COURT OF APPEAL FOR ONTARIO
Miller, Trotter and Paciocco JJ.A.
BETWEEN
His Majesty the King
Appellant/Responding Party/ Moving Party
and
D.P.R.
Respondent/Moving Party/ Responding Party
Lorna Bolton, for the appellant/responding party (M57025)/moving party (M57172)
Sara Little, for the respondent/moving party (M57025)/responding party (M57172)
Heard: June 15, 2026
On appeal from the sentence imposed by Justice Scott K. Campbell of the Superior Court of Justice on October 17, 2025.
B.W. Miller J.A.:
1The respondent was convicted of sexually assaulting his stepdaughter when she was nine or ten years old. He received a conditional sentence of two years less one day, plus two years’ probation. The conditional sentence was to be served as house arrest for the first 18 months, with a significant increase in liberty thereafter. At the time the appeal of sentence was argued, he had served 241 days of his sentence.
2The Crown’s sentence appeal was severed from the respondent’s conviction appeal, which will be heard at a later date: R. v. D.P.R., 2026 ONCA 101.
3For the reasons given below, I would allow the sentence appeal, set aside the sentence imposed and impose a custodial sentence of three years. I would credit the respondent for time served to date on the conditional sentence on a 1:1 basis.
Factual overview
4The respondent was the stepfather of the complainant. After a five-day jury trial he was found guilty on a single count of sexual assault, committed in 2003 or 2004, when the complainant was nine or ten years old.
5The complainant’s parents separated when she was approximately seven years old. Shortly thereafter, the complainant’s mother and the respondent started dating, and the respondent moved into the apartment where the complainant lived with her mother and younger siblings. The respondent and the complainant’s mother eventually married and had three children together.
6The complainant’s mother often worked afternoons. The sentencing judge’s findings were that on the day the offence was committed, the complainant’s mother was at work and the respondent was left in charge of the complainant and her younger siblings. The respondent and the complainant were alone together in the living room. The respondent offered the complainant alcohol. She drank a small quantity of it and felt dizzy and lightheaded. She lay down on the floor on her back. The respondent climbed on top of her and she could feel something pushing between her legs in the area of her vagina. The respondent said, “good, let’s get you to bed.” The complainant told him that she needed to use the washroom. The respondent followed her in. The respondent told her he needed to urinate, but she wouldn’t get off the toilet. He got into the shower and she stated he was “fiddling” with his genital area. She complained to him that she was feeling lightheaded and ill. At some point, he offered her a little brown pipe.
7They went to the bedroom that the complainant shared with her younger sister. She lay down on the bed, facing her sister. The respondent lay down behind her. She felt something hard against her buttocks. She testified at trial that she believed it was his erect penis. He touched her buttocks with his hand, telling her it would make her feel better. He reached around and touched her vagina over her clothing, telling her the same thing.
8The touching in the bed lasted a minute. The respondent told the complainant not to tell her mother or anyone else, and if she did, the next time it would be her sister. The respondent then left the bedroom.
9The complainant did not disclose the sexual assault for many years. She became estranged from her mother and siblings and lived with her father.
Sentencing
10The sentencing judge did not make a finding that the respondent had accepted responsibility for the assault or demonstrated any remorse. Aside from admitting to the author of a pre-sentence report that he had touched the complainant’s buttocks, the respondent maintained that the episode did not happen and said he did not recall any of the details of what was alleged against him.
11The respondent’s circumstances at the time of sentencing were that he was single, employed by a recycling company, suffered a traumatic brain injury after being struck by a car when crossing the road in 2023, and had lived with his younger son since March 2023. No information was provided about the nature of the brain injury or its impact on the respondent, other than that the respondent treats its symptoms with smoking cannabis every other day.
12The respondent lives with his younger son (the complainant’s brother) who is an adult with autism and receives ODSP.
13The Crown sought a three year penitentiary sentence plus ancillary orders. The defence sought a conditional sentence of two years less one day, plus three years’ probation.
