WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
J.W.
Before: Justice Cecile Applegate
Heard on: June 27, September 26 and October 5, 2016
Reasons for Sentencing released on: October 5, 2016
Counsel:
- K. McCleave, counsel for the Crown
- K. Jokinen, counsel for the defendant J.W.
APPLEGATE J.:
Introduction
1J.W. (born in 1976) is the stepfather of H.W. (born in 1999). He has been a parent to her since she was four years old. She considers him her father and the two share a deep bond. J.W. is married to H.W.'s mother. In addition to H.W., they have three other children (born in 2006, 2009 and 2014).
2On October 17, 2015, H.W. disclosed to her mother that she had been sexually assaulted by J.W. In particular, there were four incidents of sexual assault:
(a) the first occurred when H.W. asked J.W. how sex worked. He showed her diagrams then took her to the basement bedroom where he eventually pulled her pants down and began touching her vaginal area over top of her underwear. There was no digital penetration at this time. H.W. did not tell anyone as she was confused and scared;
(b) The next incident occurred sometime in July 2015 while the parties were watching a movie on the couch. J.W. took H.W.'s pyjama pants off and put his hands in her underwear digitally penetrating her vagina. H.W. tried to move her leg but J.W. kept doing it. She pulled her pants up and he did it again;
(c) Sometime in August 2015, while driving to their cottage, H.W. raised the topic of sex with J.W. He shared sexual secrets regarding past girlfriends and asked her not to tell her mom. While H.W. was undressing at the cottage, J.W. told her she had a nice butt. He asked her to bend over so he could see it and she said no. He tried to pull her pants down but she pulled them up. Eventually he took pictures of her bare bottom - all of which were immediately deleted. Later that night, J.W. slept near H.W. and pulled her closer to him saying that this was normal. At that time, he digitally penetrated her again. On this occasion, it hurt more because it was a bit harder. Although J.W. did not recollect H.W. resisting, H.W. tried to push his hand away, but he did it anyway. When it was over, she pulled her pants up and went to the far side of the bed; and
(d) On a separate occasion, he touched her breasts by sliding his hand under her top.
3H.W. disclosed these allegations to her mother during an argument about why she had been acting out recently. Her mother confronted J.W. who initially denied it but very quickly admitted it. They went to H.W.'s room where J.W. immediately apologized, told H.W. that this was not her fault and that he was very proud of her for being brave enough to tell her mother. J.W. called his therapist and the CAS. He eventually turned himself in to the Barrie Police Service where he was charged with the offences before the court and released on a promise to appear.
4During the time frame of the allegations, H.W. was 13-15 years old and J.W. was 36-38 years old. Pursuant to section 150.1 of the Criminal Code of Canada, H.W. was not in a position to consent as J.W. was more than five years older than her and was in a position of trust over her.
Applicable Penalty
5On June 27, 2016, J.W. pled guilty to sexual assault contrary to section 271 of the Criminal Code of Canada. The Crown elected to proceed by way of summary conviction. As of July 17, 2015, the minimum punishment where the victim is less than 16 years of age is a period of imprisonment for 6 months and the maximum punishment is a term of imprisonment of two years less 1 day. Prior to that time, the minimum penalty was 90 days jail and the maximum penalty was 18 months jail. This offence spans from 2013 to August of 2015 with some specific allegations occurring in August of 2015.
6Ms. Jokinen relies on s. 11(i) of the Charter of Rights and Freedoms which states that "any person charged with an offence has the right if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment". She relies on the decision of R. v. Mehanmal, [2012] O.J. No. 5164 (C.J.), where the court decided that a conditional sentence was available despite the fact that the conditional sentence regime was not in effect at the time the offence was committed, later came into effect, then was no longer available at the time of conviction and sentencing. In particular, Justice Hearn found:
(a) Section 11(i) is to be interpreted liberally (para 75);
(b) The interpretation to be given to section 11(i) is "that an accused is entitled to the benefit of effectively the 'lesser punishment' since the time of the commission of the offence" (para 76).
