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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 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.

ONTARIO COURT OF JUSTICE

CITATION: R. v. Bernardon, 2021 ONCJ 438

DATE: 2021 08 18

COURT FILE No.: Windsor 20-5420

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DYLAN BERNARDON

Before Justice C.A. PARRY

Heard on January 20, March 22, June 30, and August 19, 2021

Reasons for Judgment released on August 18, 2021

Forward, J counsel for the Crown

Miller, F counsel for the accused Bernardon

PARRY J.:

I. INTRODUCTION AND A BRIEF SUMMARY OF THE FACTS

1This judgment concerns the sentencing of Dylan Bernardon who pleaded guilty to the offence of Sexual Interference, contrary to section 151 of the Criminal Code.

2Mr. Bernardon’s victim was 14 years old during the timeframe of the offence. Mr. Bernardon was 19. They were approximately 5 years and 4 months apart in age. The time frame of the offence spanned from February 1, 2019 to August 15, 2019. At the time, his victim identified as female and answered to the name, B.N. The charge to which Mr. Bernardon has pleaded guilty utilizes the victim’s name as it was at the time of the offence. Since the offence, the victim now identifies as male and answers to the name, S.N. Having consulted with the Crown on the issue, I will from this point onwards refer to the victim using his current name and gender pronouns.

3An agreed statement of facts was tendered by the parties. It is attached as Appendix “A” to this judgement. The Crown also filed a brief, entitled Crown Sentencing Materials, which contains the Victim Impact Statement and a document entitled, “External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces”, authored by the Honourable Marie Deschamps. In addition, the Crown tendered evidence at a Gardiner hearing, which included the evidence of Mr. Bernardon’s superior officer in the Sea Cadets and the Sea Cadet Code of Conduct.

4A brief summary of some of the pertinent facts will suffice at this juncture.

5Mr. Bernardon had been a Sea Cadet at the Royal Canadian Sea Cadet Corp in Windsor. After aging out of the program, he took a brief hiatus before returning as an Officer-In-Training. S.N. was a sea cadet while Mr. Bernardon was an officer in training. Though Mr. Bernardon and S.N. were in different units in the regiment, he had occasion to meet him in the Sea Cadets. He became flirtatious with him and ultimately sent him text messages. The sending of these extra-curricular text messages violated the Code of Conduct. Accordingly, Mr. Bernardon was expelled from the Sea Cadets in the beginning of January 2019. The evidence did not elaborate upon the content of the text messages.

6About three weeks after Mr. Bernardon’s expulsion from the Sea Cadets, he and S.N. commenced a sexual relationship, which lasted from February until mid-August. During that time frame, they engaged sexual intercourse approximately 20 times. S.N. consented to that intercourse; however, due to his age and due to the fact that Mr. Bernardon was slightly more that five years older than him, that consent could not render the sexual activity lawful.

7The sexual activity at times involved “rough” sex, including choking and slapping. Also, Mr. Bernardon appears to have fetishized S.N.’s age, asking him at times to talk in a childish voice and to verbalize that he was 14 years old.

8The relationship ended when S.N. moved from his parent’s home to his sister’s home. Following the move, his sister forbid contact with S.N.

9The Victim Impact Statement discloses that S.N. has suffered and continues to suffer profoundly from his involvement with Mr. Bernardon. S.N. endured a significant decline in his mental health in the aftermath of his relationship with Mr. Bernardon, culminating in multiple hospitalizations and suicidal ideations. His involvement with Mr. Bernardon also eroded his sense of safety.

II. MR. BERNARDON’S CIRCUMSTANCES

10Mr. Bernardon comes before the court without a criminal record. He is now 21 years old. He turns 22 on August 26^th. He has a twin brother and a 28-year-old half-brother. He comes from a loving and supportive family that provided him a full and enriching upbringing.

11Historically, Mr. Bernardon had been open with his parents about previous dating relationships, which had been with age-appropriate partners. Unfortunately, Mr. Bernardon misled his parents about S.N.’s age. Had they been aware of the true age discrepancy between Mr. Bernardon and S.N., they would have intervened. Since the offence, Mr. Bernardon has partaken in positive, age-appropriate dating experiences. He has also continued to maintain healthy friendships with a small circle of lifelong friends.

12Mr. Bernardon is an above average student and keenly involved in extra-curricular activities. This spring, he completed an Honours Bachelor of Arts Degree, where he majored in History and Philosophy. Though he had hoped to pursue a military career, his conviction for Sexual Interference has thwarted that aspiration.

13Mr. Bernardon has taken full and unqualified responsibility for his actions and has expressed a profound and genuine remorse for his offending behaviour.

14Numerous pro-social adults with lifelong relationships with Mr. Bernardon have provided character references for him. They describe a kind, hardworking, responsible, and generous young man; they note his past involvement in community service; and they note his sincere remorse for his offending behaviour. They also unanimously express shock at their discovery of his offending conduct.

15The pre-sentence report is a positive one. After confirming much of what I have just summarized, its author notes that Mr. Bernardon is a suitable candidate for community supervision.

III. THE CROWN’S POSITION ON SENTENCE

16The Crown suggests a sentence in the range of 2 to 3 years would be appropriate.

17In doing so, the Crown highlights four aggravating factors:

(1) the offence involved a victimization of a child, a factor which s. 718.2(a)(i.1) requires the court to consider as an aggravating factor;

(2) the offence had a profound impact upon the victim, which s. 718.2(a)(iii.1) requires the court to consider as an aggravating factor;

(3) the offence took place over 6 ½ months; and

(4) degree of the intrusiveness of the sexual activity – in particular, the fact that offence involved 20 acts of sexual intercourse that involved rough sex that fetishized S.N.’s youthfulness.

18The Crown places great reliance upon what has become the leading case on the sentencing those who commit sexual offences against children, R. v. Friesen.¹ The Crown stresses that despite Mr. Bernardon’s youthfulness, general deterrence and denunciation remain the paramount sentencing principles. The Crown further notes that Friesen stands for the proposition that 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.” However, given Mr. Bernardon’s youthfulness, lack of record, confession to police, guilty plea, deep remorse, otherwise good character, and excellent prospects for rehabilitation, the Crown agrees that a sentence in the realm of 2 years is appropriate. In making this submission, the Crown agrees that either a high reformatory sentence or a low penitentiary sentence would constitute a proportionate and reasonable sentence.

