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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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.
R. v. R.O., 2024 ONCJ 453
Date: September 12, 2024 Court File No: 21-1447
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
-AND-
R.O.
Before: Justice M. G. March
Submissions heard on: July 15 and September 4, 2024 Reasons for Sentence released on: September 12, 2024
Counsel: Caitlin Downing, Crown Counsel Forest Poff-Smith, Counsel for R.O.
Introduction
1On January 9, 2024, I found R.O. guilty of one count of sexual assault contrary to s. 271 of the Criminal Code (“the Code”), one count of sexual touching contrary to s. 151 of the Code, and one count of invitation to sexual touching contrary to s. 152 of the Code following a four-day trial.
2At the invitation of Crown and defence counsel, the sexual assault conviction was stayed upon application of the Kienapple principle. [1]
3The offences were perpetrated upon J.M., R.O.’s then 12 year old step-daughter, between March 20, 2020 and September 30, 2021.
4For various reasons, chief amongst them, the time it took to have a Pre-Sentence Report (“PSR”), submitted March 14, 2024 and a Sexual Behaviours Assessment (“SBA”) prepared April 15, 2024, as well as counsel unavailability, the sentencing was delayed inordinately for some eight months. None of this is offered as criticism to anyone. It is yet again evidence of an overburdened criminal justice system in Renfrew County.
Circumstances of the Offences
5The facts as found at trial are set out in written reasons I have earlier provided (see R. v. R.O., 2024 ONCJ 424).
6Briefly, R.O. committed sexual acts upon J.M. on varying occasions as follows:
a) he fleetingly touched her breasts numerous times over her clothing, and on a few occasions, under as well making skin on skin contact,
b) he attempted to and managed once to place his hand on her vagina over her clothing, and
c) he invited her to allow him to place his penis inside her vagina if he paid her $1000.00.
7J.M. pleaded with R.O. repeatedly to quit what he was doing to her. She told him she would “tell”, if he did not. He would then promise to stop the unwanted sexual touching; however, he would recommence his abuse of J.M. within hours or days later.
8Crown counsel filed as Exhibit 1 on the sentencing an undated Victim Impact Statement (“VIS”) from J.M. It is clear that J.M. continues to be profoundly affected by R.O.’s invasion of her sexual integrity. In the VIS, she stated:
a) she avoids older men at family events, and in public,
b) she hides in her room a lot,
c) she can be “flinchy” at times,
d) she does not wish to be hugged or touched in certain ways,
e) she has to explain to family and friends why she does not want to be touched,
f) she suffers panic attacks when she has flashbacks of the incidents,
g) she finds it hard to focus on schoolwork causing her to fall behind,
h) she experiences episodes of anger and sadness in consequence of what has occurred to her,
i) she finds it hard to trust people questioning in the back of her own mind whether they want something from her,
j) she cries often and is less “social” and “bubbly”,
k) she no longer feels comfortable wearing a bathing suit and going swimming,
l) she has a hard time showering,
m) periodically, she feels shame, embarrassment and as though she is to blame for what has occurred,
n) every two weeks, she attends therapy sessions with a counsellor, and
o) she takes prescription medication to help her to sleep.
9In essence, J.M. feels violated. Her innocence as a child was stolen. She worries about future contact with R.O. Her mother, K.P., continues to engage in a romantic relationship with R.O.
10As set out in R. v. Friesen, 2020 SCC 9, the benchmark case of the Supreme Court of Canada (“SCC”) guiding lower courts on the sentencing principles to be applied and approaches to be taken on the available evidence in child sexual abuse cases, I must act on the following direction:
85When possible, courts must consider the actual harm that a specific victim has experienced as a result of the offence. This consequential harm is a key determinant of the gravity of the offence (see M. (C.A.), at para. 80). Direct evidence of actual harm is often available. In particular, victim impact statements, including those presented by parents and caregivers of the child, will usually provide the “best evidence” of the harm that the victim has suffered (R. v. Gabriel (1999), 137 C.C.C. (3d) 1 (S.C.J. Ont.), at p. 11). Prosecutors should make sure to put a sufficient evidentiary record before courts so that they can properly assess “the harm caused to the child by the offender’s conduct and the life-altering consequences that can and often do flow from it” (Woodward, at para. 76).
Circumstances of the Offender
11At present, R.O. is 39 years old. He has no criminal record. He is a first-time offender.
12The author of his PSR chronicled that R.O. was born in Scarborough but raised in the Trenton area. He commented that he “grew up poor” and did not have a great memory of childhood. He was unsure as to why his recollection of it was unclear.
13At the young age of 16, he moved to Barrie to accompany a girlfriend who was attending college there. He stayed for a couple of years but dropped out of high school in order to work full time. As he put it, he was making “good money”. He could not manage both work and school.
