aren’t actually at the towers, the computer programs, but eventually from the tower goes to a central site where the computer programs take care of…

A. That’s correct.

Q. Those computer programs then control the flow of these calls, is that correct?

A. That’s correct.

Q. And does it, do they perform logic functions in doing so?

A. They do, yes.

THE COURT: Logic functions?

[Crown counsel]: Yes.

Q. And what do you mean by a logic function? Can you give us an example?

A. It – all the software is, is – there, there’s checks and balances and, and all the routing is, is checked all the time and, and updated and upgraded as required.

Q. But can you give us a, a simple example of what you mean by a logic function? Or are you able to at all?

A. No, no, I suppose I’m not, no. [Emphasis added.]

[28] In cross-examination, defence counsel (not counsel on appeal) returned to the “control” and “logic” functions associated with the computer programs used in Bell Canada’s internal cellular telephone network. Mr. Vanderklugt provided the following evidence in response to a series of questions related to these functions:

Q. Now, I just want to go back to see if you can help me understand. I didn’t know what the Crown was trying to get at, but he talked about the computer or computer programs at different locations. And you said that they control the flow of calls. Do you remember him asking you about that near –

A. Yes, I do, yes.

Q. … the end? Now the computers that we’re talking about, are these the computers that are located in the larger switch locations?

A. That’s correct.

…

Q. All right. And for simplicity, is it those switch locations that actually flows the control of where calls and text messaging goes?

A. The, the main computer, yes.

Q. Okay.

A. Yeah.

Q. And when he was talking about – but when you said performing logic functions, does that mean it’s computing codes and things like that?

A. I, I took him to mean that and I couldn’t give him an example of that. But logic to me is, is the path, you know, the, the network. But I, I can’t say that that’s the –

Q. All right.

A. … the true definition, but that’s what it means to me.

[29] During oral argument, we referred counsel to the passages from Mr. Vanderklugt’s evidence relating to the issue of the “control” function performed by the computer programs that transmit the data contained in the text messages between cellular phones. Counsel for the appellant acknowledged that this evidence addressed the “control” function and she did not pursue that issue. She did, however, argue for the first time that Mr. Vanderklugt’s evidence in relation to the “logic function” should be viewed as worthless and given no weight because he could not give a simple example of what he meant by the “logic function”. Counsel argued that his inability to do so underscores his lack of knowledge and understanding of computer programs in general and the computer programs at Bell’s larger switch stations in particular.

[30] I would not give effect to this submission. In chief, Mr. Vanderklugt explained that the “logic function” in the main computers was “all the software” that provides “checks and balances” and is responsible for checking all the routing of cellular calls and text messages. While Mr. Vanderklugt’s evidence may not have been particularly helpful in giving a specific example of what is meant by a logic function, it is beyond controversy that all computer software programs follow basic logic functions. It was not necessary for Mr. Vanderklugt to give a specific example of a logic function. The fact that the voluminous text messages in this case were successfully sent and received by their intended recipient is evidence that the computer programs used in the routing process performed “logic and control” functions in the sense meant by s. 342.1(2)(b)(i). As Mr. Vanderklugt’s evidence indicated, the computer programs used by Bell controlled the routing of the text messages through logic functions and processes programmed into the relevant software.

[31] In closing on this issue, I note that Parliament has now made two attempts to change the highly technical definition of “computer system” that currently appears in the Criminal Code: one through Bill C-46 and the other through Bill C-54.[5] Both bills contemplated changing the term “computer system” to “by means of telecommunications”. However, the two bills died on the order table. It remains for Parliament to decide whether the proposed amendment should be pursued.

II. SENTENCE APPEAL

[32] The appellant seeks a substantial reduction in the six-and-one-half-year sentence he received. At trial, he submitted that the appropriate range of sentence was two to three years. His counsel sought a sentence at the lower end of that range and suggested that a portion of it could be served as a conditional sentence. The appellant maintains that position on appeal.