19The Crown vehemently opposes the imposition of a conditional sentence. While conceding that a conditional sentence is no longer barred by statute, the Crown argues that a conditional sentence would utterly fail to achieve the principles of general deterrence and denunciation, given the aggravating factors present in this case.

IV. THE DEFENCE POSITION

20Counsel for Mr. Bernardon argues for a conditional sentence of approximately 2 years less one day in duration.

21While acknowledging the aggravating factors highlighted by the Crown, the defence places greater emphasis on a number of mitigating factors,

22In particular, the defence notes the following mitigating factors:

(1) Mr. Bernardon was a youthful first offender;

(2) Mr. Bernardon was only four months removed from being able to have lawfully engaged in a sexual relationship with S.N;

(3) Mr. Bernardon was cooperative with police, immediately confessed, has pleaded guilty, and is extremely remorseful;

(4) Mr. Bernardon will lose his opportunity to have a military career as a result of his offending conduct;

(5) Mr. Bernardon has lived an otherwise exemplary life and the offence appears out of character for Mr. Bernardon;

(6) Mr. Bernardon comes from a prosocial and supportive family;

(7) Mr. Bernardon has healthy and supportive friendships;

(8) Mr. Bernardon has achieved a good education;

(9) Mr. Bernardon is unlikely to reoffend; and

(10) Mr. Bernardon is likely to live a productive and pro-social life.

23The defence submits that a sentence of less than 2 years is appropriate. The defence also submits that the principles of deterrence and denunciation can be met by the imposition of a conditional sentence – and that Mr. Bernardon would not endanger the safety of the community when serving a conditional sentence.

V. DISCUSSION AND DISPOSITION

24General deterrence and denunciation are undoubtedly the primary sentencing principles that must govern the determination of a proportionate sentence in this case.²

25In Friesen the court declined to delineate a national starting point or sentencing range for sexual offences against children. Doing so would deprive sentencing courts of the ability to determine a proportionate sentence based upon the individual factors present in each case before them. However, the court noted that some historical sentencing precedents and some current sentencing precedents in some regions of the country failed to adequately reflect society’s current understanding of the profound harm that sexual violence against children causes – thereby failing to satisfy the principles of denunciation and general deterrence. The court further observed that mid-single-digit penitentiary sentences ought to be considered normal for adults who commit sexual violence against children. In doing so, the court noted with approval the leading sentencing jurisprudence from Ontario, saying, “We would also commend the decisions of the Ontario Court of Appeal in D. (D.), Woodward, and S. (J.) as examples of appropriate appellate guidance, with the caution that the 2015 statutory amendments were not yet in effect at the time of the offences in these cases.”³

26In the D.(D.) decision, which Friesen commended, Moldaver J. stated:

To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double-digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. ⁴

27Friesen also provided additional guiding principles for sentencing courts. First, the higher the offender's risk to reoffend, the more the court needs to emphasize the sentencing objective of separating the offender from society to protect vulnerable children from wrongful exploitation and harm. Second, an offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child. Any breach of trust is likely to increase the harm to the victim and thus the gravity of the offence, and it also increases the offender's degree of responsibility. Third, sexual violence against children that is committed on multiple occasions and for longer periods of time should attract significantly higher sentences that reflect the full cumulative gravity of the crime and the offender's increased degree of responsibility. Fourth, the age of the victim is also a significant aggravating factor because children who are particularly young are even more vulnerable to sexual violence. The moral blameworthiness of the offender is enhanced in such cases. Fifth, defining a sentencing range based on the specific type of sexual activity at issue poses several dangers. In particular, courts must be careful to avoid the following errors: attributing intrinsic significance to the occurrence or non-occurrence of sexual acts based on traditional notions of sexual propriety; assuming that there is correlation between the type of physical act and the harm to the child; failing to recognize the wrongfulness of sexual violence in cases where the degree of physical interference is less pronounced; and understanding the degree of physical interference factor in terms of a type of hierarchy of physical acts. Sixth, a child's participation is not a mitigating factor, nor should it be a legally relevant consideration at sentencing. In particular, a child's non-resistance should not be equated to "de facto consent"; a victim's participation should not distract the court from the harm that the victim suffers as a result of sexual violence; a breach of trust or grooming that led to the victim's participation is an aggravating factor; and, adults always have a responsibility to refrain from engaging in sexual violence towards children.

28In determining a proportionate sentence, the court must, of course, also consider the circumstances of the offender. Generally speaking, in cases involving youthful first offenders with no criminal records, courts will place an emphasis upon individual deterrence and, where necessary, the offender’s rehabilitation. General deterrence and denunciation will generally not play a prominent role in the sentencing of youthful offenders. However, general deterrence and denunciation gain prominence even in cases of youthful first offenders, where the offence involves serious crimes of violence, like sexual assault. “The emphasis to be placed on denunciation and to a lesser extent general deterrence, grows with the seriousness of the particular circumstances surrounding the sexual assault for which an accused, even a young accused, is being sentenced.”⁵.

29The offender’s remorse, acceptance of responsibility, and relative risk of re-offending are also relevant considerations when considering the degree to which the court should hold the offender morally accountable for their conduct. A guilty plea constitutes an expression of remorse and an acceptance of responsibility. It also relieves the victim of the burden of testifying and communicates to the victim an acknowledgement of the harm done. A guilty plea also provides some evidence of the offender’s capacity for rehabilitation. In sum, the offender’s remorse, guilty plea, and low risk of reoffending all constitute mitigating factors. ⁶

30With regard to the question of the availability of a conditional sentence, both parties agree that a conditional sentence is at least theoretically available for the offence of sexual interference, due to a recent Court of Appeal ruling which struck down a statutory provision that made the sentence unavailable.⁷ However, the Court of Appeal has also repeatedly indicated that a conditional sentence ought rarely be imposed in cases involving the sexual abuse of children.⁸

31Turing to the case at hand, I agree with the Crown that the offending conduct must be considered very serious in light of the four aggravating factors highlighted by the Crown. The sexual exploitation of S.N. was an inherently violent offence that resulted in resulted in a profound psychological harm to a child victim. The offence took place over 6 ½ months and involved approximately twenty incidents of sexual intercourse, which included the fetishizing of S.N.’s age and the fetishizing of physical violence.

