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Criminal - Sentencing - Sex Offences (2). R. v. M.V.
In R. v. M.V. (Ont CA, 2023) the Court of Appeal considered (and allowed) a sentencing appeal regarding sexual interference, and separate child luring and related, guilty pleas.
Here, the court considers sentencing principles for possession of child pornography:(4) The Sentencing Range for Possession of Child Pornography
[94] The sentencing range for possession of child pornography is uncertain, just as the range for the child luring offence remains uncertain. In Kwok, Molloy J., based on the authority available in 2007, identified a sentencing range for possession of child pornography of 6 to 18 months. That range is still applied by some courts, even after Friesen: see, for example, R. v. Snead, 2021 ONSC 7017, at para. 23 (12 months), and see R. v. Noonan, 2023 ONSC 3351, (12 months, concurrent to 3 years for child luring); R. v. Branco, 2019 ONSC 3591, (179 days). Another line of authority is endorsing a sentence range of six months to “about” three years, but even these cases tend to impose sentences in the lower range: R. v. John, 2017 ONSC 810, 376 C.R.R. (2d) 91, aff’d 2018 ONCA 702, 142 OR (3d) 670 (10 months), and see R. v. Beierle, 2017 ONSC 5377 (12-month global sentence).
[95] Cases in this court vary. Some pre-Friesen cases tend towards the lower of those ranges[6]: see R. v. Schulz, 2018 ONCA 598, 142 O.R. (3d) 128 (45 days intermittent); R. v. John, 2018 ONCA 702, 142 O.R. (3d) 670 (10 months). In other cases, longer sentences are imposed. In R. v. McCaw, 2023 ONCA 8, 165 O.R. (3d) 179, a sentence of three years was upheld for a small collection of child pornography, but Mr. McCaw had two prior convictions for the same offence, and in Inksetter, a three year concurrent sentence of imprisonment was imposed for possession of child pornography conviction and three and one-half years imprisonment concurrent was added on an additional conviction of the more aggravated offence of “making available”.
[96] Sentences in the Ontario Court of Justice, where summary prosecutions are more common, only rarely exceed one-year imprisonment: see, for example, R. v. A.M., 2023 ONCJ 181 (nine months); R. v. Bellas-Menzie, 2022 ONCJ 444 (six months); R. v. Scattolin, 2019 ONCJ 357 (seven months), R. v. Hems, 2019 ONCJ 779 (two months consecutive to sentence for luring), but see R. v. Kaardal, 2022 ONCJ 441 (400 days for possession of highly intrusive images, aggravated by evidence of distribution).
[97] Conditional sentences for possession of child pornography are not uncommon: see, for example, R. v. Jongsma, 2021 ONSC 796 (one-year conditional) R. v. S.B., 2022 ONCJ 536 (two years less a day conditional); R. v. Prendivoj, 2022 ONCJ 257 (six months conditional); and R. v. Cusick, 2022 ONCJ 590 (six months conditional).
[98] The maximum sentence for an indictable prosecution for the offence of possession of child pornography was doubled from five years imprisonment to 10 years imprisonment in 2015: Tougher Penalties for Child Predators Act, S.C. 2015, c. 23. The range for this offence must also increase. . R. v. M.V.
In R. v. M.V. (Ont CA, 2023) the Court of Appeal considered (and allowed) a sentencing appeal regarding sexual interference, and separate child luring and related, guilty pleas.
Here, the court considers the range of sentencing for child luring:(4) The Sentencing Range for Child Luring
[74] Uncertainty remains as to the appropriate sentencing range for child luring cases, a fact commented upon recently by Superior Court justices, including in R. v. Kavanagh, 2023 ONSC 283, at paras. 95-116; R. v. Sinnappillai, 2022 ONSC 832, at para. 64; and R. v. Collier, 2021 ONSC 6827, at paras. 90‑ 99.
[75] Until 2011, this court appeared to endorse a sentencing range for child luring of 12 months to 2 years: R. v. Jarvis (2006), 2006 CanLII 27300 (ON CA), 211 C.C.C. (3d) 20 (Ont. C.A.); R. v. El-Jamal, 2010 ONCA 575, 261 C.C.C. (3d) 293. More recently, while dissenting on other grounds, Karakatsanis J. affirmed this range in R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 177, commenting, “[i]n most cases proceeding by indictment, the appropriate range will be from 12 to 24 months.” She based these numbers on an examination of existing sentencing trends, including in this court: see Jarvis, at para. 31.