[33] In support of the contention that his sentence should not have exceeded two years, the appellant submits that the trial judge made several specific errors in her sentencing analysis. He also argues that the total sentence of six-and-one-half years manifestly exceeds the range of sentences that other courts, including this court, have imposed on offenders who have committed similar offences.

[34] For reasons that follow, while I am prepared to accept that the trial judge may have made one error in her sentencing analysis, I would not interfere with the global sentence she imposed. In my view, having regard to the appellant’s background and character and the nature and gravity of his crimes, a mid- to upper-level single digit penitentiary term was called for and the sentence imposed by the trial judge fell within that range.

[35] I propose to first address the appellant’s specific concerns and then turn to his overriding complaint that the global sentence he received is manifestly excessive.

1. SPECIFIC ERRORS

i) The trial judge did not apply the correct sentencing principles

[36] The appellant submits that the trial judge erred in applying the sentencing principles and guidelines identified by this court in R. v. D.D. (2002), 163 C.C.C. (3d) 471. He also submits that she erred in using R. v. Deck (2006), 208 C.C.C. (3d) 341 (Alta. C.A.) as a reference point because it “is not instructive in Ontario” particularly when there is ample authority in Ontario that is “inconsistent with the approach adopted in Alberta.”

[37] The appellant submits that in applying the principles of D.D. to his case, the trial judge failed to recognize that D.D. involved an offender who violated numerous young boys on a regular basis over a lengthy period of time, whereas his case involved a single isolated incident of sexual abuse.

[38] The trial judge made no such error in my view. She fully appreciated that the appellant’s overt sexual misconduct towards the complainant occurred on only one occasion and twice commented on that factor in her reasons for sentence.

[39] To the extent that the trial judge relied on D.D., she simply extracted from it the principles of sentencing that this court has said should apply to adult sexual predators who exploit innocent children. These principles include that the sentencing objectives of denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing (D.D. at para. 34). As I shall explain further when I discuss the appropriateness of the global sentence in this case, the trial judge was correct in concluding that these principles apply with equal force to the case at hand.

[40] The appellant’s second complaint regarding the alleged misapplication of D.D. is that the trial judge erred in finding that a trust relationship existed between him and the complainant for sentencing purposes. In this regard, the appellant points out that, unlike the situation in D.D., he did not occupy a position of authority towards the complainant, nor was she entrusted to his care or dependent on him in any way.

[41] I would reject this submission. In using the term “trust” to describe the relationship in this case, I do not agree that trial judge had in mind the traditional trust relationship as described in D.D. The trial judge fully understood that the relationship between the appellant and the complainant was not the classic “position of trust” situation. In her reasons, after quoting a passage from D.D. in which the court referred to the abuse of children by “adult offenders in a position of trust”, the trial judge stated:

In reviewing that paragraph, I am mindful of the fact that this is not a traditional relationship of trust as is found in so many cases. At the same time, [the complainant] did come to trust Mr. Woodward in light of the frequency of their cyber contact.

[42] Rather, in using the word “trust”, the trial judge was referring to the grooming techniques the appellant used to gain the complainant’s trust. This is the type of “trust” that Fish J., writing for the court, discussed in R. v. Legare (2009), 249 C.C.C. (3d) 129 (S.C.C.), at paras. 29 and 30:

But those who use their computers to lure children for sexual purposes often groom them online by first gaining their trust through conversations about their home life, their personal interests or other innocuous topics.

As Hill J. explained in R. v. Pengelley, [2009] O.J. No. 1682 (QL) (S.C.J.), at para. 96:

…computer communications may serve to sexualize or groom or trick a child toward being receptive to a sexual encounter, to cultivate a relationship of trust, or to undertake a process of relinquishing inhibitions, all with a view to advancing a plan or desire to physical sexual exploitation of a young person. [Emphasis added.]