32I consider the offence to be very serious despite acknowledging that, had Mr. Bernardon and S.N. been four months closer in age, S.N.’s consent to this sexual activity could have provided Mr. Bernardon a defence to the charge. Others in Mr. Bernardon’s birth year could have lawfully engaged in the same conduct with a person in S.N.’s birth year. It seems quite the leap to go from no criminal liability in a case where the participants were four months closer in age to a mid-single digit penitentiary sentence – the norm, according to Friesen – in Mr. Bernardon’s case. Embracing such a categorical quantum leap would eschew individualized proportionality, would give inadequate weight to the mitigating factor of Mr. Bernardon’s youthfulness at the time of the offences, and would group Mr. Bernardon with offenders whose moral blameworthiness is higher because they have progressed further into adulthood and because the power imbalance between those older offenders and their victims was further exacerbated by a larger age gap than the one that existed in this case. In saying so, I recognize that the Court of Appeal for Ontario instructs me that the relative proximity in age between Mr. Bernardon and S.N. is not a mitigating factor.⁹ While a greater age gap may be an aggravating factor, the opposite is not true. While a relatively small age-gap may not in and of itself be a mitigating factor, there exists some support for the proposition that proximity to the close-in-age exception may nevertheless constitute a mitigating factor. A majority of a five member panel of the Alberta Court of Appeal indicated that “where adults fall just outside the close-in-age exception, this too will be a factor to be taken into account in sentencing.”¹⁰ However, that court noted that this factor will “generally be of lesser weight” than the aggravating factors present in the exploitation of children by adults. In any event, I remind myself that Mr. Bernardon was in the middle of his university education and S.N. was the age of someone in grade 9. The pre-sentence report reveals that Mr. Bernardon deceived his family about S.N.’s age. By deliberately misleading his family, Mr. Bernardon disclosed an awareness of that his conduct was at least morally wrong – yet he persisted. His offence was serious and his moral culpability for that offence were significant, just not as serious and not as significant if he committed the offence as a more mature adult.

33I agree with the parties that, in addition to the aggravating features in this case, there exist many mitigating features:

(1) Mr. Bernardon pleaded guilty. He has thus saved the victim of the anxiety and stress associated with testifying and the uncertainty inherent in a trial. He has also provided unequivocal validation of the complaint made against him. In addition, he has saved the administration of justice considerable court resources at a time in our history where those resources have been stretched thin.

(2) I accept that Mr. Bernardon is extremely remorseful for his conduct.

(3) The presentence report and letters of reference indicate that Mr. Bernardon comes from a supportive pro-social law-abiding family. He also has a pro-social and supportive network of friends.

(4) The offence appears to be out of character. In that regard, collateral sources report that Mr. Bernardon both historically and since the offence engaged in age-appropriate relationships.

(5) Mr. Bernardon has no prior criminal record.

(6) Mr. Bernardon has a good education and has obtained a university degree while this case has progressed through the judicial process

(7) Mr. Bernardon has lived an otherwise exemplary life and has otherwise provided positive contributions to his community.

(8) He has also complied with his release and not re-offended since being charged in the matter at hand.

(9) Mr. Bernardon presents as a suitable candidate for community supervision.

(10) Having regard to all of the mitigating factors listed above, I conclude that Mr. Bernardon’s prospects for rehabilitation are strong.

34Both parties provided me numerous cases to consider. Both acknowledged that none of the cases “fell on all fours” with the particular constellation of aggravating and mitigating factors in this case. In large part, the parties provided me with the cases to assist me with a proper understanding of the guiding principles. Attached as Appendix “B” to this judgment is a summary of some of the cases provided by the parties and reviewed by me.

35Of the cases provided to me, two appellate cases come closer to possessing the mix of aggravating and mitigating factors in Mr. Bernardon’s case than others. Both involve relatively youthful offenders.

36In R. v. Thurairajah¹¹, the offender was 19 years old at the time of the offence. The victim was 14. The offender was convicted after a trial of sexual assault. The victim became very drunk and passed out while drinking with the accused and two of his friends. The accused had unprotected sexual intercourse with her and then dumped her partially clad and unconscious into a snowbank under a tree. The accused then called her brother to pick her up. Her brother called 911 and the victim was taken to hospital. She was unresponsive and close to comatose; she was suffering from hypothermia and her condition was life threatening. The accused and the victim were both of Tamil descent, and the accused was aware that female victims of sexual assault are sometimes stigmatized in Tamil culture. The accused had no criminal record and the offence appeared to be out of character. He had strong family support. He had complied with strict terms of bail for three years before his sentencing at trial. The trial judge imposed a conditional sentence of 2 years less a day, with house arrest for the first nine months, a curfew for the next nine months, with no curfew or house arrest for the final six months, followed by six months' probation. The Crown appealed. The Court of Appeal concluded that the sentence was demonstrably unfit, failing to satisfy the principles of deterrence and denunciation. The court concluded that a fit sentence would have been a custodial sentence of 2 years less a day to 4 years. The aggravating features included (1) the age and vulnerability of the victim; (2) the respondent committed this crime in the presence of other members of the victim's peer group, no doubt adding to her long-term humiliation and the need for general deterrence; (3) the significant emotional harm done to the victim and potential long-term ostracization of the victim in her ethnic community, the risk of which was known to the respondent; and (4) the respondent's stunningly callous and highly life-threatening treatment of the helpless victim after the rape. Having regard to the offender’s youthfulness, his otherwise unblemished antecedents, his rehabilitative potential, the support of his family, his three years on a strict bail order, and the fact that he completed 16 months of the conditional sentence order, the court varied the sentence and imposed a 9 moth jail sentence plus six months of probation.