14In sentencing submissions, defence counsel described the respondent’s son, with whom he resided, as “autistic” and “dependent on” the respondent, but provided no explanation of his capacities, or his living arrangements prior to moving in with the respondent in March 2023. In submissions, the defence argued that the respondent’s son would have to find other accommodations as he would not be able to afford the apartment on what he received from ODSP.
The sentencing judge’s reasons
15The sentencing judge, as required by s. 718.2(a) of the Criminal Code, R.S.C., 1985, c. C-46, canvassed relevant mitigating or aggravating factors.
16The aggravating factors were identified as:
(1) The offence itself: the respondent was in a position of trust over the complainant, and while the duration of the assault was brief, it occurred in at least two different places in the home;
(2) The complainant was a child;
(3) The respondent used, or attempted to use, alcohol to reduce the complainant’s inhibitions or resistance;
(4) The assault occurred in the complainant’s home;
(5) The respondent sought to prevent disclosure through an implied threat of harm to the complainant’s younger sister; and
(6) The offence had a significant impact on the complainant – contributing to an estrangement with her mother as well as life-long psychological difficulties.
17The sentencing judge found four mitigating factors:
(1) The respondent is essentially a first-time offender: his criminal record is minor, dated, and unrelated to the offence of which he was convicted;
(2) The respondent’s family is supportive;
(3) The respondent has been steadily employed since high school; and
(4) The respondent’s adult son is dependent on him, and would not be able to maintain their current joint residence if the respondent was incarcerated.
18The sentencing judge accepted that the respondent had a high degree of moral culpability for the offence. None of the mitigating factors served to reduce his moral culpability.
19The sentencing judge canvassed the appropriate sentencing principles. He noted that both parties agreed that imprisonment was required. The sentencing judge also noted that restraint was required when sentencing a first-time offender, such that the shortest sentence proportionate to the offence should be imposed. Nevertheless, he also noted that denunciation and deterrence had priority as sentencing principles over rehabilitation and restraint, and even though the respondent was not considered at risk to re-offend, a custodial sentence was warranted.
20Canvassing the sentencing authorities provided by the Crown and the defence, the sentencing judge concluded the appropriate sentence was two years less one day, followed by two years of probation.
21Having concluded that two years less one day would be a fit sentence of incarceration, the sentencing judge considered whether a conditional sentence would be appropriate. In concluding that it would be, the sentencing judge noted that the assault did not result in bodily harm and that the respondent’s risk of re-offending was low. The sentencing judge was persuaded by the defence submission that a collateral consequence of the respondent’s incarceration would be the “likely displacement of their autistic son”, and that this constituted an exceptional circumstance that would make a conditional sentence appropriate.
The fresh evidence
22Both parties sought to introduce fresh evidence on appeal.
23The respondent sought to introduce fresh evidence about the extent of the respondent’s son’s dependence on the respondent and the length of time he had been living with the respondent.
24The Crown sought to adduce evidence that the respondent was no longer employed by the time of sentencing submissions, that the respondent’s son had not been living with him until just before the sentencing hearing and that the respondent had made arrangements for him in the event of his incarceration, and that the respondent’s house arrest had been more lenient than intended.
25Neither motion to admit fresh evidence is granted. With respect to the Crown’s motion, the majority of it could have been adduced at the time of sentencing with greater diligence. In any event, none of it is sufficiently cogent that it could have affected the result. Similarly, the proposed evidence tendered by the defence could have been adduced at the sentencing hearing. It is not appropriate to ask this court to conduct what would essentially be a fresh sentencing hearing on a new record.
Analysis
26Sentencing decisions, as the Supreme Court held in R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, are owed significant deference on appeal. Intervention is only warranted where: (1) the reasons for sentence contain an error in principle that impacts sentence (such as an error in law, failure to consider a relevant factor, erroneous consideration of an aggravating or mitigating factor, and unreasonable overemphasis or underemphasis of a relevant factor); or (2) the sentence imposed is “demonstrably unfit”: Lacasse, at para. 11.