14Eventually, he moved to Ottawa when his girlfriend changed colleges. His relationship with her ended after spending approximately 6 years together. They both wanted to go in different directions in life, he explained.
15He then met his wife, J.O., at age 21. They married in either 2012 or 2013. He told the author of his PSR that his wife and he “did not spend a single day apart until he joined the military at age 27.” J.O. and he had four daughters together, aged 15, 14 and twins 8, at the time the PSR was prepared. His wife was always a “stay at home mom” to the children.
16In August 2021, his wife was tragically killed in a car accident. She had their daughters with her at the time. One of the girls was seriously injured.
17He claimed that his current partner, K.P. and he were strictly friends while his wife, J.O., was alive. K.P. moved in with his wife, his daughters and him along with her daughter, the victim, J.M., before his wife died. After J.O. passed away, K.P. and he discussed starting into an intimate relationship. They did so and remain together to date.
18To the contrary, the offender, R.O., reported to the author of his SBA, Dr. Jonathan Gray, a forensic psychiatrist, that shortly after K.P. moved in with his family, he came home from work one evening to find his wife, J.O., and K.P. in the shower together. This led to a discussion, and the three of them agreed to share a bed together, as well as engage in sexual relations as a group. Up to the time of J.O.’s death in August 2021, R.O. told Dr. Gray that K.P., J.O. and he had group sexual relations on a nightly basis.
19R.O. expressed concerns to the author of his PSR about the devastating impact the loss of his employment with the military as an “Aircraft Structures Technician” at Garrison Petawawa would have upon his ability to support his dependents. He loves his job. He is a valued member of the military. His direct supervisor described him as “a hard worker who contributes significantly to the squadron.”
20The author of his PSR observed that R.O. expressed “no remorse and did not accept responsibility for these charges, advising . . . that they did not happen.”
21Following his wife’s death, R.O. was transferred to a military base in Borden. Understandably, he did not cope well while cut off from contact with K.P. and his daughters. As if intoxicated by alcohol one evening, he began sweating and feeling as though the room he was in was spinning. He sought help the next day. His chain of command had apparently not been advised of his wife’s recent passing. R.O. was then seen by a medical unit, prescribed escitalopram and cyclobenzaprine to treat his anxiety, and sent home shortly thereafter.
22R.O. reported to the author of his PSR that neither alcohol nor cannabis were problematic for him. They have never impacted his employment. Nor has he required any support or treatment for alcohol or drugs. Nor did any source contacted by the PSR author express concern for R.O.’s use of substances.
23Although he sought mental health support through the military following his wife’s death in August 2021, it was not until the end of 2023 that R.O. was able to begin seeing a psychologist. At the time of preparation of the PSR, he continued to meet weekly with this clinician.
24R.O. also reached out to his chaplain at Garrison Petawawa. The PSR author spoke to this individual, who advised that “he has never had to provide so much ministry support to one person in such a short period of time.” Further, the chaplain described R.O. as “genuine, a caring father and a hard worker”. The chaplain added, “If the charges are true, it simply does not make sense to [me].”
25A close friend of R.O., who was present in Court with him and aware of the findings of guilt made against him, shared the chaplain’s view that R.O. was “innocent” and “wrongfully accused”. The friend characterized R.O. as a “great guy, someone who loves unconditionally and would help anyone if they needed it.”
26Another friend spoke to the author of the PSR of R.O. as being “very patient, honest to a fault, and just a solid guy all around”. This friend had the “highest level of respect” for R.O. She knew him for seven years. She described what the victim, J.M., said R.O. did to her as a “terrible, terrible lie”. She speculated that J.M. was trying to get back at her mother for leaving her father for R.O. She added that J.M. had a history of lying.
27The chaplain and the friends wondered if there was a way that R.O. could maintain his employment with the military.
28K.P., the mother of J.M. and the current partner of R.O., informed the PSR author that R.O. and she have known each other for a period of nine years, but had only been romantically involved for approximately a year to a year and a half. K.P. felt incredible stress over the course of time the charges were outstanding before the Court. She lamented being stuck in the middle. She wanted to support both her daughter and her partner, but she had not seen her daughter since the last Court appearance. She understood that her daughter does not want to have any contact with her at this point.
29K.P. did not draw to the attention of the PSR author any concerning sexual interests or behaviours exhibited by R.O. in their time together.
30She also informed the PSR author that she is employed full-time. In the event that R.O. is incarcerated, she would remain in their home and care for “the girls”.
31As pastimes, R.O. enjoys hunting, custom leatherwork, woodworking, forging and blacksmithing, motorcycles, wake boarding and other watersports. He shares these hobbies with his children and schools them in them.