37Mr. Bernardon and Mr. Thurairajah’s cases are similar because they were similar ages when they sexually abused their 14-year-old victims. However, while Thurairajah contained certain aggravating factors in common with Mr. Bernardon’s case, it also contained some not present in Mr. Bernardon’s case and lacked others. For instance, Mr. Bernardon engaged in many more acts of sexual intercourse with his victim. However, Mr. Thurairajah plied his victim with alcohol and then had sex with her while she was unconscious. Moreover, he left her partially clad and exposed to the elements in cold weather, rendering her nearly comatose and thereby threatening her life. Mr. Thurairajah also knew that his victim may be stigmatized in her Tamil community as a result of the abuse he inflicted in the presence of other peers. On the whole, I consider the circumstances in the Thurairajah case to be more severe than in Mr. Bernardon’s case. Also, a significant mitigating factor was missing from Mr. Thurairajah’s case: he did not plead guilty.

38In R. v. E.C.¹², the offender was also relatively youthful at the time of the offences, albeit two years older than Mr. Bernardon. The 21-year-old offender was found guilty after a jury trial of having sexual intercourse with a 15-year-old victim, following and evening in which the victim, the offender, and other friends consumed alcohol and drugs. DNA from another one of the older friends was also found on swabs taken from the victim, but she could not recall any sexual contact with that person. The offender knew that the victim was extremely intoxicated at the time. The trial judge sentenced the offender on the basis that the offender did not take reasonable steps to ascertain the victim’s actual age. The court noted the accused’s exploitation of the power imbalance that arose from the age difference between the accused and the offender, that the offender plied the victim with alcohol, and that the sexual activity had a profound negative impact upon the victim. The court also noted certain mitigating factors, namely: the respondent's lack of criminal record; the support of his parents and the mother of his young child; his meaningful work history; and his sincere efforts toward rehabilitation, demonstrated by the measures he had taken since the events leading to the charges to address a problem of alcohol dependence. Having regard to the factors present in that case, the Court of Appeal concluded that an 18 months sentence would have been appropriate. I would note that E.C. did not plead guilty and was thus not entitled to the significant mitigation that might ordinarily flow from a guilty plea. However, I would also note that E.C.’s offending conduct only occurred over the course of one evening, albeit on multiple occasion during that evening. Mr. Bernardon’s offending conduct occurred multiple times over many months. However, E.C. was also two years older than Mr. Bernardon at the time of the offence and, accordingly, his age could not have the same mitigating effect as Mr. Bernardon’s.

39The Supreme Court has repeatedly recognized that sentencing is an individualized process that must take into account not only the particular gravity and circumstances of the offence but also the particular history and circumstances of the offender. “There is no such thing as a uniform sentence for a particular crime, and sentencing is an inherently individualized process”¹³ Accordingly, “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 straitjackets, but should instead be seen as historical portraits for the use of sentencing judges, who must still exercise their discretion in each case”¹⁴

40Having considered the aggravating and mitigating circumstances present in this case and having considered the precedents provided to me, I am satisfied that a 15 month custodial sentence adequately reflects the severity of the offending conduct, adequately reflects its profound impact upon the victim, adequately expresses society’s denunciation of this conduct, and adequately satisfies the principle of general deterrence. At the same time, I am satisfied that a sentence of 15 months custody sufficiently recognizes Mr. Bernardon’s guilty plea, his remorse, his otherwise exemplary life, his strong prospects for rehabilitation, and his youthfulness at the time of the offence. In my view, a 15-month custodial sentence emphasizes general deterrence and denunciation but also shows the restraint that the mitigating factors in this case warrant. Were Mr. Bernardon further removed from being the age of a young offender himself and thus further removed from the statutory close-in-age exemption, I would have considered a higher sentence in order to reflect the increased moral blameworthiness of an older offender and the increased gravity of the offence when committed by an older offender. Conversely, had the offence been a fleeting one and Mr. Bernardon’s level of moral culpability somewhat lower as a result, I might have considered a lesser sentence.

41As for the request that Mr. Bernardon’s sentence be served conditionally in the community, I am not satisfied that a conditional sentence would provide an adequate measure of deterrence or denunciation. The offence is too serious, its duration too long, and its impact upon the victim too profound. This is not, in my respectful view, one of those rare child-sexual-abuse-cases where a conditional sentence would be appropriate.

42In addition to the 15 months of custody, I will place Mr. Bernardon on probation for 1 year, impose an order pursuant to s. 161(1)(b) for 5 years, a SOIRA order, a 109 order, and DNA order.

Released: August 18, 2021

Signed: Justice C.A. PARRY

APPENDIX A: AGREED STATEMENT OF FACTS

Introduction – Names and Birthdates

The complainant is legally named B.N. Her birthdate is […], 2004, making her 14 years old at the time of these allegations. At the time of these allegations, B.N. used her legal name and identified as female. This has changed and now he identifies as male and with the name “S.N.” Because these allegations occurred in the time frame when S.N. identified as female and using the given name B., for the purpose of outlining these allegations, those pronouns and names are used at this point in the proceeding for clarity.

Sea Cadets

Dylan BERNARDON was born August 26, 1999. He was employed by Department of National Defence. He was in the Regular Officer Training Program and attended the University of Windsor as part of that program. As part of his employment with the Canadian Armed Forces, he was paid. He was also part of the Royal Canadian Sea Cadets program. The Royal Canadian Sea Cadets is a civilian youth program delivered in partnership by the Navy League of Canada and the Department of National Defence. The Sea Cadet program is open for youth between the ages of 12 and 18. B.N. was enrolled in the Sea Cadet Program.

Mr. BERNARDON and S.N. entered into an intimate relationship in January of 2019 when S.N. had just turned 14 years old and Mr. BERNARDON was 19 years old. There is approximately 5 years and 4 months difference between the two.

While attending the Sea Cadets programme, Mr. BERNARDON would treat B.N. differently than the other cadets. He was flirtatious with her. In early January 2019, Mr. BERNARDON began text messaging B.N. and eventually asked to see her outside of the Cadet Programme. Information surrounding this text messaging was discovered and got back to the Canadian Armed Forces. An internal investigation was conducted and a parallel police report was filed (Case #2019-4954). In this investigation, there was no evidence to support a criminal charge and the file was closed pending any further information. Mr. BERNARDON was subsequently addressed by the military about the text message contact and the matter was dealt with internally.