[76] Moldaver J.A. (as he then was), expressed a different opinion in Woodward, at para. 58. He concluded that Rosenberg J.A. did not intend to set a range in Jarvis, but, even if he had that a 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”: Woodward, para. 58. Justice Moldaver supported this provisional conclusion with the fact that Parliament has increased the maximum punishment, and that child luring is a pervasive problem: Woodward, para. 58.
[77] Despite Moldaver J.A.’s suggestion, few sentences imposed for the offence of child luring even meet the lowest end of that range, including sentences that have been upheld by this court. Even in child luring offences involving a real victim, rather than an undercover police officer, sentences almost invariably fall within the six-months to two-year range: see, for example, R. v. Dragos, 2012 ONCA 538, 111 O.R. (3d) 481 (18 months of a 23 month global sentence, including a sexual assault after successful luring); R. v. Rafiq, 2015 ONCA 768, 342 O.A.C 193 (two-years-less-a day); R. v. A.H., 2018 ONCA 677, 366 C.C.C. (3d) 69 (Ont. C.A) (15 months). This remains largely true even after the Friesen decision. This court has considered child luring sentences on at least four occasions since Friesen. In three of those cases, child luring sentences of two years or less have been upheld, including R. v. Mould, 2020 ONCA 78 (168 days); R. v. Stack, 2022 ONCA 413; (two years, and four months consecutive for related breaches); and R. v. Ritchie, 2023 ONCA 53, (16-months). In Crawford, a six-year global sentence was upheld that included a child luring conviction. However, the child luring that Mr. Crawford engaged in facilitated contact and sexual intercourse with an 11‑year‑old developmentally delayed classmate of Mr. Crawford’s son, who suffered significant psychological damage as a result of his offences, and whose relationship with her grandmother – her guardian – ruptured because the grandmother tried to keep her away from Mr. Crawford. Crawford is not instructive on the range of sentencing appropriate where the luring occurs without the commission of accompanying sexual offences.
[78] Decisions in the Superior Court of Justice are split. There is an expression of support for a post-Friesen movement to a three to five-year sentencing range (see, R. v. Moolla, 2021 ONSC 3702 (three-and-a half years)), but other decisions tend not to raise the sentencing range: See for example, Collier (two years less a day); Sinnappillai; (16 months); Kavanagh, (16 months), and R. v. Lypaczewski, 2023 ONSC 3696 (12 months).
[79] The range also continues to lean towards reformatory sentences in the Ontario Court of Justice: see, for example, R. v. Wickramasinghe, 2022 ONCJ 331 (global sentence of two-and-a half years for child luring of two victims, and possession of child pornography); R. v. Rasiah, 2021 ONCJ 584 (18 months); and R. v. Gould, 2022 ONCJ 187 (18 months concurrent on child luring and invitation to touching against three victims). Exceptionally, in R. v. J.R., 2021 ONCJ 14, the accused, who had a related record, received five years for luring and extorting sexual conduct from his daughter, who was between 11 and 12 years of age at the time of the offences over a seven-month period while she was in Children’s Aid Society care.
[80] In considering a provisional range that will enable a fit sentence for the appellant to be determined for the child luring offences, I would make the following observations.
[81] First, child luring is an inchoate offence, meaning that it is “a preparatory crime that captures conduct intended to culminate in the commission of a completed offence”: Morrison, at paras. 40, 176. Put simply, the function of the child luring offences is to prevent assault-based sexual offences before they happen. Often there is no real victim when child luring offences are committed, but an undercover officer posing as a victim: see examples: R. v. Haniffa, 2022 SCC 46, 475 D.L.R. (4th) 496; and R. v. Braithwaite, 2023 ONCA 180. Typically, preparatory offences carry a lower penalty than fully consummated offences, such as attempts, which generally carry a sentence that is half of the sentence imposed for a completed offence: s. 463(d) of the Criminal Code. Child luring can therefore reasonably be expected to carry a sentencing range that is lower than the range applicable to assault-based sexual offences involving children.
[82] I agree with McArthur J. in Collier, at para. 97, that when the Supreme Court in Friesen made its comment at para. 114 about “mid-single digit penitentiary terms” being “normal”, and “upper-single digit and double-digit penitentiary terms” being neither “unusual” nor “rare”, the Court was addressing violence-based offences, which the Court defined earlier by listing assault-based sexual offences such as sexual interference and sexual assault. The context and language used by the Court in making this point supports this conclusion. In my view, this is one of the instances in the decision where the Court was focusing on the factual scenario before it, which involved sexual interference offences. This guidepost, offered by the Court, cannot be transplanted directly to the offences now under consideration, but the general principles must be.