32R.O. is also a bird enthusiast, having eight such pets in his home. Caring for the birds is an activity the whole family is engaged in.
33In his SBA, Dr. Gray commented that R.O. categorically and repeatedly denied committing any of the offences for which he was found guilty. He stated that he never touched J.M.’s breasts or crotch area. Nor did he ever offer her money in exchange for sexual intercourse. R.O. contended that the house they all shared was too crowded to allow for the opportunity and privacy necessary for him to have sexually touched J.M.
34R.O. told Dr. Gray that he had also tried to arrange for counselling for J.M. R.O. ventured that a person who was abusing a child would never do such a thing for fear of the inappropriate, sexual touching being revealed to the counsellor.
35During his interview with Dr. Gray, R.O. became tearful at one point when talking about his anxiety over what would happen to his children, if he were incarcerated.
36Dr. Gray commented as well that R.O. tended to be loquacious. However, when redirected, he was able to give more succinct answers.
37In terms of his sexual history, R.O. shared with Dr. Gray that he had sex daily with the girlfriend he had from ages 16 to 21, as well as with his wife of 18 years, J.O. Notwithstanding, R.O. believed that his sex drive was likely lower than average for someone his age. He reported that it had decreased with J.O.’s death, and further still after criminal charges were laid against him.
38R.O. pointed out that he always dated women who were slightly older than he was. He preferred older girls even when he was in high school.
39He only watched pornography on rare occasions involving content with women who appeared to be in their 20s. He adamantly denied any sexual interest in prepubescent or pubescent females.
40Upon biochemical laboratory testing, R.O.’s testosterone level was found to be within the average range for a man of his age. However, Dr. Gray noted that “his level of luteinizing hormone, the hormone that stimulates the release of testosterone, was mildly elevated.” Dr. Gray quickly added that this finding was unlikely to have any “clinical significance”. This was so because “his hormonal profile suggests that his offences were not influenced by hypersexuality generated by an excess of testosterone.”
41Testing also revealed that R.O. did not appear to have any indicators suggestive of problems with alcohol or drug misuse. He showed no inclination towards impulsivity. He did not endorse any of the 38 enumerated statements in the Bumby Cognition Scales typically made by known sex offenders against children. On the Paulhus Deception Scale, R.O.’s results did not demonstrate that he was tailoring his responses to please his assessor.
42When subjected to phallometric testing, R.O.’s scores did not reach “the level of clinical significance” in response to any videotaped sex scenes, slides or audio recordings played or shown to him from any age or gender category. His phallometric profile was one of a “low responder”. There were no test results, which could offer evidence to support a paraphilic diagnosis.
43Using the Static-99 and Static-99R sex offender risk assessment tools, Dr. Gray determined that R.O. scored a 0 and was in the second lowest of five ascending risk categories for sexual or violent re-offence (Level II). In other words, compared to other convicted Canadian sex offenders, R.O.’s relative risk of sexual or violent re-offence would be at the 18.7 percentile. Approximately 76.1% of Canadian sex offenders would have a higher score, and therefore a higher relative risk of re-offence than Mr. O’Brien, while 10.3% would have the same score, and 13.6% would have a lower score, and therefore a lower relative risk. According to the risk tables, approximately 2.8% of sex offenders with a score of 0 re-offended with another sexual or violent offence within five years.
44Given Dr. Gray’s awareness of the support R.O. was receiving from his interviewed friends and the military chaplain, Dr. Gray opined that their denials similar to those of R.O. regarding the index offences could potentially act as enabling influences for future risky behaviour. Nevertheless, Dr. Gray concluded that the sexual activity engaged in by R.O. with his stepdaughter, J.M., was “opportunistic sexual touching”.
45Dr. Gray went on to find that most individuals will transition down to Level I (Very Low Risk) to reoffend, if appropriate correctional strategies are provided, or should they remain offence free in the community for five years.
46To conclude, Dr. Gray found that there was no evidence in support of a psychiatric disorder in the mood, anxiety, or psychotic categories as defined in the Diagnostic and Statistical Manual, 5th edition (DSM-5) for R.O. However, Dr. Gray elaborated upon his opinion regarding diagnoses, or the lack thereof, as follows:
“Despite the lack of strict diagnostic clarification, it is clear from the offences that he is capable of acting out on sexual interests toward 12 and 13-year-old girls. It was not just one incidental touch, but a pattern of sexual acting out against her over time, judging by the facts accepted at court.”
47Overall, Dr. Gray assessed R.O.’s risk of committing another sexual offence in future as below-average and “low in a general sense”. He added that “only 6.1% of sexual offenders similar to [R.O.] in risk-relevant factors reoffend with another sexual offence within 5 years of release from custody.” Dr. Gray did not appear overly concerned with R.O.’s continued denial of the offences for which he was found guilty. He stated in his SBA:
“Perhaps counterintuitively, denial of offenses has not been found as a factor that independently increases the risk of sexual offender reoffence.”