7In addition, Ms. Jokinen has provided 2 other cases where courts have found that, in situations where the offence date straddles an amendment that becomes unfavourable to the accused, the accused is entitled to the benefit of the lesser punishment pursuant to s. 11(i) of the Charter: see R. v. J.W.H., [2012] O.J. No. 3775 (S.C.J.) at para 227-230, R. v. W.R.G., [2011] B.C.J. No. 2270 (Prov Ct) at para 3 where the Crown appeared to concede this point.
8Ms. McCleave argues that s. 11(i) of the Charter applies only when the punishment has been varied between the time of the commission of the offence and the time of sentencing. She relies on the reasoning of the Saskatchewan Court of Appeal in R. v. V.I.C., [2005] S.J. No. 469 and submits, as they decided, that "this was not a case of application of the law to an offence which occurred before the legislation came into effect, but of application of the law to an offence which was not complete, and therefore did not occur, until a date on which the legislation was in effect".
9In my view, for the reasons set out in R. v. Mehanmal, supra and R. v. J.W.H. and bearing in mind the right protected by s. 11(i) of the Charter, where the offence date straddles the amendment date, J.W. is entitled to have the benefit of the lesser punishment at the commencement of the timeframe covered by the count he pled guilty to. Therefore, the applicable penalty in this matter is a mandatory minimum period of incarceration of 90 days and a maximum period of incarceration of 18 months.
Position of the Parties
10Ms. Jokinen, on behalf of J.W., submits that a sentence of 6 months jail appropriately addresses the aggravating and mitigating factors in this case. She concedes the aggravating features include a breach of trust, multiple acts which involved digital penetration taking place over a period of time in the family home or cottage and the impact on H.W. and her family. She reminds me of numerous mitigating factors including J.W.'s guilty plea, his acceptance of responsibility from the moment H.W. disclosed, a high level of remorse, significant counselling and a successful work history including being the main income earner for the family.
11Ms. McCleave, on behalf of the Crown, submits that the appropriate range of sentencing is 12-15 months custody taking into account the mitigating and aggravating factors and the state of the law in 2016. She points out the aggravating factors include J.W.'s position of trust over H.W. as her father, the harm inherent in the crime itself, the harm caused to the broader community and the damage done to H.W. and her family. She acknowledges J.W.'s difficult upbringing and the subsequent counselling he has taken, but cautions that we have no real answers as to what J.W.'s triggers are or were that resulted in his not resisting his impulses particularly vis-à-vis H.W.
Analysis and Sentence
Background of J.W.
12J.W. met H.W.'s mother 12 years ago when H.W. was 4 years old. J.W. has always treated H.W. as his own daughter.
13J.W. was one of 11 children raised in a very unconventional and dysfunctional home. His father, a self-proclaimed preacher, was an aggressive and abusive man. Over time, his father took on two wives and opened his home as a "house of refuge" for people living on the street. His mother has been described as a martyr and a victim who never took a stand against her husband. This commune-style living with as many as 30 strangers being around at one time resulted in chaos, extreme poverty and a lack of structure for J.W. and his siblings. J.W. was often left to fend for himself. During the course of his upbringing, he was subjected to physical, spiritual and emotional abuse. He also witnessed sexual abuse in the home. When J.W. was in grade 10, his father pulled him and his siblings out of school believing it was a negative influence on them.
14J.W. worked very hard to distance himself from this upbringing - he was embarrassed, insecure, unable to trust people and feeling unvalued. In time, he became very successful in the business world. Over the years, he has been very kind and generous with his time and money, often donating to the less fortunate including his family.
15Through counselling with Faye Mathie of Daystar Counselling and Sam DaSilva of the Renewal Christian Counselling, J.W. gained some insight into his upbringing and the impact that it had on him as an adult. J.W. always avoided confrontations, never said no to anyone and had no idea about how to establish healthy boundaries. Eventually, a change in the sexual intimacy in his marriage led to J.W. watching pornography and engaging in sexual encounters outside of the marriage, and finally, the sexual assaults upon H.W.