[83] Second, the Court in Friesen did not abolish central, statutorily affirmed principles that have long played a crucial role in guiding sentencing decisions. The range that is determined cannot subvert but must reflect the principles of restraint, identified in ss. 718.2(d) and (e). Sentencing ranges for child luring offences must go up, but with due regard for the liberty implications of doing so.
[84] Third, although child luring is a serious offence that will generally require incarceration, it is a broad offence that can be committed by a wide range of offenders in varied situations, some of which may not deserve elevated levels of punishment: Morrison, at para. 179, per Karakatsanis J. The sentencing range that is established must not be narrow and must not have a harsh lower end.
[85] It is material, in this regard, that child luring (not unlike possession of child pornography) can proceed either as a summary or indictable offence. A summary conviction prosecution for each offence carries a maximum of two years imprisonment: s. 172.1(2)(b) (child luring) and s. 163.1(4)(b) (child pornography). It would make little sense to establish a sentencing range for an indictable prosecution of these offences that begins at a higher level than the maximum sentence for summary prosecutions. In practice, doing so would encourage a largely unused sentencing range. There are also principled reasons to be cautious about starting a sentencing range for indictable offences that begins above or at the top of the maximum sentence for summary conviction offences. Doing so would arguably give prosecutors undue influence on the minimum sentence likely to be imposed by electing to proceed by indictment when it is for judges and not prosecutors to assess fit sentences, in all of the circumstances.
[86] Fourth, when the jurisprudence of this court does mature to the point where sentencing ranges should be established, the admonition of the Court in Friesen, at paras. 30-31, requires consideration. Both the category of the offence and the logic behind it must be described clearly.
[87] At this juncture, based on those principles, I am prepared to proceed on the child luring offences with the benchmark that an upper-range sentence is marked not by the two years that predominates in current authority, but by the five‑year mark identified by Moldaver J.A. (as he was then) in Woodward. I have significant reservations about endorsing a three-year sentence as the bottom of the range, for the reasons I have expressed. . R. v. M.V. [this did not reference R v Bertrand Marchand (SCC, 2023), which was released just prior]
In R. v. M.V. (Ont CA, 2023) the Court of Appeal considered (and allowed) a sentencing appeal regarding sexual interference, and separate child luring and related, guilty pleas.
In these quotes the court considers sentencing for sexual offences, here respecting child victims:General Considerations
[40] I would begin by noting that the sentence imposed will be influenced by the goals of sentencing, identified in s. 718 of the Criminal Code, that predominate in the circumstances of the case. For child luring, the primary sentencing objectives are deterrence and denunciation: Friesen, at para. 101; and see s. 718.01 of the Criminal Code. The same holds true for the offence of possession of child pornography: R. v. Stroempl (1995), 1995 CanLII 2283 (ON CA), 105 C.C.C. (3d) 187 (Ont. C.A.); R. v. Inksetter, 2018 ONCA 474, 141 O.R. (3d) 161, at paras. 3, 16 (citations omitted); R. v. McCaw, 2023 ONCA 8, 165 O.R. (3d) 179, at para. 28; R. v. S.C., 2019 ONCA 199, 145 O.R. (3d) 711, at para. 24, leave to appeal refused, [2019] S.C.C.A. No. 38625.
[41] To accomplish deterrence, a sentence must be serious enough to discourage both the offender (“specific deterrence”) and others (“general deterrence”) from engaging in such behaviour in the future. Indications that the offender is likely to reoffend can increase the length of sentence required to specifically deter the offender, just as indications of remorse and of rehabilitative steps can reduce the required length: see, for example, R. v. Ghadban, 2015 ONCA 760, 342 O.A.C. 177, at para. 23.
[42] In the case of offences against children, a sentence must also be sufficient to denounce the wrongfulness of the conduct and the actual and potential harm that the offences give rise to. This imperative, reaffirmed in Friesen, at paras. 50, 76-86, is not new. This court reminded sentencing judges of the same thing in R. v. D.(D.) (2002), 2002 CanLII 44915 (ON CA), 58 O.R. (3d) 788 (C.A.), at para. 45, and this was reinforced prior to Friesen, in R. v. Stuckless, 2019 ONCA 504, 146 O.R. (3d) 752, at paras. 55-56, 70, per Huscroft J.A., and paras. 86-91 per Pepall J.A., (concurring).
