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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

(b) on application made by the victim, the prosecutor or any such witness, make the order.

486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Ontario Court of Justice

Date: 2023 08 08 Court File No.: Chatham-Kent 20-1338

BETWEEN:

HIS MAJESTY THE KING

— AND —

BRENT LOYER

Before: Justice R. B. Horton

Heard on: May 4, 2023 and June 6, 2023

Reasons for Judgment released on: August 8, 2023

Counsel: Mr. S. Kerwin....................................................................................... counsel for the Crown Mr. G. McGivern...................................................... counsel for the Offender Brent Loyer

HORTON J.:

1Mr. Loyer pled guilty to two counts of sexual interference May 4, 2023 with facts and findings having been made on that date, a presentence report was requested and has been completed. The matter was set over to June 6, 2023 for sentencing.

2The Crown and Defence disagree on the appropriate sentence. The Crown seeks a period of 14 to 18 months in custody followed by a period of probation of 36 months. The Defence submits that a conditional sentence order of two years less a day is a fit and fair sentence, having regards to all the individual circumstances. They join the Crown in relation to a probation order of 36 months.

3The Crown submits that a conditional sentence order would not adequately reflect the paramount principles of sentencing nor the gravity of the specific offences.

4It is essential to review the specific circumstances of this case and the applicable guiding legal principles that I have relied upon in determining a sentence that balances the competing considerations of the Offender and the circumstances of these offences.

FACTS

(i) Circumstances of Offences

5The facts surrounding the offences for which pleas were entered largely are not in dispute:

(a) The Offender is 82 years of age; The Complainant, A.P., was 14 years of age at the time of the offences;

(b) The Offender and the Complainant lived in the same neighbourhood. The Complainant often went to the Offender’s home. The Offender and the Complainant’s father were friends;

(c) On or about August 28, 2020, the Complainant attended the Offender’s home and the Offender began kissing her on her neck. The Complainant went home and told her mother at which time the Complainant’s father called the Offender and voiced concerns, prohibiting his daughter from attending at the Offender’s residence;

(d) From August 28 through September 8, 2020, the Complainant attended at the Offender’s residence during which times further inappropriate conduct occurred including the Complainant sitting on the Offender’s lap, kissing and the Offender massaging the Complainant’s back area and vagina through her clothes;

(e) On or about September 8, 2020 the Complainant’s father, while looking for his daughter observed her in the shed of the Offender, her bike had been placed behind the shed in an apparent attempt to hide the bicycle and he observed the Offender hug the Complainant, resulting in a confrontation between the Offender and the Complainant’s father. Police were notified;

(f) The Offender admitted touching the Complainant inappropriately but does not recall touching her vaginal area specifically. The presentence report suggests that the Offender denies the facts and the specifics of the allegation of touching.

(ii) Victim Impact

6The Crown filed the Victim Impact Statement of the Complainant’s parents, T.P. and B.P. The content of this statement reveals the depths of damage caused to the Complainant. It reveals the devastating emotional impact including A.P.’s suicidal thoughts, her need to change schools and her lowered self-esteem. The Complainant has been impacted significantly by the offences against her and this is further demonstrated by the reports of the Complainant having shaved her eyebrows, plucked her eyelashes and her picking behaviour to the point of bleeding.

7I consider the impact of Mr. Loyer’s actions on this specific Complainant as an aggravating factor on sentencing.

(iii) Pre-Sentence Report, dated September 7, 2022

8The Pre-Sentence Report provides that Mr. Loyer shows good insight into his behaviour, recognizing and accepting his responsibility for his actions insofar as Count 4, the kissing incident, is considered. Respect to Count 8, the touching incident, the author of the PSR notes that the Offender categorically denied the inappropriate sexual behaviour, the touching over the clothes of the Complainant’s back and vaginal area. The PSR notes at page 6,

“instead of expressing victim empathy, the Offender is blaming the victim for seeking his attention”

9Defence counsel submits that despite these comments, the Offender has acknowledged his behaviours and the facts associated therein and as such has expressed remorse.

10Within the recommendations presented in the PSR there is the submission that the Offender is suitable for a period of community supervision, upon a number of enunciated conditions being included in such an order.

(iv) Dr. Komer Report

11Dr. Komer’s report sets out that he does not view the Offender as being pedophilic. Dr. Komer notes that there is little risk of the Offender repeating this behaviour.