16The character reference letters filed on behalf of J.W. speak very highly of J.W. describing him as honest, conscientious, caring, generous, hard-working and, most importantly, remorseful for what he has done. It is clear that J.W. has disclosed the nature of his crime to the persons writing these letters, all of whom have expressed shock and disbelief.
17J.W. submitted an insightful and painfully honest letter on his behalf. It included a realization of reaching such a place of little or no self-worth that he turned to H.W., who had always shown him unconditional love and kindness, to fill his pain. It is clear that he has been working very hard to resolve the emotional, spiritual and relationship issues and understands that he has much more work to do in order to repair the damage he caused and rebuild the trust he breached. He is very much aware of the pain and suffering that he has caused H.W., his other children, his wife and her family.
Victim Impact
18H.W.'s mother describes October 17, 2015, the day H.W. disclosed to her what J.W. had been doing, the hardest and most shocking day of her life. She was devastated, confused, sad, angry and shocked. Her world had been turned upside down. She was left to focus on taking care of her children and her home while J.W. was removed from the home. She confirmed that while J.W. continued to support the family financially, his physical presence in the home was extremely missed.
19It is clear that, after much personal counselling and upon seeing the steps that J.W. has taken himself and his remorse, repentance and transformation, H.W.'s mother now has renewed faith in terms of rebuilding the relationship and their family.
20Perhaps, the most powerful and poignant letter submitted, is the one written by H.W. herself. It combines the childlike qualities of a 16-year-old with the insights, faith and forgiveness of someone well beyond her years. It is evident that the bond between H.W. and J.W. is a powerful one - she describes him as her true father in all respects. It is also clear that the sexual assaults committed by J.W. upon her were traumatic and life-altering. At the time of the offences, she described being in complete shock, not knowing what was going on, feeling trapped in the moment, not knowing what to do or how to talk about it. As with many victims, she thought that this might have been her fault and questioned her actions around J.W.
21H.W. confirms that, after she disclosed the sexual assaults to her mother in October 2015, J.W. immediately told her that he was so sorry for what he had done and that he was proud of her for telling. H.W. went to counselling as a result of J.W.'s actions. She is aware that what he did was wrong, that it changed her and her family completely and that they all suffered consequences because of it. She is also clear, however, that she and her family have become closer with God, that she forgives J.W. for everything that happened, that she loves him and needs him back as her dad again.
Mitigating Factors
22There are several mitigating factors including the following:
(a) J.W. is a first offender and has no previous criminal record;
(b) J.W. has pleaded guilty at a relatively early stage. This is an acceptance of responsibility and a sign of remorse. From the beginning, it has always been his plan to plead guilty thereby saving H.W. and his wife from enduring a painful trial. In my view, this is a very significant mitigating factor;
(c) J.W. has expressed genuine and profound remorse in numerous ways - directly to H.W. the day she disclosed, to friends and family, in counselling sessions and in court by way of a letter;
(d) J.W. has strong support from his family and in the community. This is a testament to his character;
(e) J.W. has otherwise good character and has been able to gain insight into his unconventional upbringing, the resulting impact on him emotionally and spiritually, and continues to work at overcoming these deficits. In this regard, J.W. has attended numerous counselling sessions individually and with his wife and has expressed his intention to continue to work on improving himself in both individual and family counselling to right the wrongs he has committed; and
(f) J.W. appears to have always been a contributing member of society through his hard work and charity. As a result of these charges, he has suffered some collateral consequences such as having to wrap up his current business which included laying off three employees.