[43] In Friesen it was made clear that trial judges are to sentence in a fashion that reflects both “potential harm” and “actual harm”: Freisen, at para. 76. “Potential harm” consists of reasonably foreseeable harm, based on the reasonably foreseeable consequences of the offence: Friesen, at para. 84. Beyond this, “actual harm” that has been proven can further aggravate the offence and is a “key determinant of the gravity of the offence”: Friesen, at para. 85. The importance of actual harm to a child victim is reflected in s.718.2(a)(iii.1) of the Criminal Code, which identifies “a significant impact on the victim, considering their age and personal circumstances” as a statutory aggravating factor.
[44] There are limits on how long sentences can be made to achieve the utilitarian goals of reducing crime and protecting society through deterrence and denunciation. It would violate the fundamental principle of proportionality to impose a sentence that either exceeds or fails to reflect the “gravity of the offence” and the “degree of responsibility of the offender”: s. 718.1. Therefore, offences of the same kind can yield a range of penalties, situated on a spectrum. The worse the offence and the greater the degree of responsibility, the greater the sentence should be.
[45] In measuring the gravity of the offence and the degree of responsibility of the offender and situating the offence on that spectrum, a court that imposes the sentence shall take into consideration the aggravating and mitigating circumstances relating to the offence and offender: see s. 718.2(a). The role of aggravating and mitigating factors is to assist in assessing the gravity of the offence and the degree of responsibility of the offender: R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739, at para. 11.
[46] It is helpful to think of the material aggravating factors as those that increase the gravity of the offence relative to other offences of the same kind, or that increase the degree of responsibility of the offender, relative to other offenders committing the same kind of offence. It is helpful, in turn, to think of material mitigating factors as those that reduce the gravity of the offence relative to other offences of the same kind, or that move the degree of responsibility of the offender downwards relative to other offenders committing the same kind offence.
[47] Aggravating and mitigating circumstances are not the only considerations in identifying a fit sentence for the crime in question. A proportionate sentence is also identified by applying the principles that govern sentencing for the offence in question and by considering the material sentencing objectives. I will refer to principles relevant to this case as they arise.
[48] Before applying this analysis to the facts of this case, I would make two general points about aggravating and mitigating factors, because these general points arise in this case.
[49] First, given that the inquiry into aggravating and mitigating circumstances is undertaken to determine where the offences to be sentenced sit relative to other offences of the same kind, so that a fit sentence can be imposed, sentencing considerations that apply to all offences of a particular type do not perform this role and are not “aggravating” in the true sense of the term. It would therefore be an error in principle to use considerations that apply to all offences of the type being sentenced as a basis for pushing a particular offence up the sentencing range appropriate for that offence. For this reason, I would not defer to the trial judge’s decision to identify as aggravating the fact that the appellant was fully mature when he committed the offence. By definition, to commit the offence of child luring the offender must have attained the age of maturity required to commit an offence against a child. The fact that he groomed the children is also inherent in a child luring offence, although the nature, extent and duration of the grooming that occurred can certainly be an aggravating consideration: see R. v. Woodward, 2011 ONCA 610, 107 O.R. (3d) 81, at para. 43; and see Friesen, at para. 125.
[50] I have already made the second general point that requires comment, but it warrants reiteration. To be appropriately considered, aggravating factors must relate to the offence being sentenced. In this case, that is the “remaining sentence” for the charges on the child luring Information, given the trial judge’s acceptance of the joint position on the sexual interference charges.
[51] Once the gravity of the offence and the degree of responsibility are identified, it falls to the trial judge to identify where within the appropriate sentencing range or relative scale of punishment the sentence will fit and what the sentence should be. The scale of sentencing that applies is crucial in arriving at those calculations, since “proportionality” offers no objective criteria for quantifying a sentence. In Friesen, at para. 33, Wagner C.J.C. and Abella J. explained that the principle of parity, which is closely linked to the identification of sentencing ranges, “gives meaning to proportionality”. Absent referable scales of punishment, reasonable people can disagree profoundly on how long a sentence of incarceration needs to be to promote effective deterrence, or to express denunciation. Sentencing ranges therefore anchor the scale or proportionality of sentences in pursuit of the central principle of justice that like cases should be treated alike, and they reflect the accumulated wisdom over time of numerous judges attempting to craft just punishments.