[43] Treating the appellant’s efforts at gaining the complainant’s trust through grooming as an aggravating feature finds support in this court’s decision in R. v. F.(G.C.) (2004), 188 C.C.C. (3d) 68, which treated grooming as an aggravating feature in a sexual assault case. In my view, grooming also properly constitutes an aggravating feature in the offence of luring and the trial judge did not err in treating it as such.

[44] Finally, I see no merit in the appellant’s submission that the trial judge erred in considering Deck. The facts in that case are similar to the facts in the present case, although by no means identical. Deck received a total sentence of seven years’ imprisonment for luring a 13-year-old child, who was of below average intelligence, to have sex with him and then proceeding to have intercourse with her on three separate occasions. Unlike the appellant, Deck pleaded guilty to the offence of luring and to the offence of sexual interference with a person under the age of 14 years, contrary to s. 151 of the Criminal Code. By pleading guilty, he spared the child from having to relive the events and from undergoing cross-examination designed to undermine her testimony.

[45] The trial judge in the present case recognized that “the Alberta Court [of Appeal] has taken a different stance with regard to starting points in relation to sexual offences than has been taken in Ontario”. Be that as it may, the overriding principles of sentencing endorsed by the court in Deck for adult sexual predators who exploit innocent children are very much in line with the principles this court enunciated in D.D. The trial judge was entitled to consider those principles and she did not err in doing so.

ii) The trial judge “double counted” the luring conduct

[46] The trial judge sentenced the appellant to a consecutive sentence of 18 months’ imprisonment for the offence of luring. The appellant acknowledges that it was open to the trial judge to impose a consecutive sentence for that charge. Having done so, however, he maintains that she was not entitled to use the same conduct, and particularly the grooming aspect of it, as an aggravating feature on both the luring and sexual assault charges. According to the appellant, if the trial judge increased the sentences on both counts based on the aggravating feature of the grooming aspect surrounding the offence of luring, that would amount to impermissible “double counting”.

[47] In support of this argument, the appellant relies on two passages from the trial judge’s reasons, both of which are contained in a list of aggravating features identified by the trial judge:

It is aggravating further that this offence occurred through the use of luring over the internet. Mr. Woodward contacted the complainant from hundreds of kilometers away … He then travelled to [name of location omitted to protect complainant’s identity] where he committed the offences… He was able to do so through the use of the internet without the watchful eyes of [the complainant’s] parents being aware of anything that was going on.

I also consider the number of communications between Mr. Woodward and the complainant. I have highlighted the frequency of contact leading up to the allegations and that there was some communication thereafter. I find this very troubling the degree to which Mr. Woodward was contacting this complainant. What is aggravating is that there is a predatory aspect to the manner in which he initiated and maintained intensive contact with the complainant leading up to the offences. She developed a virtual relationship with him, such that she ultimately was in a relationship with him where she trusted him with her secrets.

[48] I cannot be certain from reading the trial judge’s reasons that she did not use the appellant’s efforts at grooming the complainant to increase his punishment on both the luring offence and the sexual assault offence. Assuming she did engage in impermissible double counting, I consider the error to be harmless in the circumstances. At most, it would have warranted a slight reduction in sentence on either the luring count or the sexual assault count. Overall, as I shall explain, the global sentence of six-and-one-half years was within the appropriate sentencing range and I would not disturb it.

iii) The trial judge erred in treating the appellant’s prior convictions for fraud as an aggravating feature

[49] The appellant was 30 years old when he committed the offences against the complainant. This was by no means his first encounter with the criminal justice system. Since the age of 15, he has been in trouble with the law on a regular and persistent basis. Before the offences in issue, he had amassed a criminal record consisting of over 40 prior convictions. Most of his convictions are for crimes of dishonesty and include several dozen offences for fraud, theft, and possession of stolen property. In short, the appellant’s entire adult life has been marked by criminal deceit and duplicity.