48Dr. Gray went on to find that:
“[R.O.] would not benefit from sexual offender treatment because his risk is too low to meaningfully benefit from it. His risk may actually increase, if put into groups with other men who are antisocial in outlook and at a higher risk to reoffend.”
Crown’s Position on Sentence
49Crown counsel seeks a period of incarceration of three years. Denunciation and deterrence are the salient sentencing principles to be taken into account by the Court. The provision of a conditional sentence ought not to be considered as an option. This is far from the exceptional case where a conditional sentence could be imposed. The moral blameworthiness of J.O. is simply too high.
50R.O. abused the position of trust he held over his victim, J.M. Although the sexual touching was “fleeting” in all instances, it involved a proposition for more (i.e. sexual intercourse in exchange for payment of $1000.00). Fortunately, the victim turned the offender down. The Crown underlined nevertheless how pernicious the offer of such a handsome sum would be to a 12-year-old girl. It took on the element of luring. It moved the Crown’s position on sentence out of the reformatory and into the penitentiary range.
51The Crown also submitted that the offences for which R.O. was found guilty were the sort typically committed behind closed doors away from the prying eyes. For that reason alone, the Court should not overemphasize the value of good character evidence led at R.O.’s sentencing and his reputation in the community. (see R. v. Profit, [1993] 3 S.C.R. 637)
52Crown counsel pointed out, of course, that the offender’s right to maintain his innocence is not an aggravating factor, but the absence of remorse is relevant to the issues of his prospects for rehabilitation, his insight, or lack thereof, into the nature of his criminal behaviour, and his need for specific deterrence.
53The Crown hastened to add the offences were committed over an extended period of time – several months, in fact - which is a clearly aggravating factor. R.O. was relentless. He continued to touch J.M. inappropriately in the face of her protestations that she would tell someone.
54Under section 161 of the Code, the Crown requested that, for a period of 10 years, R.O. NOT:
a) attend at a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a day care centre, school ground, playground or community centre,
b) be within 500 m of J.M.’s dwelling house, or any other place she ordinarily resides,
c) seek, obtain or continue any employment, whether or not the employment is remunerated, or become a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16,
d) have any contact - including communicating by any means -with a person who is under the age of 16 years unless the person is R.O.’s own child, or the person is accompanied by a parent, guardian or adult who is aware of the offences for which R.O. was convicted.
55By way of further ancillary orders, the Crown submits that R.O. be required:
a) to provide a sample of his DNA to the authorities under section 487.051 of the Code,
b) to comply with the provisions of the Sex Offender Information Registration Act 2007, c. 5, s. 12 for a period of 20 years under s. 490.012 of the Code,
c) to be prohibited from possessing any weapon or thing as set out in s. 109 of the Code for a period of 10 years, and
d) to abstain from communication directly or indirectly with J.M. while serving his sentence by virtue of s. 743.21 of the Code.
Defence Position on Sentence
56Defence counsel submits that the proper range of sentence in the post-Friesen era [2] for R.O. would be two years less a day imprisonment to be followed by three years of probation. To impose such a sentence would ensure that R.O. remains under supervision of the Court for a period just shy of five years. In this manner, greater protection of the public can be achieved.
57Although the defence did not strenuously argue the point, R.O.’s counsel asked the Court to see its way through to allowing R.O. to serve the carceral component of his sentence in the community. The offender had demonstrated himself to be a good candidate for compliance with service of a sentence of imprisonment in his community by abstaining from breaching any of his conditions of bail over the course of the entire time he had awaited trial and sentence. Nor did R.O. oppose any efforts by Family and Children’s Services of Renfrew County, the agency entrusted with protection of the remaining children living under his roof, to investigate and to manage any risk for the children who continued to reside within his home.
58R.O. has also proactively sought out counselling for his emotional torment and grief arising from the untimely death of his wife of 18 years, J.O. Through no fault of his own, he was not able to secure this form of help until October 2023.
59It cannot be overemphasized, the defence contended, that R.O. is a first-time offender, who has a high prospect of full rehabilitation and reintegration into his community. His risk of reoffending was assessed by Dr. Gray to be low, and “very low”, if he receives appropriate programming while serving his sentence.
60Defence counsel drew my attention to paragraph 124 of Friesen, where the SCC pointed out:
“The offender’s likelihood to reoffend is clearly also relevant to the objective of rehabilitation in s. 718 (d) of the Criminal Code. Courts should encourage efforts toward rehabilitation because it offers long-term protection (Gladue, at para. 56). Rehabilitation may also weigh in favour of a reduced term of incarceration followed by probation since a community environment is often more favourable to rehabilitation than prison. (see Proulx, at paras. 16 and 22)”
61Dr. Gray also supported R.O.’s intention to continue his relationship with his military counsellor.