The Offence

In February 2019, Mr BERNARDON and B.N. began seeing each other outside of the Cadet Programme. Mr. BERNARDON would pick B.N. up and they would drive around and talk. Eventually, these conversations turned sexual in nature.

As things progressed, Mr. BERNARDON and B.N. began to have sexual intercourse. B.N. explained that the first time they engaged in intercourse, they were at a remote location in Mr. BERNARDON's motor vehicle. B.N. was not comfortable at first because she had never engaged in sexual intercourse before. Mr. BERNARDON then invited and counselled B.N. to begin touching him. This activity advanced, resulting in the two having protected vaginal intercourse. During this act, B.N. would talk like a young child and Mr. BERNARDON would not oppose that. B.N. was to tell Mr. BERNARDON in a childish voice that she was 14 years old.

Mr. BERNARDON was also into "rough sex" and would at times choke B.N. and slap her across the face several times. Throughout the relationship, they also engaged in intercourse at B.N.'s residence and Mr. BERNARDON's residence.

Between February and approximately July 2019, the two engaged in sexual intercourse approximately 20 times. After July, B.N. moved from her mother's residence to her older sister's residence. When this occurred, B.N. was no longer allowed to physically see Mr. BERNARDON, however still continued a relationship over social media. B.N. eventually left her sister's residence and began living at Youth Group Home ([…]).

On April 9, 2020, B.N. confided with a staff of the [the Youth Group Home], who in turn contacted the Windsor Police to disclose the above information. A statement was obtained from the staff member. On April 15, 2020, B.N. provided a victim video statement outlining the above information. B.N. further provided her cellular device for analysis. This analysis was conducted and the cellular device was returned to B.N.

On Friday May 15, 2020, Mr. BERNARDON was contacted by telephone and was provided with the grounds for his arrest. Mr. BERNARDON was provided with and confirmed his understanding of his Charter rights and caution. Mr. BERNARDON made an arrangement to surrender himself to the police that day. At approximately 9:20 a.m., Mr. BERNARDON was placed under arrest for Sexual Assault, Sexual Interference and Invitation for Sexual Touching. Mr. BERNARDON was again provided with and confirmed his understanding of his Charter rights and cautions.

At approximately 10:04 a.m., an accused interview was conducted, under caution, with Mr. BERNARDON. During this interview, Mr. BERNARDON confirmed his involvement with B.N. and the sexual activity between the two. Mr. Bernardon also confirmed that he knew B.N. was 14 years old.

APPENDIX B: CASE SUMMARIES

R. v. Wells, 2000 SCC 10

• An adult aboriginal offender engaged in sexual intercourse with an unconscious 18-year-old victim.  A jury found the offender guilty at trial.  The offender had a serious alcohol problem.  He engaged in substantial counselling since the offence.  The trial judge rejected the request for a conditional sentence and instead imposed a 20-month custodial sentence.  The Sentence was upheld by the Supreme Court.
• The victim was not a child.  The victim did not consent to the sexual activity.  If she did, her consent would have provided a full defense to the charge.  The offender had a criminal record.   The offender did not plead guilty.  And the offender’s age is not reported in any of the reported appeal decisions.

R. v. A.C., 2012 ONCA 608

• The offender was convicted after a trial.  The judge concluded that the offender laid on top of the victim, touched her under her shirt, attempted to kiss her, and placed his penis near her vagina.  The trial judge harboured a reasonable doubt about whether intercourse occurred.  The victim was a teenager and a relative of the offender.  The offending conduct took place over several months.  The offence was historical.  The trial judge imposed a conditional sentence of 2 years less a day in duration.  This aspect of the sentence was upheld on appeal.

R. v. L.F.W., 2000 SCC 6

• The offender was sentenced to a 21-month conditional sentence for one count of indecent assault and one count of gross indecency.  The offences occurred between 1967 and 1973.  The victim was between 6 and 12 years old at the time.  The offender was the victim’s first cousin and was between 22 and 28 when committing the offences.  Alcohol abuse played a role in the offender’s conduct.  He later became sober and had been sober for 20 years before the sentencing.  The Supreme Court upheld the conditional sentence.

R. v. J. W., 1997 CanLII 3294 (ON CA), [1997] O.J. No. 1380 (C.A.)

• The victim was between 8 and 9 years old when sexually assaulted by the offender.  The offender was between 20 and 21 years old when committing the offences.  He was convicted after a trial.  On appeal, the Court of Appeal substituted a 12-month conditional sentence for the custodial sentence imposed at trial.

R. v. Scofield, 2019 BCCA 3

• The offender pleaded guilty to two counts of sexual interference
• The offender was 22 years old at the time of the offences.  He suffered from significant cognitive impairment, possessing an IQ of 59.  The trial judge found that the offender’s cognitive deficits played a role in his offending behaviour and thus reduced his level of moral culpability.  The Court of Appeal showed deference to these factual findings.
• The two victims were 15 years old at the time of the offences.  They were a little over 6 years younger than the offender.  The various consensual sexual events with the offender included fellatio and vaginal intercourse.
• The offending conduct had a significant, long-lasting and negative impact upon one of the victims.
• The offender had no prior record.
• The trial court imposed a 6-month conditional sentence.
• The Court of Appeal increased the duration of the conditional sentence to 12 months in duration.  The offender’s cognitive deficits and corresponding reduced level of culpability constituted a significant factor in the conclusion that a conditional sentence was appropriate.  Also, the offender was young at the time of the commission of the offences and a considerable amount of time had passed between the time of the offence and the decision on appeal.

R. v. D.R., 2003 CanLII 9127 (ON CA), [2003] O.J. No. 561 (C.A.)

• The offender pleaded guilty to one count of sexual exploitation and one count of sexual assault.  He only pleaded guilty after the victim testified at his preliminary inquiry.  The victim was his 15-year-old daughter.  The offences involved the fondling of the victim’s breasts, buttocks, and thighs underneath her clothes.  The offences occurred several times a month over the course of 14 months.  The offender was not a youthful offender.  Also, the offender had a lengthy criminal record, which included a sexual assault on his son’s 16-year-old girlfriend.
• The trial judge imposed a conditional sentence.  The Court of Appeal varied the sentence to a 2 year less a day jail sentence.