Aggravating Factors
23The mitigating factors must be balanced against several aggravating factors including:
(a) the age of H.W. – 13-15 years old at the time of the allegations;
(b) the position of trust along with the large age difference resulted in a significant power imbalance and H.W. being particularly vulnerable;
(c) the significant and heart-wrenching impact of J.W.'s conduct on H.W., his wife, their family and, ultimately, society;
(d) the sexual activity which involved digital penetration on at least two occasions and a total of four sexual assaults taking place over a period of time. In addition, the sexualisation of H.W. by J.W. ignoring that she was his child in order to satisfy his sexual needs and the fact that this conduct repeated itself several times; and
(e) as briefly alluded to by H.W. in her victim impact statement, there is a concern regarding future impact on her personally and in any subsequent relationships. As cited by the Alberta Court of Appeal at para 62 of R. v. Hajar, 2016 ABCA 222, it is well recognized that, in many instances, victims of child abuse have their childhood stolen from them:
"Children and adolescents who are exposed to sexual experiences of one sort or another with an adult have been cheated out of their opportunity to experience sexual contact in a situation of genuine choice in the context of an equal power relationship. They may also have been fooled into making faulty self-attributions of consent. In addition, there is always injury in terms of the affront to human dignity arising from having bodily and psychological integrity infringed without giving informed consent independent of any resultant psychological symptoms, level of resilience or reports of psychological harm: Sonja Grover, On Power Differentials and Children's Rights: A Dissonance Interpretation of the rind and Associates (1998) Study on Child Sexual Abuse (2003); Ethical Human Science and Services 21 at 29."
Potential consequences of child sexual abuse have also been confirmed by the Ontario Court of Appeal in R. v. Woodward, 2011 ONCA 610:
"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…"
General Range of Sentencing
24The Crown argues that the sentencing range for this type of offence is 10 to 18 months in jail and relies on a number of cases to support this position:
(a) R. v. Barua, 2014 ONCA 34 which involved an eight-year-old boy and the husband of his babysitter. The appellant pulled the boy's pants down, kissed him, touched and licked his penis and "humped him". The Court of Appeal found that the trial judge "correctly concluded that a sexual assault on a young victim in the circumstances of this case would normally attract a medium to high range reformatory sentence even for a first offender" and upheld the 10 month jail sentence;
(b) R. v. Manjra, 2009 ONCA 485 involving a seven-year-old girl and her adult next-door neighbour. The appellant pulled down the girl's pants and underwear and licked her privates. A sentence of 17 months jail was upheld with the Court of Appeal indicating that this was within the range for this offence, even for a first offender;
(c) R. v. E.Y., [2003] O.J. No. 3027 (C.A.) upholding the trial judge's imposition of an 18 month sentence in R. v. E.Y., [2002] O.J. No. 673 (C.J.). The accused kissed and fondled his stepdaughter under her clothes a few times a week from age 7 or 8 to age 14. Justice Kenkel found that "for the sexual molestation of a young person not involving intercourse, by a person in a position of trust and authority, the cases do seem to suggest a sentence in the upper reformatory range of 18 to 24 months, although unusual circumstances on occasion may reduce the sentence to at or below the 12 month level" (para 25);
(d) R. v. Bachewich, [2007] A.J. No. 629 (C.A.) involving a nine-year-old victim who slept over at her friend's house and, while there, her friend's father stroked her vagina with his hand under her pyjamas and panties. The Court of Appeal upheld a sentence of 12 months. In so doing, they commented that "there is a considerable range of sentence for sexual assault of a child short of penetration. The ultimate sentence depends not only on whether it is a single incident but also upon other aggravating and mitigating factors" and "a guilty plea is a significant mitigating factor" (para 13);
(e) R. v. S.G.T., [2011] S.J. No. 14 (C.A.) where a father was convicted of sexually assaulting his 13-year-old daughter by fondling her vagina on three occasions. The Court of Appeal upheld an 18 month jail sentence noting that "it was required in order to promote a sense of responsibility in the offender" particularly where there was "an absence of the guilty plea, and the fact that the victim had to testify twice, at the preliminary hearing and at the trial" (para 97); and
(f) R. v. J.R., [2012] S.J. No. 685 (Prov. Ct) - the accused was convicted of sexual assault on his 14-year-old daughter. The offences took place in the family home and consisted of touching the victim's vagina a number of times over a few days. None of the assaults involved digital penetration. A sentence of 14 months jail was imposed.