[52] Neither the Friesen position that sentencing ranges are “guidelines, not hard and fast rules,” para. 37, nor principles of appellate restraint in interfering with sentencing decisions, diminish the importance of sentencing ranges in identifying fit sentences. Those doctrines are intended to give maximum tolerable reach to sentencing discretion, and to limit sentence appeals to truly unjust outcomes. In my view, notwithstanding the limits of appellate review, a sentencing judge should set out to anchor their decision in the ranges exhibited by related cases, as affected by the directions of binding authority such as Friesen.
[53] The Supreme Court of Canada, writing in Friesen, sent a “strong message” to courts to ensure that sentences involving sexual offences against children, including child luring, are proportionate and reflect the “wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large”: Friesen, para. 5. The Court invited appeal courts to depart from past precedents to achieve this: see Friesen, at para. 35. It provided guidance on applicable sentencing principles in sexual offence cases involving children, including child-luring, to assist in this evaluation, but cautioned that because of the facts before them, the guidance it was providing focused on assault-based sexual offences: Friesen at para. 44.
[54] Noting that reports of child luring tripled between 2010 and 2017, the Court emphasized the dangers of technology in facilitating sexual offences: Friesen, at paras. 46-49. The Court also reinforced the emphasis that is to be given to the “personal autonomy, bodily integrity, sexual integrity, dignity, and equality” rights of children, and to focus on “emotional and psychological harm” to the child and to families: Friesen, at paras. 56, 63. It reinforced the wrongfulness in exploiting the vulnerability of children for sexual purposes and directed courts to consider that sexual offences against children are underreported: Friesen, at paras. 65, 67. The Court called for sentencing practices to reflect this “deepening and evolving understanding of [the] severity” of sexual offending, as well as the inherent “wrongfulness and harmfulness of sexual offences”: Friesen, at paras. 74-75. The Court also directed courts to ensure that sentencing ranges reflect Parliament’s intention to increase sentences through legislative increases in maximum sentences: Friesen, paras. 96-100, 108.
[55] The Court did not identify sentencing ranges for offences, leaving it to appellate courts to do so, but the Court commented that “mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances”: Friesen, at para. 114.
[56] The message is clear. Given Friesen and the increase in the maximum penalty for child luring to 14 years in 2015 through the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, the sentencing ranges reflected in existing authority for both child luring and possession of child pornography require reconsideration. Given that the establishment of a sentencing range is best identified incrementally, I do not purport to determine a set range applicable to the kinds of offences that the appellant committed, but it is evident that the existing sentence range cannot be applied without adjustment, and I propose to do so.
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[69] Similarly, his previous prosocial conduct has only limited significance in the sentencing of sexual offences, given that many sexual offences are committed by persons of prior good character and in many cases, prior good character helps enable sexual offences, see: R. v. Profit, 1993 CanLII 78 (SCC), [1993] 3 S.C.R. 637, at pp. 637-638 and R. v. R.W.D. (2005) 2005 CanLII 20711 (ON CA), 198 C.C.C. (3d) 541 (Ont. C.A.), at para. 12. ... . R. v. Bertrand Marchand
In R. v. Bertrand Marchand (SCC, 2023) the Supreme Court of Canada strikes down the mandatory minimum sentencing 'child luring' provisions of CCC 172.1(2)(a-b) under Charter s.12 ['cruel and unusual treatment or punishment'].
In these quotes the court considers when a consecutive sentence, or alternatively a concurrent sentence - is indicated, here in the child luring context:[91] The sentencing judge first determined the just and appropriate sentence for each offence individually. Next, she considered whether the sentences ought to be consecutive or concurrent. Only after doing this did she consider the principle of totality in s. 718.2(a), which ensures that “the cumulative sentence rendered does not exceed the overall culpability of the offender” (R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 42; see also R. v. Hutchings, 2012 NLCA 2, 316 Nfld. & P.E.I.R. 211, at para. 84, and Desjardins v. R., 2015 QCCA 1774, at paras. 37-42 (CanLII), which have endorsed a similar approach).
[92] I agree with the sentencing judge’s approach in this case and believe it has benefits over the alternative manner of simply setting a global amount for multiple offences. This sequential approach ensures a separate consideration of the fit and appropriate punishment of each offence. Given the separate objectives and distinct criteria for the luring offence, it was appropriate to examine each offence individually [translation] “in order to understand properly the weight this offence contributes to the offender’s moral blameworthiness” (Rayo, at para. 55).