62The defence urged me to consider what Dr. Gray stated in his SBA about the ongoing denial of his guilt in the face of conviction. Ongoing denial has not been found to be a factor that independently increases the risk of sexual reoffending. Indeed, the author of the PSR pointed out that R.O. could be subjected as a condition of probation to attend an Orientation Sexual Offending Relapse Prevention Program, where referrals are made regardless of the offender’s level of motivation to address their behaviour, and where there has been no acceptance of responsibility for their crimes. The Program is delivered in ten, 1 - 1.5 hour sessions. It is offered in reformatories or as a component of probation.
63Even though the principles of denunciation and deterrence are primary, restraint must still be exercised in accordance with the principles set out in R. v. Priest (1996), 95 O.A.C. 1 (Ont. C.A.).
64R.O. had a long career in the military where he was an integral component of a squadron. For virtually his entire life, he has contributed to his community in a prosocial manner.
65Defence counsel conceded that the imposition of sentence imposed by this Court would put an end to an important and crucial aspect of R.O.’s life - his military career. It would eradicate the means by which R.O. has supported his children and partner for many years.
66Defence counsel took no issue with any of the ancillary orders sought by the Crown with one small proviso, namely, that an exception be made not just for J.O.’s own children, but rather any other child under 16 years of age, who is in the company of his or her parent, guardian or another adult aware of the nature of J.O.’s criminal convictions.
67Given the likelihood of the imposition of a lengthy sentence for R.O., defence counsel asked this Court to waive the imposition of victim fine surcharges.
Analysis
68In arriving at a fit disposition for R.O., I must, of course, apply the relevant principles of sentencing now codified at sections 718 to 718.3 of the Code. Sentencing is always a unique, individualized exercise. No two cases are completely alike. Nor are any two offenders completely the same.
69R.O.’s sentence must be an appropriate one upon consideration of the circumstances of the offences he committed as well as his personal circumstances.
70Most importantly, the punishment I impose must be proportionate to the seriousness of his offences and the degree of his responsibility for them.
Denunciation and Deterrence
71The principles of denunciation and deterrence are paramount when one sentences an adult who engages in sexual acts with children. In Friesen, the Supreme Court Canada (“SCC”) could not have been any clearer in the following passages:
88Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child. In assessing the degree of responsibility of the offender, courts must take into account the harm the offender intended or was reckless or wilfully blind to (Arcand, at para. 58; see also M. (C.A.), at para. 80; Morrisey, at para. 48). For sexual offences against children, we agree with Iacobucci J. that, save for possibly certain rare cases, offenders will usually have at least some awareness of the profound physical, psychological, and emotional harm that their actions may cause the child (Scalera, at paras. 120 and 123-24).
89All forms of sexual violence, including sexual violence against adults, are morally blameworthy precisely because they involve the wrongful exploitation of the victim by the offender — the offender is treating the victim as an object and disregarding the victim’s human dignity (see R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at paras. 45 and 48). As L’Heureux-Dubé J. reasoned in L. (D.O.), “the occurrence of child sexual abuse is one intertwined with the sexual abuse of all women” precisely because both forms of sexual offences involve the sexual objectification of the victim (p. 441). Courts must give proper weight in sentencing to the offender’s underlying attitudes because they are highly relevant to assessing the offender’s moral blameworthiness and to the sentencing objective of denunciation (Benedet, at p. 310; Hajar, at para. 67).
90The fact that the victim is a child increases the offender’s degree of responsibility. Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable (R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 153). As L’Heureux-Dubé J. recognized in R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132, “[a]s to moral blameworthiness, the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions” (para. 31, quoting R. v. L.F.W. (1997), 155 Nfld. & P.E.I.R. 115 (N.L.C.A.), at para. 117, per Cameron J.A. (“L.F.W. (C.A.)”)). Offenders recognize children’s particular vulnerability and intentionally exploit it to achieve their selfish desires (Woodward, at para. 72). We would emphasize that the moral blameworthiness of the offender increases when offenders intentionally target children who are particularly vulnerable, including children who belong to groups that face discrimination or marginalization in society.
72The SCC went on to add:
101Parliament’s decision to prioritize denunciation and deterrence for offences that involve the abuse of children by enacting s. 718.01 of the Criminal Code confirms the need for courts to impose more severe sanctions for sexual offences against children. In 2005, Parliament added s. 718.01 to the Criminal Code by enacting Bill C-2. In cases that involve the abuse of a person under the age of 18, s. 718.01 requires the court to give “primary consideration to the objectives of denunciation and deterrence of such conduct” when imposing sentence.