[50] It is against the backdrop of this history of criminality that the trial judge treated the appellant’s record for fraudulent conduct as an aggravating feature. The impugned passage from her reasons reads as follows:

Another aggravating feature is that Mr. Woodward has a record for fraudulent conduct. Although there are no prior sex offences on his record, which is a mitigating feature in relation to his personal situation, I find at the same time that one could view the offences before the court as a very cunning fraud of a magnitude not previously founded in a conviction that has been registered against him. The communications between he and the complainant involved sexual dialogue about sexual activity. He was seductive and exploited [the complainant] and he took advantage of her being so naïve.

[51] The appellant takes issue with that passage. He claims that it was wrong for the trial judge to compare “the calculated deceit required to perpetrate a money fraud with the social acumen required to engage someone in sexually explicit conversation”. He further submits that “the use of such a tenuous comparison cannot trigger the rationale for imposing harsher penalties upon a defendant who has prior convictions for the same or similar misconduct.”

[52] I am satisfied that the trial judge was entitled to consider the appellant’s previous duplicitous conduct as an aggravating feature in his crimes against the complainant. The same type of conduct that led to his many previous convictions played a central role in the crimes he committed against the 12-year-old complainant. Not only did he mislead her as to his name and age, he also led her to believe that he would make her very rich if she engaged in sexual conduct with him. To that end, he concocted an elaborate story about having received a huge inheritance from a family member in Russia before he immigrated to Canada. To prove the extent of his enormous wealth and to convince the complainant that he was not misleading her about it, he had the complainant listen to a call to the bank wherein he purported to transfer millions of dollars into an account earmarked for her. Of course, the call was a misleading ruse. In addition to showing him to be morally bankrupt and a man of no scruples, the underlying misconduct for which the appellant was sentenced in this case was properly treated by the trial judge as misconduct with similar characteristics to that which had led to his prior convictions.

2. IS THE GLOBAL SENTENCE MANIFESTLY EXCESSIVE?

[53] The appellant submits that the six-and-one-half year sentence he received manifestly exceeds the “range of reasonableness for a one-time isolated incident with no overt threats or violence and no abuse of trust or authority.” He points to a number of authorities, including some from this court, involving offenders who engaged in online sexually explicit conversations with undercover police officers posing as children under the age of 14. In some of those cases, the conduct went beyond sexually explicit conversations and involved the transmission of sexually explicit images and/or sexually explicit acts. See R. v. El-Jamel, 2010 ONCA 575; R. v. Alicandro (2009), 95 O.R. (3d) 173 (C.A.); R. v. Jarvis (2006), 211 C.C.C. (3d) 20 (C.A.); R. v. Folino (2005), 77 O.R. (3d) 641 (C.A.); R. v. Jepson, [2004] O.J. No. 5521 (S.C.). In those cases, the sentences imposed at trial and/or on appeal to this court range from 45 days plus probation to sentences of 12 to 15 months plus probation.

[54] With the exception of this court’s decision in Jarvis, I do not propose to detail the facts and circumstances of the other cases cited. Jarvis is worth mentioning because it has been interpreted as holding that the appropriate range of sentence for the offence of luring is 12 months to two years. That stems from a comment found at para. 31 of the decision, where Rosenberg J.A., for the court, made the observation that the “decisions of trial courts that were placed before us suggest that the range of sentence for this offence [luring] generally lies between twelve months and two years.”

[55] The facts of Jarvis may be stated briefly. Jarvis pleaded guilty to luring a child over the internet. He was a 22-year-old first offender. He had seven communications with an undercover officer whom he believed to be a 13-year-old girl. In the course of his communications with the officer, he engaged in sexually explicit discussions and forwarded two photographs of his penis to the undercover officer. Jarvis pressed the undercover officer to meet in person and the officer agreed to do so. Jarvis was arrested when he arrived at the designated meeting point. He was not wearing underwear and he had brought a condom.

[56] At trial, Jarvis entered a plea of guilty to the charge of luring a child he believed to be under the age of 14, contrary to s. 172.1(1)(c) (as it then read). He received a sentence of six months’ imprisonment and three years’ probation. Both he and the Crown appealed that sentence and this court dismissed the appeals.