27As explained below, the sentence imposed is demonstrably unfit. A sentence must be proportionate to the gravity of the offence and the degree of moral culpability of the offender. In R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, the Supreme Court held that a single sexual offence against a child should generally attract a “mid-single digit” sentence, reflecting the high moral blameworthiness of the conduct and the nature of the harm suffered by child victims, which can be profound and enduring: at paras. 50-90, 114-115. The Court held that sentences for sexual offences against children ought generally to be higher than sentences for similar offences committed against adults, and higher when committed by a person in a position of trust, particularly a family member: at paras. 116-118, 130. Sentencing is to prioritize denunciation and deterrence: at paras. 101-5.
28The moral culpability of the respondent is high. None of the mitigating factors identified by the sentencing judge serve to reduce it.
29As this court explained in R. v. M.M., 2022 ONCA 441, “conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate”: at para. 16. The court in M.M. did not attempt to enumerate what those exceptional circumstances would be. The sentencing judge in this case accepted that it would be inappropriate to incarcerate the respondent on the basis of the collateral effect his incarceration would have on his dependent adult son.
30This court has held that family separation consequences should be mitigated where possible and “may justify a sentence adjustment – even a significant one – or a departure from the range”: R. v. Habib, 2024 ONCA 830, at para. 45. However, collateral consequences – including family separation – cannot be allowed to overwhelm other sentencing principles and cannot result in a sentence that is disproportionate to the gravity of the offence and the moral blameworthiness of the offender.
31The sentence imposed is overly lenient. None of the cases relied on by the defence in support of a conditional sentence involved sexual offences against children. Furthermore, the evidence of a negative collateral impact on the respondent’s son did not rise above the ordinary family disruption that occurs whenever an offender with family responsibilities is incarcerated. Although the respondent’s son was described by counsel as “autistic”, there was no evidence about the nature of his disability beyond this broad label. The sole fact alleged in relation to the respondent’s son was that he would not be able to afford to continue residing in the apartment he shared with his father without his father’s financial support.
32Accordingly, the sentence imposed must be set aside. I would find an appropriate sentence to be a mid-single digit penitentiary sentence. As canvassed above, there were many aggravating factors: the offence was committed by the complainant’s stepfather in the family home. Alcohol was used. Although the assault was not part of a greater pattern of offending, it was not a momentary indiscretion and proceeded throughout three rooms of the apartment, despite the complainant protesting that she felt unwell and needed to use the washroom. The respondent abused the complainant emotionally by threatening to harm her younger sister in order if she disclosed the assault to her mother or another adult. The complainant testified that she suffered profound psychological harm from the offence, and that it contributed to her alienation from her mother and siblings when she was still a child.
33An appropriate mid-single digit sentence would be three years’ imprisonment.
DISPOSITION
34I would grant leave to appeal sentence and allow the sentence appeal. I would impose a sentence of three years’ imprisonment, with credit awarded for time served under the conditional sentence order on a 1:1 basis.
“B.W. Miller J.A.”
“I agree. Gary Trotter J.A.”
Paciocco J.A. (concurring):
35I, too, would deny the admission of the proposed fresh evidence. To the extent this evidence may be relevant, it is not cogent enough to warrant admission and could have been pursued at trial with greater diligence.
36I also agree that, on the evidence before the trial judge, a conditional sentence was manifestly unfit. The weight of the aggravating factors was imposing. Like my colleague, I am particularly struck by the reprehensible threat the respondent used to silence the complainant and the significant harm his selfish act has caused to her and her family. No remorse has been demonstrated.