R. v. D.D., 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 (C.A.)

• The offender victimized four children over the course of seven years.  The offences began when the offender was 25.  The victims were between 5 and 8 years of age.  Each victim was exposed to all manner of sexual activity for several years apiece. The Appellant coerced his young victims to engage in virtually every conceivable homosexual act with him. More specifically, the Appellant French kissed them; he licked them (their backs and "bums"); he fondled their buttocks and genitals; he masturbated them, masturbated himself in front of them, and had them masturbate him; he relentlessly attempted to anally penetrate them (thinking that "sooner or later" it would fit); he had them anally penetrate him; he had them commit acts of fellatio on him (sometimes ejaculating into their mouths); he performed oral sex on them; and he successfully had anal intercourse with them. Sometimes these sexual acts took place in groups, or with others watching the sexual activities.
• The offender also stood in a position of trust towards each child.
• The offender was convicted after a trial, which in turn had followed a preliminary inquiry.
• The trial judge imposed a sentence of 8 years and 1 day, in addition to credit given for 1 year of pre-trial custody.
• Speaking for the court, Moldaver J. found the sentence to be at the low end of the range.  He also observed the following:

To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double-digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (See, for example, R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W.(L.K.) (1999), 1999 CanLII 3791 (ON CA), 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.)

R. v. E.C., 2019 ONCA 688

• A 21-year-old offender was found guilty after a jury trial of having sexual intercourse with a 15-year-old victim, following and evening in which the victim, the offender, and other friends consumed alcohol and drugs.  DNA from another one of the older friends was also found on swabs taken from the victim, but she could not recall any sexual contact with that person.  The offender knew that the victim was extremely intoxicated at the time.  The trial judge sentenced the offender on the basis that the offender did not take reasonable steps to ascertain the victim’s actual age.
• Certain aggravating factors were not present.  For example, although three sexual encounters occurred, they all occurred over the course of one evening – the exploitation did not involve a multitude of incidents over a vast time span.  Also, there did not exist a more significant age gap between the offender and victim.  The Court of Appeal stressed, however, that the proximity of 6 ½ years in age did not constitute a mitigating factor, but rather the absence of an aggravating one.  In that regard, the court stated: “Nor does the parties' relative proximity in age detract from the victim's vulnerability, or from the respondent's blameworthiness in taking advantage of that vulnerability. While a greater discrepancy in age can be an aggravating factor, the opposite is not true.”
• On appeal by the Crown, the Court of Appeal increased the sentence from 6 months to 18 months.

R. v. G.C.F,. 2004 CanLII 4771 (ON CA), [2004] O.J. No. 3177 (C.A.)

• The offender was 31 years old.  He lured two 13-year-old girls with alcohol.  He was an assistant superintendent in their building.  He was also a family friend.  The offending behaviour took place over two months.  It progressed from fondling, to fellatio, and ultimate to intercourse with one of them.  That victim disclosed the events to her mother when she believed she had become pregnant.
• The offender was found guilty after an 18-day trial.
• The trial judge imposed a 12-month conditional sentence.  The Crown appealed.
• On appeal, the Court of Appeal increased the sentence to a 2-years less a day reformatory sentence.  Had the Crown sought a higher sentence, the court would have imposed a low-penitentiary sentence.
• The court noted that conditional sentences should rarely be granted in cases involving the sexual exploitation of children.
• The court also noted that cases where the sexual exploitation occurs over a prolonged period of time and involves multiple instances, the sentence ought typically to involve a penitentiary sentence.

R. v. P.M., 2002 CanLII 15982 (ON CA), [2002] O.J. No. 644 (C.A.)

• The offender victimized two daughters of a family friend.
• He pleaded guilty.
• He was 26 years old when he victimized the first daughter.  She was 11 years old.  When she turned 13, they commenced having intercourse.  He convinced her that he was her boyfriend.  This sexual relationship continued until she turned 16 years old.  It ended after the offender married the victim’s aunt.
• The offender also sexually assaulted the 21-year-old sister of the first victim, by touching her breasts while she was playing with his two young children.
• The trial judge imposed a 15-month conditional sentence.
• The Crown appealed.
• The Court of Appeal substituted a custodial sentence of 2 years less a day for the conditional sentence.
• The offender was in a position of trust both with the family members of the victims themselves.
• Regarding the teenaged victim, the court concluded that “this was exploitation of the worst order.”
• But for the guilty plea, the appellant's stable work and family circumstances, and his clean prior record, the offender would have received a penitentiary sentence.

R. v. R.H., [2021] O.J. No. 1933 (C.A.)

• The offender pleaded guilty to sexual interference, making child pornography and accessing child pornography.
• The appellant sexually abused C.S. for years, beginning when C.S. was only ten years old. The appellant was 35 years senior and there was a family connection: he was a cousin of C.S.'s stepfather. The appellant began by taking C.S. on short overnight trips where they would wake up in the same bed with their hands on each other's intimate body parts. Oral and anal intercourse later began. They would meet each other every 1-3 months. A system of penalties was established. If the victim did not communicate with the appellant every day, he would have to atone for it by performing sexual acts.
• The offender also took pornographic pictures of the victim.
• The aggravating factors included the abuse of children under 18 years of age, abuse of a position of authority or trust in relation to C.S., grooming C.S. starting at the age of 10, the escalation of the nature of the sexual abuse towards C.S., the large number of incidents, multiple victims, the severe impact on the victims, the control exercised over C.S., and the tendency of the appellant to blame C.S. for the sexual contact. Both victims inflicted self-harm as a result of the abuse. C.S. had suicidal thoughts and on several occasions fashioned nooses in his room with that purpose in mind. He suffered from severe depression as a result of the abuse. Both S.L. and C.S. suffered damage to their relationships with family and friends. The sentencing judge concluded that the sexual abuse had "a significant and serious impact on their emotional well-being and development."
• The mitigating circumstances included the absence of any criminal record, the guilty pleas, the appellant's gainful employment, and that he was the sole provider for his elderly mother. The appellant was 53 years old at the time of sentencing.
• The Court of Appeal dismissed the offender’s sentence appeal and concluded that the global sentence of 6 years custody was appropriate.