Separation from Society
73Offenders must be separated from society where necessary. Clearly, incarceration must be the penal sanction of last resort.
74Unfortunately for R.O., it is the only sanction which can adequately pay respect to the principles of denunciation and deterrence, and which must be reflected in the sentence this Court must craft. A conditional sentence would not be consistent with the fundamental purpose and principles of sentencing as referred to in s. 742.1 of the Code.
75As explained by Zarnett J.A. in R. v. T.J., 2021 ONCA 392, s. 718.01 changed the approach a sentencing judge must take in considering the codified principles of sentencing. He stated:
27The provisions of s. 718.01 not only mean that denunciation and deterrence must be the primary objectives of the sentence, but that “it is no longer open to a sentencing judge to elevate other sentencing objectives, for example rehabilitation, to equivalent or greater priority than denunciation and deterrence in determining a proportionate sentence”. These other objectives may be given significant weight, but not priority or equivalency: Lis, at paras. 47-48, 53; Friesen, at paras. 101-4.
28As the court in Friesen concluded, prioritizing the objectives of denunciation and deterrence “confirms the need for courts to impose more severe sanctions for sexual offences against children”: at para. 101. That need is directly related to the form of sanction required, as separation from society reinforces and gives practical effect to denunciation and deterrence: at para. 103.
Rehabilitation
76R.O. needs some form of rehabilitation, but without an acknowledgement by him of any criminal wrongdoing, I do not know what, if any, real assistance can be offered to him.
Promotion of a Sense of Responsibility and Acknowledgement of Harm
77R.O. wishes to maintain his innocence. That is his right. However, it does not bode well for his rehabilitation.
78I can only hope that J.O. will, in future, take the time to reflect on his conduct and understand that what he did was seriously criminal in nature.
Aggravating and Mitigating Circumstances
79I find the following features of the offences committed by R.O. to be aggravating:
a) He abused the trust placed in him by his new partner, K.P., and his stepdaughter, J.M. to treat and care for J.M. as a 12 year old child and to protect her from harm,
b) his offer to pay J.M. to have sex with him was particularly calculating and solicitous, and
c) his sexual touching of J.M., although fleeting, was protracted over the course of several months.
80The mitigating factors are as follows:
a) R.O. is a first-time offender with a scientifically assessed, low risk to reoffend,
b) R.O. has proven himself to be a hardworking, gainfully employed and contributing member of society for his entire adult life, and
c) R.O. has the ongoing support of his partner and friends who will assist with his rehabilitation.
Parity
81Section 718.2 (b) of the Code provides:
“A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
The Case Law
82Crown and defence counsel drew my attention to numerous authorities attempting to assist the Court in identifying the appropriate range for the sentence which ought to be imposed in R.O.’s case. Although helpful in terms of the relevant principles of sentencing to be considered and applied, almost all were readily distinguishable on their facts.
83I must caution myself as well not to place too great an emphasis on any case decided pre-Friesen. Sentencing judges must never lose sight of the ever-changing landscape that is the criminal law. It has shifted on a seismic scale since 2020 when Friesen was decided by the SCC.
84Below I will refer to a few of the cases which I find to be particularly helpful to my task of arriving at a proper sentence for R.O.
85One such case was very recently decided by my colleague, Fiorucci J. In R. v. S.C., 2024 ONCJ 206, a case involving, like this one, a stepfather sexually touching his stepdaughter on multiple occasions while teaching her to drive, His Honour identified the following principles of sentencing, which clearly come into play:
29Friesen provided guidance about the appropriate length of sentences for sexual offences involving children. The Court in Friesen did not set binding or inflexible quantitative guidelines, recognizing as Moldaver J.A. did in R. v. D.(D.) (2002), 58 O.R. (3d) 788 (Ont. C.A.), at paragraph 33, that “trial judges must retain the flexibility needed to do justice in individual cases”.
30However, Friesen sent a clear overall message. At paragraph 114, the Court stated:
That message is 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. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim.
31Sections 718.2(a)(ii.1) and 718.2(a)(iii) list as aggravating circumstances the fact that an offender abused a person under the age of eighteen years and evidence that an offender abused a position of trust or authority in relation to the victim. At paragraph 129 of Friesen, the Supreme Court recognizes that “[a]n offender who stands in a position of trust in relation to a child owes a duty to protect and care for the child that is not owed by a stranger” and that, “[t]he breach of the duty of protection and care thus enhances moral blameworthiness”. Exploitation of children’s particular vulnerability to trusted adults is especially morally blameworthy: para. 129.