25The defence relies on the following cases in support of their position for a 6 month jail sentence:
(a) R. v. Cordeiro, [2006] O.J. No. 2722 (C.J.) involving a six-year-old boy and the adult boyfriend of his mother. The accused fondled the boy's genitals and placed his penis on the boy's buttocks approximately twice weekly over a six week period. There was no penetration. The trial judge, relying on a number of cases, indicated "acts of fondling, inappropriate touching, cunnilingus and digital penetration, have invariably resulted in sentences ranging from the lower reformatory range to the high reformatory range" (para 4). A sentence of six months jail was imposed.
(b) R. v. L.J.D., [2008] O.J. No. 993 (S.C.J.) involving a nine-year-old child and her mother's 52 year old common law partner. The accused and the child sat on the couch watching pornographic movies and, while watching these movies, he touched her breasts and vaginal area, both over and under her clothing. The propriety of the imposition of the conditional sentence was the subject matter of the appeal. In reviewing the Court of Appeal judgments, Justice Durno found that a conditional sentence was inconsistent with the purposes and principles of sentencing. In particular, he cited R. v. G.L., indicating that the Court of Appeal has "repeatedly stressed both the serious nature of sexual abuse against children, and the importance of sentencing sexual offenders with the principles of denunciation and deterrence in mind". In that case, a sentence of 10 months was imposed for an assault that occurred over 18 months which included kissing, the touching of her breast and vagina over and under her clothing, and digital penetration. In R. v. L.J.D, supra, Justice Durno found that the equivalent of a six month jail sentence was within the appropriate range;
(c) R. v. R.F., 2010 ONCJ 394 - over a one year time frame, a stepfather undressed himself and his nine-year-old stepdaughter, put his mouth on her chest, subjected her to digital penetration and ejaculated on her leg. After finding him guilty of two counts of sexual assault, Justice Feldman sentenced him to 90 days intermittent on the first count and a consecutive 18 month conditional sentence on the second count.
(d) R. v. Paterson, [2010] O.J. No. 5108 (S.C.J.) - the accused was sentenced to six months imprisonment for having engaged in a sexual relationship with a 16-year-old boy placed in her foster care;
(e) R. v. D.G., 2011 ONCJ 116 involved a father who sexually assaulted his 17-year-old daughter by having her lie down on his bed, rubbing her back, touching her breasts and digitally penetrating her vagina. In imposing a six month jail sentence, the court, relying on appellate decisions, found that "where an offender is in a position of trust or authority, his moral blameworthiness is deemed to be elevated" (para 18) and "while all sexual assault against children are serious, penetration is inherently violative and intrusive, and therefore particularly aggravating." (para 24);
(f) R. v. D.V., [2013] O.J. No. 1679 (S.C.J.) involved a 15 year old girl and a 29-year-old uncle by marriage. The accused sexually assaulted the girl by fondling her vaginal area and breasts, removing her pyjama bottoms and underpants and digitally penetrating her. In addition, he pulled his own track pants down and placed her hand on his penis to stimulate himself to ejaculation. The court, sitting as an appeal court, ruled that the 90 day intermittent sentence imposed by the lower court did not properly reflect the seriousness of the case and was demonstrably unfit as it fell below the appropriate range. The court imposed a sentence of six months.
Legal Principles
26In 2008, Parliament raised the age of consent from 14 to 16 years: Tackling Violent Crime Act, S.C. 2008, c. 6, s. 54. The Alberta Court of Appeal in R. v. Hajar, supra, recently analyzed Parliament's objectives in raising the age of consent to 16 years. These included:
(1) establishing a bright line age below which children would be off-limits to adults for all sexual activity (para 37);
(2) given the inherent power imbalance between adults and children, this will better protect 14 and 15-year-olds from undue influence, persuasion and manipulation by adults to engage in sexual activity. "It demonstrates that children under 16 do not possess the psychological maturity and decision-making competence to agree to sexual activity with those outside the close-in-age exceptions. And most especially, reveals how the power imbalance between children and those in the proscribed age groups undermines true consent" (para 40);
(3) there is inherent harm to children and society flowing from premature sexual activity (para 41);
(4) this legislation brings Canada in line with the international community and its commitment to protect children against sexual abuse and exploitation (para 42); and
(5) "all members of our society, especially children, should be equally free to live and circulate in society without being subjected to sexual abuse" (para 44).