R v. Woodward, 2011 ONCA 610

• After an 11-day trial, the offender was convicted of luring, sexual assault, touching for a sexual purpose, invitation to sexual touching, and attempting to obtain sexual services for consideration.
• The victim was a 12-year-old child.  The offender was 30.
• The offender lured her into sexual activity after meeting her in a chat room.
• He offered an enormous sum of money to her in exchange for sexual intercourse with her.
• Her family suffered from financial difficulties.
• He fraudulently convinced her that he possessed millions of dollars and that he had transferred a large sum into an account created for her.
• Ultimately, in exchange for this fictitious money transfer, she performed two acts of fellatio upon him while he fondled her genitals.
• The trial judge imposed a global sentence of 6 ½ years.  The Court of Appeal upheld the sentence.

R. v. Bremner, 2000 BCCA 345, [2000] B.C.J. No. 1096 (C.A.)

• The offender was convicted after a trial of sexually abusing
• He was an officer in the Sea Cadets.
• He was between the ages of 23 and 26 when the offences occurred.
• The offences happened in the 1960’s and 1970’s.
• 30 years had transpired since the commission of the offences.
• The Court of Appeal observed that Bremner did not have a criminal record, used no physical violence, had been free of trouble with the law for 30 years and was rehabilitated.
• The Court of Appeal substituted a conditional sentence for the 18-month custodial sentence imposed at trial.

R. v. Lim, [2020] O.J. No. 161 (C.J.)

• Sentencing of the offender for sexual interference.
• The offender acknowledged he engaged in sexual touching with the victim, including a brief act of fellatio, when he was 20 and she was 14. The offender was 22 years old at the time of sentencing and had no criminal record. He lived at home with his mother and attended university. He was involved with his church and was considered as a kind, considerate, and compassionate young man.
• After being charged, the offender voluntarily underwent counselling. A psychiatric risk assessment found no evidence of any underlying mental health disorder or paraphilia, including pedophilia. The offender was found to be a low risk to re-offend.
• He expressed remorse for his actions.
• The actions of the offender had a detrimental effect on the victim. The Crown sought a 90-day intermittent jail sentence. The defence sought a conditional discharge with probation.
• The trial judge imposed a six-month conditional sentence.

R. v. Paterson, [2010] O.J. No. 5108 (S.C.J.)

• The offender engaged in a sexual relationship with a young person in her foster care. The victim was a young person, 16 to 17 years of age during the relationship. He had a troubled background and was a prior victim of sexual abuse. The offender, age 38, met the victim in the course of her employment as a childcare worker in a group home.
• She was found guilty after a trial.
• She suffered from a depressive illness during the relationship, for which she eventually received treatment.
• She expressed remorse and attended counseling. Her former husband wrote a letter of support, expressing concern of the effect that incarceration would have on the parenting of their three children.
• The trial judge imposed a 6-month custodial sentence.

R. v. Hajar 2016 ABCA 222

• The offender was 20 years old.  The victim was 14 years old.
• He met her on Facebook.
• Gradually, he the communications turned erotic and he convinced her to send him lewd photographs.
• He convinced her to meet him and they met four times.
• The sexual activity progressed to fellatio.
• He was convicted of sexual interference and child luring.
• He pleaded guilty, but only after the victim had testified in a preliminary inquiry.
• Also, during his assessment by a psychologist, he blamed the victim, labelling her an “easy woman”.
• The majority of the five-member panel noted that “where adults fall just outside the close-in-age exception, this too will be a factor to be taken into account in sentencing.”  However, the court noted that this factor will “generally be of lesser weight” than the aggravating factors present in the exploitation of children by adults.
• Given the luring, the creation of child-pornography with the victim as the subject, the manipulation and grooming, the duration of the offending behavior and its impact upon the victim, the court concluded that a global sentence of 3 ½ years would be appropriate.  However, due to the delay occasioned by the appeal process, the court decided against interfering with the global 18-month custodial sentence imposed by the trial judge.

R. v. K.S., 2018 ONSC 5678

• The 30-year-old offender was convicted after a trial of sexual assault, sexual interference, and invitation to sexual touching.
• The victim was 14 years old.
• The offender was friends with the victim’s 30-yearl-old cousin.
• He drove the victim home from Ajax to Whitby, after the offender’s visit with her Aunt over the Christmas holidays.
• During the trip, he convinced her to engage in sexual activity with him, which occurred at a deserted parking lot a short distance from the highway.
• The sexual activity included each performing oral-sex upon the other.  It also progressed to protected sexual intercourse.
• The offender mounted a mistake-of-fact defence, claiming to believe that she was over the age of 16.  The trial judge concluded that the offender failed to take reasonable steps to ascertain the victim’s age.  On that basis, he was convicted.
• The judge imposed a sentence of 15 months imprisonment.

R. v. C.A., 2019 ONCJ 124

• The 24 year-old-offender met the 14-year-old victim on an online dating app.  She purported to be 15 – a fact which, assuming it was believed, would still not afford the offender a defence.
• Eventually, they entered into an “intimate sexual relationship.”  During that relationship, they had sexual intercourse over 10 times.  They also engaged in other sexual activity.  At some point, the victim revealed that she was actually 14 years old, but the sexual relationship continued.
• The relationship lasted 5 months.
• The offender pleaded guilty and had no criminal record.
• The court imposed a period of 12 months custody and 12-months-probation.

R. v. W.T. 2016 ONSC 7776

• After a trial, the court convicted the offender of sexual interference.
• The offender was 49 years old at the time of sentencing.
• The victim was his 13-year-old niece.
• The offence occurred in the bedroom of her grandmother’s house.
• It involved digital penetration and a brief act of sexual intercourse.
• The offence had a significant impact upon the victim and the extended family.
• The offender was a first offender.  He had a positive PSR.  And he pleaded guilty.
• The trial judge imposed a 2-year custodial sentence.

R. v. J.D., 2015 ONSC 5857

• Sentencing of the offender for sexual interference. The offender pleaded guilty. The 15-year-old victim resided with her father at a shelter. The offender also resided at the shelter with his young son. The victim sometimes babysat for the offender. The victim had sexual intercourse with the offender, 31, on at least two occasions. The offender had no prior record. He had struggled with various mental health issues throughout his life. He appeared to suffer from both depression and anxiety. The offender was remorseful.
• The Court imposed a 15-month custodial sentence with probation.