32At paragraph 130 of Friesen, the Supreme Court highlights “the scale and gravity of sexual violence perpetrated within the family sphere” and notes that “some authors have criticized the tendency of courts to impose similar sentences on strangers and fathers for sexual offences against children, despite the fact that sexual assaults by fathers are more likely to occur on multiple occasions”.
33The Court provides the following guidance at para. 130:
We would thus emphasize that, all other things being equal, 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.
34The principle of restraint contained in ss. 718.2 (d) and (e) of the Criminal Code continues to be applicable in circumstances where the primary sentencing principles are denunciation and deterrence: R. v. Faroughi, 2024 ONCA 178, at para. 73, and R. v. A.B., 2023 ONCA 254, at para. 55. Similarly, in child sexual offences, “the sentencing judge retains discretion to consider factors mitigating moral culpability and to accord significant weight to other sentencing objectives, including rehabilitation”: R. v. C.B., 2024 ONCA 160, at para. 34; Friesen, at para. 104.
35However, Friesen instructs that s. 718.01 qualifies the Supreme Court’s “previous direction that it is for the sentencing judge to determine which sentencing objective or objectives are to be prioritized”. At paragraph 104, the Court stated:
Where Parliament has indicated which sentencing objectives are to receive priority in certain cases, the sentencing judge's discretion is thereby limited, such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority.
36S.C. was in a position of trust toward M.C.. He had been in her life since she was one year old and eventually adopted her. S.C. abused this position of trust to commit sexual offences against M.C. when she was 14 and 15 years old, breaching his duty to protect and care for her. The sexual abuse was perpetrated over a prolonged period. It involved multiple driving incidents where S.C. had M.C. sit on his lap while he had an erection. He exploited his stepdaughter’s desire to learn how to drive to repeatedly take her out alone, usually at night, for his own sexual gratification. It is further aggravating that he had sexualized conversations with his stepdaughter about the erections, including his claim that it was caused by a medical condition, a request that she wear a low-cut shirt, and stating that he had masturbated before the driving to try to avoid getting an erection. S.C.’s sexual abuse of M.C. included the incident in the family home during which he used his hand to touch her leg near her pelvic bone. S.C.’s conduct was highly morally blameworthy and involved multiple incidents of sexual touching.
37In addition to the recognition of the wrongfulness and harmfulness of child sexual abuse in Friesen, s. 718.2(a)(iii.1) lists as an aggravating circumstance the fact that the offence had a significant impact on the victim, considering their age and other personal circumstances. The profound effects of S.C.’s offences are powerfully set out in M.C.’s victim impact statement. M.C. has suffered actual harm including interference with her healthy development as a child, damaged relationships with her family members, loss of trust in others including close friends and family members, difficulty developing relationships with others, mental and emotional trauma, including suicidal thoughts, and detrimental effects on her schooling. M.C.’s victim impact statement also provides insight into the potential harm that flows from these offences. Despite her efforts to heal, she knows “the scars will still be there and [she] will never truly be able to feel loved and safe without having doubts”.
38S.C. has no prior criminal record. In addition to being a first offender, he has an extensive support network, including family, friends and co-workers which increases his prospects for rehabilitation. His steady and fulfilling employment, and his engagement with pro-social associates are also indicators of his positive rehabilitative potential. S.C. is amenable to counselling, which is an additional mitigating circumstance to be considered.
39A period of incarceration will have significant collateral consequences for S.C. and his family. While S.C. is incarcerated, he will be unable to provide assistance, financial and otherwise, to his mother and his wife, who both have health issues which limit their abilities to perform household tasks. The effect of S.C.’s incarceration on his relationship with his 13-year-old son is another significant collateral consequence of S.C.’s incarceration.
40I have considered the principles of restraint and rehabilitation, and the personal circumstances of S.C., including the collateral consequences of a jail sentence. I find that a jail sentence of 2 years less a day is necessary to reflect the normative character of S.C.’s sexual offences and the consequential harm to M.C.: Friesen, at para. 33. A sentence of this duration considers the mitigating circumstances and principles of restraint and rehabilitation but ensures that denunciation and deterrence are prioritized.
86I agree with the approach taken by Fiorucci J. in S.C., and I shall likewise take into account all of the relevant principles of sentencing he set out above.