[57] Two comments about Jarvis are in order. First, I am not at all persuaded that Rosenberg J.A. was purporting to set the range of sentence for the offence of luring at 12 months to two years. Rosenberg J.A.’s reasons do not focus on the range of sentence for the offence of luring. Rather, they are concerned primarily with a discussion about certain evidence that the Crown sought to introduce at trial and additional evidence that it proposed to introduce as fresh evidence on appeal primarily for the purpose of establishing that children frequently use the internet and are vulnerable to being exposed to sexual content and sexual invitations. The evidence in dispute involved information obtained from a survey of children, 99% of whom reported that they used the internet to some extent. Many of the children surveyed reported that in their internet use they had received pornography on numerous occasions, had been exposed to unwanted sexual comments, and had been asked to meet in person the individual with whom they were chatting. None of the impugned evidence was admitted on appeal.

[58] Even if Jarvis did purport to set a range of 12 to 24 months for the offence of luring, that range needs to be revised given the 2007 amendment in which Parliament doubled the maximum punishment from 5 years to 10 years. Moreover, if it is shown through the introduction of properly-tendered evidence that the offence of luring has become a pervasive social problem, I believe that much stiffer sentences, in the range of three to five years, might well be warranted to deter, denounce and separate from society adult predators who would commit this insidious crime.

[59] One need only consider the facts of this case to appreciate the dangers and disturbing features of the crime of luring and the grave consequences that may flow from it – here, a face-to-face meeting between a 30-year-old predator and a 12-year-old child, resulting in the sexual assault of the child. Fortunately, the appellant did not inflict further harm on the complainant after the sexual assault. That, perhaps, is the one positive thing that can be said about him. But the offence of luring carries very real dangers – innocent children being seduced and sexually assaulted or even worse, kidnapped, sexually abused and possibly killed.

[60] The appellant seeks to support his position that the six-and-one-half year sentence is manifestly excessive by relying primarily on this court’s decision in R. v. Robinson, 2002 CanLII 44969, 159 OAC 286 (Ont. C.A.). Robinson was convicted of sexual assault and a related charge of sexual touching. He received a one-year custodial sentence and two years’ probation. On appeal, he challenged both his conviction and sentence.

[61] The facts in Robinson are set out at paras. 2 and 3 of the decision as follows:

The appellant and the complainant met on a chat line. The appellant was 42 years old and was a school teacher. The complainant was a 13 year old grade 8 student. On the chat line, the appellant pretended to be a seventeen year old high school football player.

The complainant testified that she eventually met the appellant in person in the fall of 1997 and saw him on several occasions between November 1997 and the end of March 1998. According to her, they had sexual intercourse at various places on several occasions over that time period.

[62] In his testimony at trial, Robinson denied engaging in any kind of sexual activity with the complainant. By its verdict, the jury obviously rejected his evidence. This court found no merit in Robinson’s appeal from conviction.

[63] In appealing his one-year sentence, Robinson argued that the trial judge was wrong in concluding that a conditional sentence was not warranted in the circumstances. This court rejected the appellant’s argument. In doing so, the court held at para. 19 that even if the trial judge erred as alleged, a conditional sentence was not appropriate:

This offence involved repeated sexual intercourse with a thirteen year old child by a school teacher. While there was no position of trust as between the complainant and the appellant, the appellant more than most people must understand the harm done to children by the kind of sexual conduct in which he engaged. There is also a predatory aspect to the manner in which the appellant initiated and maintained intensive contact with the complainant. A non-custodial sentence would have been inappropriate in the circumstances of this case. Considering the nature of the offence and the mitigating factors relating to the appellant, we think the sentence imposed was well within the appropriate range. [Emphasis added.]

[64] The appellant points to the final sentence of that passage – that the one-year sentence imposed on Robinson “was well within the appropriate range” – in support of his position that the sentence he received is manifestly excessive.