37At the same time, this is not a case where a conditional sentence would pursue pressing rehabilitative or restorative goals. The trial judge based his decision to impose a conditional sentence almost exclusively on the collateral consequences of incarcerating the respondent on the respondent’s autistic adult son. I need not engage broader questions about when, if ever, purely collateral consequences can drive a conditional sentence, because in this case, the evidence of hardship is clearly insufficient to do so. It does not demonstrate, for example, that the son depends upon his father for the necessities of life, or to assist him in managing or maintaining a healthy life, or that without his father, the son is likely to become homeless. The factual proposition that defence counsel presented and the Crown accepted at trial was only that the son would be incapable of maintaining his current living arrangement if his father was made to serve a fit sentence in actual custody. In my view, this concern does not provide an adequate basis for selecting a conditional sentence in the face of the competing aggravating considerations that were before the trial judge. The sentence is manifestly unfit. Therefore, deference to the discretion of the trial judge is not appropriate. I would allow the appeal and set aside the sentence.
38I wish to make three additional points so that too much is not read into my decision.
39First, I should not be taken as suggesting that conditional sentences are incapable of achieving meaningful denunciation and deterrence. A conditional sentence is not a free pass, and it is not probation. It is a sentence of imprisonment, and its punitive effect should not be understated: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 29, 41; R. v. T.H., 2024 BCCA 123, at paras. 60-62. Although a conditional sentence will be served in the community if the offender is fully compliant with the conditions imposed, a lengthy, precarious period of presumptive incarceration while subject to punitive conditions such as house arrest does not lack deterrence or denunciation. As the Supreme Court of Canada recognized in R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 35, “depending on the severity of the conditions imposed, a conditional sentence may be reasonable in circumstances where deterrence and denunciation are paramount considerations.” This remains true for child sexual offences post-Friesen: see R. v. Faroughi, 2024 ONCA 178, 171 O.R. (3d) 81, at paras. 72-73.
40Having said this, by their character, conditional sentences are generally less punitive than institutional incarceration, and this will mute their deterrent and denunciatory impact: Proulx, at paras. 42-44, 102. Provided the facts of the case support a compromise favouring restorative benefits, a conditional sentence may nonetheless be capable of satisfying the principles of sentencing.
41Second and relatedly, I would caution against putting too much weight on the observation made in R. v. M.M., 2022 ONCA 441, at para. 16, that in child sexual abuse cases, the availability of conditional sentences “must be limited to exceptional circumstances that render incarceration inappropriate”. Sentencing is a highly individual exercise. To recognize this and protect sentencing discretion, Brown and Martin JJ. cautioned in R. v. Parranto, 2021 SCC 46, [2021] 3 S.C.R. 366, at para. 40, that “it is inappropriate for appellate courts to ‘artificially constrain sentencing judges’ ability to impose a proportionate sentence’ by requiring ‘exceptional circumstances’ when departing from a range”: citing R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, at paras. 111-12. I agree with Tulloch C.J.O. that the reference to “exceptional circumstances” in M.M. could not have been intended to depart from this direction and must be understood as shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate: R. v. Pike, 2024 ONCA 608, 173 O.R. (3d) 241, at paras. 180-82. It will not always be an error to impose a conditional sentence for child sexual offences. Nor is there a presumption that conditional sentences are inappropriate for these offences: Proulx, at paras. 80-83; Pike, at para. 181.
42Third, I do not want to be taken as discouraging judges from employing the principle of restraint to limit sentences for compelling, compassionate reasons relating to the destructive consequences a harsher sentence would have. I note in this regard that the entire Canadian criminal law itself is a “system of values”: Friesen, at para. 105. The sentencing principle of denunciation is the sword that “condemns the offender ‘for encroaching on our society’s basic code of values’”: Friesen, at para. 105, citing R. v. M. (C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at para. 81. In my view, restraint in imposing criminal punishment to prevent the unnecessary damage a harsher sanction may create is part of that basic code, and it too can affirm our system of values.
43Therefore, the issue before us is whether this conditional sentence is manifestly unfit in the circumstances. For the reasons provided, I am persuaded that it is, hence my decision to allow the appeal and set it aside. I would join my colleague in substituting a three-year sentence.
“David M. Paciocco J.A.”
Released: July 29, 2026 “B.W.M.”
Footnotes
- This appeal is subject to a publication ban pursuant to s. 486.4 of the Criminal Code, R.S.C. 1985, c. C-46.