R. v. J.B., 2013 ONSC 6310

• Sentencing of offender after he was convicted at trial of sexual interference with a person under the age of 16 years. The victim was a friend of the offender's family and a regular babysitter for his children. One four occasions, the offender had intercourse with the victim while the victim was spending the night at the offender's house after babysitting his children. The offender pled not guilty and continued to assert his innocence.
• Offender sentenced to 2 ½ years’ imprisonment.

R. v. S.C. 2005 O.J. No. 2887 (S.C.)

• Following a trial, the offender was convicted of sexually assaulting the victim.
• The sexual activity occurred over the course of 3 ½ years, starting when the victim was 10 years old.
• The offender’s home became a hangout for young pre-teen kids in the neighbourhood.
• The level of assaults progressed to include sexual touching, mutual masturbation in the bedroom, and repeated kissing and fondling. Mr. C. began a relationship with B.'s mother, and eventually moved into the C. home, where the sexual abuse continued. While no extreme violence was used, Mr. C. coerced the victim into compliance with psychological pressure and some overt force in the form of techniques such as squeezing his shoulder or physically holding him down on the bed.
• The offences continued even after Mr. C. moved out of the home into his own apartment and did not cease until the offender attempted anal intercourse.
• The offender was 44 years old at the time of sentencing.
• The trial judge imposed a 3-year penitentiary sentence.  The sentence was upheld on appeal: R. v. S.C. [2005] O.J. No. 3729 (C.A.)

R. v. Aird, 2013 ONCA 447

• The offender was a 28-year-old teacher’s college student.  The victim’s family hired him to tutor the victim, their 17-year- old-daughter.
• The offender occupied in a position of trust towards both the victim and her parents.
• He was convicted of exploiting this position of trust after a trial.
• The offender and victim began a relationship, which lasted about 15 months.
• The sexual activity took place over a considerable period of time: 15 months.
• The sexual relationship included oral sex and ongoing sexual intercourse for at least a year.
• The complainant was vulnerable because, although she was highly intelligent, she was also naïve, sheltered, and had no previous sexual experience.
• In the light of the complainant's vulnerability, the age difference between her and the appellant was significant: 11 years.
• The complainant suffered because of this relationship. She went from a "very happy and trusting girl" to a girl who lost her confidence and her trust in others.
• The trial judge imposed a 12-month custodial sentence, which was upheld on appeal.

R. v. Thurairajah, 2008 ONCA 91

• The offender was 19 years old at the time of the offence.
• The victim was 14.
• He was convicted after a trial of sexual assault.
• The victim became very drunk and passed out while drinking with the accused and two of his friends. The accused had unprotected sexual intercourse with her and then dumped her partially clad and unconscious into a snowbank under a tree. The accused then called her brother to pick her up. Her brother called 911 and the victim was taken to hospital. She was unresponsive and close to comatose; she was suffering from hypothermia and her condition was life threatening. The accused and the victim were both of Tamil descent, and the accused was aware that female victims of sexual assault are sometimes stigmatized in Tamil culture. The accused had no criminal record and the offence appeared to be out of character. He had strong family support. He had complied with strict terms of bail for three years before his sentencing at trial. The trial judge imposed a conditional sentence of 2 years less a day, with house arrest for the first nine months, a curfew for the next nine months, with no curfew or house arrest for the final six months, followed by six months' probation. The Crown appealed.
• The Court of Appeal concluded that the sentence was demonstrably unfit, failing to satisfy the principles of deterrence and denunciation.  The court concluded that a fit sentence would have been a custodial sentence of 2 years less a day to 4 years.
• The aggravating features included (1) the age and vulnerability of the victim; (2) the respondent committed this crime in the presence of other members of the victim's peer group, no doubt adding to her long-term humiliation and the need for general deterrence; (3) the significant emotional harm done to the victim and potential long-term ostracization of the victim in her ethnic community, the risk of which was known to the respondent; and (4) the respondent's stunningly callous and highly life-threatening treatment of the helpless victim after the rape.
• Having regard to the offender’s youthfulness, his otherwise unblemished antecedents, the support of his family, his three years on a strict bail order, and the fact that he completed 16 months of the conditional sentence order, the court varied the sentence and imposed a 9 moth jail sentence plus six months of probation.   Implicitly, the court appears to have suggested that the low end of its suggested range was therefore appropriate.

R. v. B.J.T., 2019 ONCA 694

• The accused was convicted of two counts after a trial.

• On appeal, the Court of Appeal ordered a new trial on the earliest of the two alleged offences.

• The accused was sentenced at trial to 9 months custody on the latter of the two offences.

• The Court of Appeal upheld this sentence.

• The victim had issues with hygiene.

• Her father assisted her with shaving her pubic hair when she was 15.

• He commented on the size of her clitoris and inserted his finger into her vagina.

• When this second incident occurred, the appellant had already been warned and threatened by his wife, he knew his daughter could receive assistance in another way, and he took advantage of the situation by commenting on the size of his daughter's clitoris and putting his finger in her vagina, indicating that he had a sexual purpose.

• The fact that a child consented or even initiated the activity did not remove the trust relationship or the obligation of the adult to decline the invitation.

Footnotes

1. 1R. v. Friesen, 2020 SCC 9.
2. 2[2] R. v. Friesen, supra.
3. 3R.. v. Friesen, supra, at para 113.
4. 4R. v. D.D., 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061 at para 44 (C.A.)
5. 5R. v. Thurairajah, 2008 ONCA 91
6. 6R. v. Friesen, supra
7. 7R. v. B.J.T., 2019 ONCA 694
8. 8R. v. G.C.F., 2004 CanLII 4771 (ON CA), [2004] O.J. No. 3177 (C.A.)
9. 9R. v. E.C., 2019 ONCA 688
10. 10R. v. Hajar, 2016 ABCA 222
11. 112008 ONCA 91
12. 122019 ONCA 688
13. 13R. v. Lacasse, 2015 SCC 64 at para 54
14. 14Lacasse, supra, at para 57