[65] The appellant also relies on Blouin J.’s decision in R. v. Lithgow, [2007] O.J. No. 4448 (C.J.). Lithgow pleaded guilty to sexual exploitation under s. 153(1) of the Criminal Code and luring under s. 172.1(1)(a) of the Criminal Code. The facts in Lithgow are set out at paras. 2 to 4 of the decision:

The complainant was 14 and 15 during the grades 9 and 10 years that Mr. Lithgow, then in his early fifties, was her teacher. During those two years they e-mailed and chatted using a computer. The discussion became increasingly more sexual in nature and developed into visits at lunch where touching occurred. Mr. Lithgow told the complainant that he loved her.

When the complainant was in Grade 11, Mr. Lithgow was no longer her teacher but continued in a position of trust acting as her math tutor. They continued contact by electronic means, which ultimately lead to oral sex and then unprotected intercourse on 25 to 30 occasions. He supplied alcohol and made her promise not to tell anyone. Except for the law, which prohibits consent under 18 in these situations, there was no indication of any lack of consent.

Eventually the complainant told her mother and the police were called. Mr. Lithgow, to his credit, gave an inculpatory statement to the police and made no attempt to get bail. When his wife found out, she ordered him out of the house.

[66] The reasons for sentence disclose that Lithgow had a record for uttering threats and breach of probation which post-dated the commission of the offences for which he was being sentenced. According to the pre-sentence report filed with the court, Lithgow had a history of anxiety, depression and suicidal ideation culminating in a diagnosis of major mood disorder. He was in need of mental health intervention and was motivated to receive mental health assistance while in custody and upon release. In the opinion of his probation officer, Lithgow did not “pose an imminent risk to the greater community”. At the time of sentencing, Lithgow had been in pre-trial custody for approximately five months.

[67] In the circumstances, the Crown sought a sentence of two years less a day minus the time Lithgow had spent in pre-trial custody. The defence essentially requested that he be given a conditional sentence, taking into account the time he had already served in pre-trial custody.

[68] Blouin J. provided thorough reasons for sentence. At paras. 16 and 17, he set out the aggravating and mitigating factors of the case as follows:

In concluding, the aggravating factors involve the breach of trust inherent in both of these offences. The difference in age between the complainant and the accused in this case was as great as one could imagine. Only time will tell the damage done to the complainant.

In mitigation, Mr. Lithgow pleaded guilty at the earliest opportunity, did not apply for bail, admitted his offence to the police, and has publicly showed great remorse for his offending behaviour.

[69] In the end, Blouin J. concluded that a sentence of 15 months for the offence of sexual exploitation, less 10 months’ credit for time spent in pre-trial custody, was appropriate. On the charge of luring, he imposed a 12-month conditional sentence.

[70] I find Lithgow to be of limited assistance. First of all, there were many mitigating factors in that case that do not exist in the appellant’s case. Unlike in Lithgow, the appellant did not plead guilty. Moreover, based on the record, he has no sense of the gravity and seriousness of his crimes, there is no evidence that he suffers from any form of mental illness, he is utterly without remorse, and he is not motivated in the slightest to change his ways. In addition, he has a very lengthy criminal record consisting of more than 40 prior convictions dating back to 1991. He has been in and out of jail since that time. His work record is sporadic at best and he has done virtually nothing of a productive nature for his entire life – a life characterized by fraud and dishonesty. Those factors alone serve to distinguish this case from Lithgow. They also distinguish it from Robinson, where the court at para. 19 referred to, but did not identify, the “mitigating factors relating to the appellant”.

[71] In any event, even if there are similarities between this case and Lithgow and Robinson, in my view, the sentences imposed in those cases do not establish an appropriate range for the type of offences committed by the appellant based on the sentencing principles established by this court in D.D.