27In addition to changing the age of consent, Parliament has also seen fit to tighten the sentencing regime as it applies to sexual offences committed against children. These measures have included removing the availability of conditional sentences as a sentencing option and legislating mandatory minimum jail sentences – 90 days incarceration in 2012 later increased to 6 months incarceration in 2015 where the Crown elects summarily.
28Section 718 of the Criminal Code states that the fundamental purpose of sentencing includes (a) the denunciation of unlawful conduct, (b) the deterrence of the offender and other individuals from committing offences, (c) separating the offender from society where necessary, (d) assisting in the rehabilitation of the offender, (e) providing reparation for harm done to the victims or the community and (f) promoting a sense of responsibility in offenders and an acknowledgment of the harm done to victims or the community.
29Section 718.1 states the sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Both the gravity of the offence committed by J.W. and his personal responsibility are high in this case. H.W., by virtue of her age, the age difference between the parties and the position of trust J.W. held was particularly vulnerable.
30Section 718.01 provides that, when the court imposes a sentence for an offence involving the abuse of a person under age 18, it shall give primary consideration to the objectives of denunciation and deterrence. H.W. was 13-15 years old during these assaults. As stated by Justice Moldaver in R. v. D.D., "adult sexual predators who would put the lives of innocent children at risk to satisfy their deviant sexual needs must know that they will pay a heavy price… We as a society owe it to our children to protect them from the harm caused by offenders… Our children are at once our most valued and our most vulnerable assets." (paras 34-35).
31In addition, s. 718.2 outlines the mitigating and aggravating factors that may increase or reduce a sentence in the appropriate circumstances. In particular, s. 718.2(a)(ii.1) and s. 718.2(a)(iii) – the abuse of a person under the age of 18 and abusing a position of trust or authority must be treated as aggravating considerations in this case. As stated by Justice Kenkel in R. v. E.Y., supra, "there is a high degree of responsibility and moral blameworthiness in a step-parent who abuses the position of trust and authority for sexual gratification. Both the abuse of children and the abuse of a position of trust have been set by statute as factors which courts must take into account as increasing sentencing: s. 718.2 C.C.C." (para 50). Section 718.2 also addresses the principles of parity, totality and restraint in sentencing.
32Sentencing ranges are used mainly to ensure the parity of sentences, they reflect the principles and objectives of sentencing. Sentencing ranges are nothing more than summaries of the minimum and maximum sentences imposed in the past, which serve in any given case as guides for the application of all the relevant principles and objectives. However, they should not be considered "averages", let alone straightjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case": R. v. Lacasse, 2015 SCC 64 at para 57; R. v. D.D., supra at para 33.
33In considering the appropriate length of sentence, I am reminded that "the Court of Appeal has repeatedly instructed that an offender's first sentence of imprisonment should be as short as possible and tailored to that individual's particular circumstances": R. v. Champion, 2016 ONCJ 125 at para 56.
Conclusion
34Bearing all of these sentencing principles in mind, when I consider the circumstances of the offence, its seriousness, the circumstances of J.W., the aggravating and mitigating factors that exist in this case, I sentence J.W. to a jail sentence of eight months. In my view, this sentence appropriately addresses the issues of denunciation, specific deterrence and general deterrence.
35While in custody, J.W. is prohibited from contacting H.W. directly or indirectly except with her written revocable consent pursuant to section 743.21 of the Criminal Code of Canada.
36That sentence will be followed by a period of probation for 2 years with terms addressing no contact, non-attendance and counselling.
37Lastly, there will be a DNA order, a SOIRA order for 10 years and s. 110 weapons prohibition order for 5 years. I have considered, but decline to make a s. 161 order given that J.W. is a first offender, the offence involved one individual closely related to him who has expressed no safety concerns, the strong family support, J.W.'s young family and the significant rehabilitative steps taken by J.W. to date – all of which suggest that there is little or no need to implement the protective measures imposed by s. 161.
Released: October 5, 2016
Justice Cecile Applegate