12The additional circumstances of the Offender that can be distilled from Dr. Komer’s Report include,

(a) Mr. Loyer suffers from a number of medical issues including spinal stenosis, osteoarthritis, high blood pressure, heart related issues and the recent onset of tremors;

(b) Mr. Loyer by virtue of his age of 82 years is susceptible to health concerns;

(c) Throughout his adult life Mr. Loyer is said to have been a pro-social member of society. He has no prior, related, criminal record.

(v) Circumstances of the Offender

13As previously noted, Mr. Loyer is 82 years of age and is a first-time Offender. He was employed throughout his life in the tool and die industry and worked within this field for approximately 40 years.

14Mr.Loyer was released on a number of conditions which, though not remarkably onerous, he followed without issue.

15Mr. Loyer has pled guilty to the offences. Two counts of sexual touching of a then 14-year-old girl. He has by virtue of this plea acknowledged responsibility for his actions. Though, it can be gleamed from the PSR that he may not fully appreciate his responsibility and the inability of the Complainant, by virtue of her young age, to have consented to the acts or in any way be blameworthy.

16Mr. Loyer’s background was quite positive. He was raised in a two-parent home with Christian values which was free of abuse.

C. LEGAL ANALYSIS

(i) General Principles

17S. 718 C.C.C. sets forth that the “fundamental purpose” of sentencing is to,

“contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: (1) to denounce unlawful conduct; (2) to deter the Offender and others from committing offences; (3) two separate Offenders from society where necessary; (4) to assist in rehabilitating Offenders; (5) to provide reparations for harm done to victims or the community; and (6) to promote a sense of responsibility in Offenders and acknowledgement of the harm done to victims and the community.”

18In the case of adult Offenders, absent exceptional circumstances, the objectives of denunciation and general and specific deterrence must take precedence over other objectives of sentencing. Justice Modaver, J.A., in R. v. D.(D.) [2002]) at paragraphs 34 and 35 noted,

“the overall message however, is meant to be clear. 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. In such cases as this, absent exceptional circumstances, the objectives of sentencing proclaimed by Parliament in s. 718 (a), (b) and (c) of the Criminal Code, commonly referred to as denunciation, general and specific deterrence, and the need to separate Offenders from society, must take precedence over the other recognized objectives of sentencing.

We as a society owe it to our children, to protect them from the harm caused by Offenders like the appellant. Our children are once our most valued and most throughout their formative years, they are manifestly incapable of defending themselves against predators like the appellant and, as such, they make easy prey. People like the appellant know this only too well and they exploited to achieve their selfish ends, heedless of the dire consequences that can and often do follow.”

19In R. v. Friesen [2020] S.C.C. 8 Supreme Court of Canada emphasized that sentences for these offences must reflect the contemporary understanding of sexual violence against children when determining the gravity of the offence, it is not sufficient to simply state that sexual offences against children are serious. Courts must impose sentences that recognize and give effect to (1) the inherent wrongfulness of these offences, (2) the actual harm the children suffer, and (3) the potential harm to children that flows from these offences. The Court stated at paragraph 5,

“sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the Offender, as informed by Parliament’s and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching an ongoing harm that it causes to children, families and society at large.”

20The courts have recognized that there will be situations that call for a sentence outside normal sentencing ranges because of specific circumstances of a particular case. (See R. v. Lacasse [2015] S.C.C. 64).

21While individual or collateral consequences can reduce a sentence within a range, such considerations should not reduce a sentence to the point that it becomes disproportionate to either the gravity of the offence or the moral blameworthiness of the Offender. (See R. v. Studd 2020 ONSC 2810, [2020] O.J. No. 2035 at para. 42).

(ii) Whether Conditional Sentence is Available

22In R. v. B.J.T. [2019] ONCA 694 the Court of Appeal struck down the mandatory minimum sentence for s. 151. In R. v. Sharma [2020] ONCA 478 the appeal court struck down the restriction on the availability of conditional sentences for offences involving a maximum sentence of 14 years. These authorities make a conditional sentence available as an option in this sentencing of this Offender.

23Pursuant to s. 742.1 C.C.C. court may order a conditional sentence when,

(i) the offence does not call for a minimum term of imprisonment;

(ii) the court imposes a sentence of imprisonment of less than two (2) years; and

(iii) the court is satisfied that “serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 and 718.2 C.C.C...