[72] The case of D.D., it will be recalled, involved an adult predator in a position of trust who sexually abused a number of young boys on a regular basis over a lengthy period of time. The court in that case considered the appropriate range of sentences for offenders who engage in such conduct. In doing so, the court discussed the plight of children in general and the principles and objects of sentencing that must take precedence when adult predators choose to exploit innocent young children. The relevant considerations and principles from D.D., at paras. 34-38, are summarized below:

(1) Our children are our most valued and our most vulnerable assets.

(2) We as a society owe it to our children to protect them from the harm caused by sexual predators.

(3) Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators.

(4) Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow.

(5) Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

(6) Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.

[73] The foregoing concerns inform the fundamental message that D.D. sought to convey at para. 45:

The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear – prey upon innocent children and you will pay a heavy price!

[74] With respect, I do not believe that the price paid in Robinson or Lithgow was a heavy one. Indeed, I believe that the sentences in those cases were manifestly inadequate. Robinson predated D.D. and is not determinative for that reason; Lithgow did not refer to the principles in D.D. Had the principles in D.D. been applied, I believe that the appellants in those cases would have received substantially higher sentences.

[75] Adult predators who seduce and violate young children must face the prospect of a significant penitentiary term. The five-year sentence imposed on the appellant for the sexual assault he committed on the 12-year-old complainant is not excessive. In the light of the appellant’s past criminal activity and the lack of any meaningful mitigating factors available to him, if anything, it was lenient. While acknowledging that trial judges retain the flexibility to fashion a fit and just sentence in the particular case, crimes like those committed by the appellant will typically warrant mid- to upper-level single digit penitentiary sentences. The additional 18 months the appellant received for the offence of luring was entirely appropriate and did not render the global sentence excessive.

[76] In so concluding, I wish to emphasize that when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender’s prospects for rehabilitation will always warrant consideration, the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society’s well-being and the well-being of our children must take precedence.

[77] The victim impact statement filed by the complainant speaks to the immediate harm she suffered. Her grades in school have slipped, she feels unwell at times, she experiences nightmares and crying bouts, she does not respect white males that are older than her and generally, she “let everything go ... and just didn’t care anymore, about anything at all”, thinking at times “that it was my fault”. Hopefully, in time, she will be able to overcome these problems and move forward with her life.

[78] In the circumstances, while I would grant leave to appeal the sentence, I would dismiss the appeal from sentence.

DISPOSITION

[79] For these reasons, I would dismiss the appeals from both conviction and sentence.

Signed: “M J. Moldaver J.A.”

“I agree E. A. Cronk J.A.”

“I agree G. J. Epstein J.A.”

RELEASED: “MJM” SEPTEMBER 26, 2011

[1] In 2007, the section was amended to increase the maximum punishment for luring to ten years: see An Act to amend the Criminal Code (luring a child), S.C. 2007, c. 20.

[2] The offence relating to s. 212(4) of the Criminal Code was laid as an “attempt” to obtain sexual services for consideration. As such, per s. 463(d)(i) of the Criminal Code, the maximum punishment is half the punishment that would be available for the completed offence under s. 212(4). The completed offence is punishable by a maximum sentence of five years.

[3] The 2008 amendment eliminated reference to all offences except s. 281. Under the amendments to s. 172.1, the charge against the appellant would now fall under s. 172.1(1)(b): see the Tackling Violent Crime Act, S.C. 2008, c. 6, s. 14.

[4] While the initial communications between the complainant and the appellant occurred over the internet through the Airdate mobile website, the complainant in those conversations represented that she was over the age of 14. Hence, at trial, the Crown advised that it would only be relying on the text messaging communications that took place after the complainant had told the appellant that she was under the age of 14.

[5] See Bill C-46, An Act to amend the Criminal Code, the Competition Act and the Mutual Legal Assistance in Criminal Matters Act, 2nd Sess., 40th Parl., 2009; and Bill C-54, An Act to amend the Criminal Code (sexual offences against children), 3rd Sess., 40th Parl., 2010.