[93] Articulating individual sentences for each offence provides needed clarity and is of great assistance when one of the challenged punishments are varied on appeal or declared to be unconstitutional. Setting an individual sentence for each offence provides transparency and allows a judge to weigh the seriousness of each offence. Clearly identifying individual sentences may also prove to be of great assistance in any subsequent sentencing proceedings should an offender re-offend — for example, by providing sentencing judges with a starting point when applying the “jump principle” to repeat convictions for the same offences (R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at para. 39).
[94] The sentencing judge determined that Mr. Bertrand Marchand’s sentences for sexual interference and luring should be served concurrently because the offences were closely connected. While deference is owed to a judge’s decision on whether to impose a consecutive or concurrent sentence (R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at para. 46), respectfully, the sentencing judge erred by imposing a concurrent sentence in this case. To properly account for the distinct legal interests that the luring offence protects, the sentences should have been consecutive.
[95] Parliament has removed judicial discretion and has dictated that sentences must run consecutively for certain offences, like child pornography where the offender also commits another sexual offence against that child, or where there are sexual offences other than child pornography committed by the same offender against several children (Criminal Code, s. 718.3(7)). Generally speaking, “offences that are so closely linked to each other as to constitute a single criminal adventure may, but are not required to, receive concurrent sentences, while all other offences are to receive consecutive sentences” (Friesen, at para. 155; see also Criminal Code, s. 718.3(4)(b)(i)). Determining whether sentences should be consecutive or concurrent is a fact-specific inquiry to be undertaken in the context of each case (C. C. Ruby, Sentencing (10th ed. 2020), at §14.13).
[96] Luring is legislatively linked to listed secondary offences: an offender must communicate for the purpose of facilitating the commission of one such offence. While there will be cases where luring stands alone, it often accompanies the actual commission of a listed secondary offence. But the luring that preceded or produced the offence is in no way subsumed or supplanted within the secondary offence. This is because the offence of luring protects a distinct social interest and causes distinct harms compared to the secondary offences (Rayo, at paras. 130 and 134).
[97] Offences constituting “invasions of different legally protected interests” can be sentenced consecutively, even if they form part of the same criminal transaction (Rayo, at para. 136, quoting R. v. Gummer (1983), 1983 CanLII 5286 (ON CA), 38 C.R. (3d) 46 (Ont. C.A), at p. 49; R. v. Gillis, 2009 ONCA 312, 248 O.A.C. 1, at para. 9; R. v. Morton, 2021 ABCA 29, at paras. 32‑33 (CanLII)). Parliament intentionally targeted conduct that precedes the commission of the enumerated sexual offences and seeks to protect children from the possibility of sexual exploitation facilitated by the internet (Rayo, at paras. 138-39; Reynard, at paras. 19-20; Alicandro, at para. 36; Legare, at para. 25). As set out above, luring can cause distinct harms as a result of psychological manipulation. As such, in most cases luring will attract a consecutive sentence (Rayo, at paras. 133-43; R. v. McLean, 2016 SKCA 93, 484 Sask. R. 137, at paras. 50-53; Miller, at paras. 22‑23). As noted in Rayo, the distinct offence of luring may seem to go unpunished, at least in part, where the luring sentence runs concurrently to the sentences for the related offences (para. 152).
[98] This is not to say that luring must always be sentenced consecutively. Unless so mandated by s. 718.3(7), sentencing judges retain discretion on this point. However, in exercising their discretion, judges must remain cognizant of the fact that the offence of luring constitutes an invasion of a different legally protected interest. The judge is obliged to explain why the sentence is to be served concurrently with the penalties imposed for other infractions. The reason for imposing a concurrent sentence must be provided. I also note that judges must be mindful not to double count: where a judge orders that a sentence for luring be served consecutively to any sentence for a secondary offence, the secondary offence cannot act as an aggravating factor in determining the luring sentence.
(3) Totality
[99] The effect of the totality principle is to require a judge to ensure that the series of sentences are, in aggregate, “just and appropriate” (see M. (C.A.), at para. 42; Criminal Code, s. 718.2(c)). This involves taking “one last look at the combined sentence” to assess whether it is “unduly long or harsh, in the sense that it is disproportionate to the gravity of the offence and the degree of responsibility of the offender” (Hutchings, at paras. 42 and 84; Laguerre v. R., 2021 QCCA 1537, at para. 43 (CanLII); M. (C.A.), at para. 42). If the principle of totality is offended, the sentences can be adjusted by making some concurrent, or if this does not achieve a just and appropriate sentence, by reducing the length of one or more sentences (Desjardins, at para. 34).
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