24Conditional sentences have been imposed for similar offences to those currently before the court. In R. v. Parsons, [2020] O.J. No. 3864, the first-time Offender at age 80 years was found guilty of sexual interference. The victim was nine years of age the court considered the direction of the Supreme Court of Canada in R. v. Friesen and the subsequent case law. The court in this case was satisfied that the possibility of recidivism was low and determined that deterrence and denunciation could be satisfied by a conditional sentence order as the sentence would not endanger the public.

25Pre- R. v. Friesen the decision of R. v. B.S., [2004] O.J. No. 1170 in which the Offender who is a close family friend to the 13-year-old Complainant touched her inappropriately on multiple occasions including touching her through her clothing and kissing her. At the trial a sentence of 12 months imprisonment was ordered. The Ontario Court of Appeal found the sentence excessive and stated,

“we are nevertheless of the view that the sentence of 12 months imprisonment for this first Offender was manifestly excessive. As serious as the conduct was, exasperated by the trust relationship 12 months imprisonment was outside the appropriate range for this kind of conduct for this type of Offender”.

26The Court of Appeal went on further to state,

“we have given anxious consideration to an appropriate sentence in this case. We cannot disagree with the principle that some brief period of incarceration would have been appropriate bearing in mind the need for denunciation and general deterrence. Thus, the trial judge might have imposed a short jail sentence on the charge of sexual assault and a consecutive conditional sentence on the charge of invitation to sexual touching.”

(iii) Application to the Specific Facts of Case

27The moral culpability of the Offender is high.

28He is 82 years of age while the Complainant was 14 years of age at the time of the offences.

29The Offender was in a position of trust having been noted as a “grandfather figure”.

30The Victim Impact Statement filed in this matter describes the negative effects, both emotionally and physically, that the actions of Mr. Loyer have had on this young victim.

31There are a few mitigating factors that must be considered including,

(a) Mr. Loyer is 82 years of age and does not have a criminal record;

(b) The Pre-Sentence Report notes a prosocial lifestyle and a significant work history; and

(c) Mr. Loyer suffers from some medical issues that, though not surprising with his age, are not insignificant.

32This is a sexual offence committed against a child. The principles enunciated in Friesen must be applied. The sentence imposed must accurately reflect the wrongfulness of the Offender’s conduct in the extent of harm caused to the Complainant and to her family. It must give priority to the sentencing objectives of denunciation and deterrence it is not open to a sentencing judge to give equivalent or greater priority to other sentencing objectives such as rehabilitation. In R v. T.J. [2021] ONCA 392, the Court of Appeal at para. 37 stated,

“as this court noted in R. v. Woodward 2011 ONCA 610, [2011] ONCA 610, 107 O.R. (3d) 81 at para. 76, the focus of sentencing an adult who has exploited an innocent child should be on the harm caused the child and the Offender’s conduct; the effects of the sentence on the Offender and his prospects for rehabilitation, while warranting consideration, cannot take precedence.”

33In Friesen the Supreme Court of Canada held that sentences for sexual offences need to increase because of the legislative amendments that increased the available maximums, and because of the increased understanding of the gravity and harmfulness of sexual offences against children. The court held at paragraph 114,

“it is not the role of this court to establish a range or to outline in which circumstances such substantial sentences should be imposed. Nor would it be appropriate for any court to set out binding or inflexible quantitative guidance-as Moldaver, J.A. wrote in D.(D.), ”Judges must retain the flexibility needed to do justice in individual cases” and to individualize the sentence to the Offender who is before them. Nonetheless, it is incumbent on us to provide an overall message that is clear. That message is that mid-single digit penitentiary terms for sexual offences against children are normal and the upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and\or a single victim, as in this case”

34In considering the direction provided to trial courts within Friesen, the current post- Friesen case law and the particular circumstances of this case both as they relate to the Offender and the offence I conclude that the sentence proposed by Defence would be lenient and arguably unfit.

35Notwithstanding R. v. Friesen, as with any offence I must consider whether any alternatives to incarceration will adequately address the predominant principles of sentencing of denunciation and deterrence. Admittedly, the courts have few options other than incarceration to meet these objectives. While this is true there are alternative forms of incarceration, inclusive of a conditional sentence.

