New & Notable: Setting the Record Straight on Jarvis

In the recent decision of R v Woodward, 2011 ONCA 610 the Ontario Court of Appeal set the record straight about its previous decision in R v Jarvis, 2006 CarswellOnt 4863 (CA). It also sent a clear message about the appropriate principles and range of sentencing in luring and child sex assault cases.

Thomas Edward Charles Woodward was charged with offences including luring (172.1(1)(c)), sexual touching (151(a)) and sex assault (271) in relation to his Internet luring and sexual contact with a young person. This young person was 12 years old and lived with her parents. In August or September 2006 Woodward sent a private text message to the complainant – he was 30 years old at the time. The text message originated through a chat site that the complainant could access via her mobile phone. The text message asked the complainant if she would sleep with him for $57 million. The complainant did not reply. A subsequent text message again asked the complainant if she wanted to have sex; this time she replied [para 7].

That response led to further texts numbering in the hundreds. These texts ultimately led to a meeting [para 8]. In the lead up to this meeting Woodward had offered the complainant increasing amounts of money to sleep with him; he even let her listen in on a call that was purportedly with a Bank of Montreal employee who indicated that Woodward had $300 million in his account. This lead the complainant to believe that Woodward had that kind of money and influenced her decision to meet him as her family was experiencing financial problems [para 10]. 

When the complainant met with Woodward he purportedly called the Bank of Montreal and transferred money into an account in her name. Thereafter he initiated sexual acts with the complainant including having her perform fellatio on him and having sexual intercourse with her [para 12]. 


Woodward was convicted after trial by Justice Nicklas. The judge ultimately sentenced Woodward to six and a half years jail. He appealed.

On appeal the appellant the court outlined the ground of appeal relating to the sentence as follows:

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 [para 53].

One of the cases relied upon by the appellant was Jarvis. With respect to Jarvis, Moldaver JA – on behalf of the court – noted that the reliance appears to be based on para 31 of that decision wherein Rosenberg JA offered the following: “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” [para 54].

Moldaver JA then turned to discuss whether that comment properly set a range. After suggesting that was not the intention of Jarvis, Moldaver JA then offered the following clear statement about the future impact of Jarvis:

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 [para 58].

Moldaver JA ultimately upheld the six and a half year sentence imposed by Justice Nicklas and concluded with the following quotable quote:

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 [para 75]; [emphasis added].

DG Mack