36A conditional sentence may, at appropriate times, provide the elements of denunciation and deterrence necessary in reaching a fit and appropriate sentence, and has been held to be an alternative form of custodial disposition. I find that a conditional sentence, in these circumstances, would not adequately satisfy the principles of denunciation or deterrence considering the emotional and physical harm of the Complainant, her age and the position of trust held by Mr. Loyer. These circumstances, in my view, mandate that a jail sentence be imposed.

37I find there exists, in the circumstances of this case, an alternative sentence that balances the competing considerations of this particular Offender and the particular circumstances of the offence. A custodial sentence is warranted for Count 8, the sexual interference involving the touching of the Complainant’s vaginal area, but that sentence can be combined with a consecutive conditional sentence on the remaining count of sexual interference involving kissing.

38Crown and Defence, though arguing for different forms of sentences, are aligned insofar as the appropriate sentence is less than two years. I must consider the risk of Mr. Loyer re-offending and the gravity should this occur. I am satisfied that Mr. Loyer, serving a portion of his sentence in the community, would not endanger the safety of the community.

39More significantly, I must consider whether a conditional sentence would be consistent with the fundamental purposes and principles of sentencing.

40A conditional sentence would not adequately address the principles of deterrence and denunciation on the facts obtained within Count 8 for the reasons set forth above. Nonetheless if a period of incarceration is coupled with a conditional sentence the combined sentence will, in my view, balance the competing considerations of the offences and of the Offender. Such a blended sentence achieves,

(i) deterrence of Offender;

(ii) general deterrence;

(iii) denounces this type of conduct;

(iv) acknowledges the remorse of the Offender; and

(v) considers the particular circumstances of the Offender.

41It is legally impermissible to combine a jail sentence of any length with a conditional sentence on the same count.

42In R. v. Proulx [2000] 140 C.C.C. (3d) 499 (S.C.C.) Lamer C.J.C., on behalf of a unanimous court concluded that in a proper case it would be consistent with the principles of sentencing to impose a custodial sentence for one offence followed by a conditional sentence for another without offending the spirit or letter of s. 742.1(b).

43It is legally permissible to blend a custodial sentence with a conditional sentence so long as the sentence in total does not exceed two years less one day and the court is also satisfied that the preconditions in s. 742.1 (b) have been met in respect of one or more but not all of the offences. (See R. v. Ploumis, [2000] O.J. No. 4731 (Ont. C.A.) at para. 26.).

D. CONCLUSION

44I have carefully considered the circumstances of the offence, the circumstances of the Offender, the guiding legal principles and the sentencing objectives. Mr. Loyer will be sentenced as follows:

(i) Count 8

(a) Having determined that a conditional sentence would not adequately reflect the principles of denunciation and deterrence the appropriate sentence is one of five months incarceration with a period of probation of 36 months to follow;

(ii) Count 4

(a) With respect to Count 4, in considering the specific circumstances of the offence, I find a significant conditional sentence will balance the competing sentencing considerations. Such an order can be accomplished, sending a message to the community that such criminal behaviour will result in significant punishment while acknowledging Offender’s expressed remorse, medical and specific circumstances. He has proven to be willing and able to comply with terms of the court order that restrict his liberty. Conditional sentence a term of 18 months shall be imposed consecutive to Count eight also to be followed by the concurrent 36-month probation order.

The probation order will commence following the completion of the custodial sentence imposed with respect to Count 8 and the conditional sentence imposed with respect to Count 4.

45Terms of Conditional Sentence shall include,

(a) Keep the peace in be of good behaviour;

(b) Appear before the court when required to do so;

(c) Notify the court or supervisor in advance of any change of name or address and promptly notify the court or supervisor of any change in employment or occupation;

(d) Report in person to a conditional sentence supervisor immediately and thereafter at all times and places as directed by the conditional sentence supervisor or any person authorized by a conditional sentence supervisor to assist in your supervision;

(e) You must cooperate with your conditional sentence supervisor. You must sign any releases necessary to permit the conditional sentence supervisor to monitor your compliance and you must provide proof of compliance with any condition of this order to your conditional sentence supervisor upon request;

(f) You must live in a place approved of by your conditional sentence supervisor and not change that address without obtaining the prior approval of the conditional sentence supervisor;

(g) Remain in the province of Ontario unless you have prior written permission of your conditional sentence supervisor

(h) Remain in your residence or on the property of your residence at all times except:

(a) on Saturdays between the hours of 12 noon and 4 PM in order to acquire the necessities of life;

(b) for any medical emergencies involving you or any member of your immediate family (spouse, child, parent or sibling);

(c) while travelling directly to, directly from and while attending at your prescheduled legal medical or dental appointments. You will confirm your schedule for any of these exceptions in advance with the conditional sentence supervisor setting out the times for these activities;

(d) while travelling directly to, directly from and while attending at any prescheduled assessments, counselling sessions or treatment programs. You will confirm your schedule for any of these exceptions in advance with the conditional sentence supervisor setting out the times for these activities;

(e) with the prior dated and written approval of your conditional sentence supervisor to be carried on you at all times while out of your residence during her few hours;

(f) for carrying out any legal obligations regarding compliance with this conditional sentence order;

(g) you must present yourself at your doorway upon the request of your conditional sentence supervisor or his/her designate or a peace officer for the purposes of verifying your compliance with your home confinement conditions;

(h) do not contact or communicate in any way, directly or indirectly, by any physical electronic or other means with the Complainant A.P. or the Complainant’s parents, T.P. or B.P.;

(i) do not be within 100 m of any place where you know the Complainant or her parents to live, work, go to school, frequent or any place that you know the person(s) to be except while attending at required court appearances;

(j) do not purchase, possess, or consume any unlawful drugs or substances as defined by the Controlled Drugs And Substances Act except in accordance with a valid prescription in your name;

(k) do not purchase, possess or consume alcohol;

(l) do not attend at any establishment’s in which the primary purpose is the sale of alcohol;

(m) do not possess any weapons as defined by the Criminal Code;

(i) Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your conditional sentence supervisor and complete them to the satisfaction of your conditional sentence supervisor including but not limited to;

(i) psychological and/or a psychiatric issues;

(ii) sexual Offender counselling.

(j) You shall sign any releases of information forms as will enable your conditional sentence supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed;

(k) You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

(l) You shall not be in the company of any female person under the age of 16 years except in the company of an approved upon third-party, approved upon by the conditional sentence supervisor in advance;

(m) Upon completion of your custodial sentence, you will immediately contact your conditional sentence supervisor and make all necessary arrangements for the GPS monitoring service to be set up within your residence. You will attend at your approved residence and maintain a period of house arrest without exception until such time as the GPS monitoring service has been fully enacted.

46Following completion of a custodial sentence and the completion of the conditional sentence order here in you shall be placed on a period of probation for 36 months. The terms of this probation order shall be as follows:

(a) Keep the peace and be of good behaviour;

(b) Appear before the court when required to do so;

(c) Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation;

(d) Report in person to a probation officer within two working days of the completion of your conditional sentence and thereafter at all times and places as directed by the probation officer or any person authorized by the probation officer to assist in your supervision;

(e) You must cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to your probation officer upon request;

(f) Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means with the Complainant, A.P., or the Complainant’s parents T.P. and B.P.;

(g) Do not be within 100 m of any place where you know the Complainant, A.P., or her parent’s, T.P. and B.P., to live, work, go to school, frequent or any place that you know except while attending required court appearances;

(h) Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your probation officer and complete them to the satisfaction of your probation officer including but not limited to;

(i) psychological and/or a psychiatric issues;

(ii) sexual Offender counselling.

(i) You shall sign any releases of information forms as will enable your probation officer to monitor your attendance and completion of any assessments counselling or rehabilitative programs as directed;

(j) You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

(k) You shall not be in the company of any female person under the age of 16 years except in the company of an approved upon third-party, approved upon by the probation officer in advance;

(l) You shall not possess any weapons as defined by the Criminal Code.

47The following ancillary orders shall issue:

(i) DNA (Primary) in regard to each count. Sample shall be provided prior to the Offender leaving the courthouse today;

(ii) S. 109 weapons prohibition for a period of 10 years;

(iii) SOIRA order shall issue for a period of 20 years;

(iv) S. 161 (a), (b) and (c) orders shall issue for a period of five years;

(v) S. 743.21 order shall issue prohibiting the Offender from contacting the Complainant, A.P., or the Complainant’s parents, T.P. and B.P, in any manner during the period of his incarceration.