87In a similar vein, my colleague, Richardson J. in R. v. N.L., 2024 ONCJ 286 embarked upon an expansive review of sexual assault, sentencing cases. Of note, he made reference to the unreported decision of Green J. in R. v. Arman. He succinctly reviewed its facts and one of the propositions for which the case stands as follows:
112In R. v. Arman, unreported, June 27, 2022. the accused was found guilty after a trial of sexually assaulting a young woman. He used the prospect of a job to lure her to a motel room. Once at the motel room, he insisted that she drink alcohol, he touched her hands, rubbed them with Vaseline, kissed her neck, touched her stomach and tried to unzip her pants. When she tried to leave, he grabbed her hand and placed it on his genitals. He kissed her on the lips and gave her money to pay for an Uber home. Justice Green described the accused’s conduct as “predatory and reprehensible”. The trial was difficult for the complainant who had to be coaxed into the courtroom to testify. She has not been able to attend a job interview since. She reported problems with lack of focus and triggers. She stated that she had to move to a different town out of fear of seeing the accused. She has been hospitalized multiple times for mental health related issues. She had difficulty sleeping and required “heavy medication” to get sleep. She had issues with her appetite. The accused was 43. He had a difficult upbringing. As a result of the offence, the franchisor changed the locks and prohibited him from running his business, resulting in the loss of approximately $400,000. He did not have a criminal record. The Crown sought a sentence of 9-12 months. Defence sought a conditional sentence of 12 months. Justice Green found that a conditional sentence was not appropriate and imposed a sentence of eight months in custody, to be followed by two years probation. She adopted the Ontario Court of Appeal decision in R. v. Macintyer-Syrette, 2018 ONCA 706, [2018] OJ 4442 at paragraph 21, where the court stated:
A conditional sentence served in the community with individual counselling, as proposed by the appellant and supported by the Gladue reports, would not be a reasonable or proportionate sentence for this offence. This offence requires denunciation, as an affirmation of the dignity of the complainant, and no appropriate sentencing proposal or sanction, short of a custodial disposition, appears to be available.
88I agree with the reasoning of Justice Green in Arman. A conditional sentence would not sufficiently denounce the reprehensible conduct of the offender in her case, nor in the one before me. I also concur in Justice Richardson’s conclusions regarding the general principles to be gleaned from recent SCC and Court of Appeal for Ontario decisions on sentencing in sexual assault cases. He stated:
115The law of sentencing in sexual assault cases is in transition. Care must be paid with respect to older authorities or authorities which do not take into consideration the principles in cases such as Barton, Goldfinch, Friesen, AJK and Maslehati.
116In more serious cases, appellate courts have made it clear that conditional sentences for violent sexual offences are increasingly rare because of the high moral culpability of the offenders and the harm that their offences cause.
117In less serious cases, the range of sentence still allows for the imposition of a conditional sentence.
118The seriousness of a sexual assault is no longer solely determined having regard to a hierarchy or ladder of conduct with penetration judged as most serious and touching judged as less serious. While this is still a factor that needs to be considered, it is not the only factor.
119The seriousness of a sexual assault is no longer determined having regard to the nature of the relationship with stranger or acquaintance sexual assaults being considered as most serious and intimate partner violence sexual assaults considered less serious.
120The focus is on the harm that is caused and the moral culpability of the offender.
121There will always be cases where there are compelling mitigating factors that bring an offender into the range of a conditional sentence.
122This is not one of those cases.
89In R. v. N.S., 2022 ONSC 5123, Boswell J. had before him for sentencing, following a trial by judge and jury, a 31-year-old Indigenous male found guilty of two counts of sexual assault and two counts of sexual interference upon his two ‘de facto’ stepsisters. There was a significant age gap between the offender and his victims.
90The reflection taken by Boswell J. in N.S. to reach a fitting disposition for the offender, and his distillation of the sentencing principles to be gleaned from Friesen are particularly apposite to the case before me. He synopsized those principles as follows:
86In the case of sexual offences against children, the applicable range of sentence is in flux as a result of the Friesen decision. There is no doubt that the yardsticks are moving and that they are moving towards more significant sentences. It remains premature, in my view, to say with any confidence, what the post-Friesen range for sexual interference is.
87Friesen does offer guidance, however, as to where the appropriate range ought to be. At the outset of the ruling, the court emphatically instructed that sentences for offences against children must increase, saying, at para. 5:
…[W]e send a strong message that sexual offences against children are violent crimes that wrongfully exploit children's vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose 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 sentencing initiatives 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 and ongoing harm that it causes to children, families, and society at large.
88They went on to note, at para. 114, that while it is not the function of that court to set ranges, they considered it important to send the following message:
…[T]hat 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.
89The Supreme Court left no doubt that sexual offences against children are grave offences with profound and long-lasting consequences for the children victimized by them. They highlighted a number of compelling factors engaged in the sentencing process for offenders who commit sexual offences against children. These include:
(a) Sentences must recognize and reflect both the harm that sexual offences against children cause and the wrongfulness of sexual violence. Sentences must reflect the “life-altering consequences” that can and often do flow from sexual violence (Para. 74);
(b) The sentence imposed must reflect the normative character of the offender’s actions and the consequential harm to children and their families, caregivers and communities (Para. 76);
(c) The wrongfulness of the exploitation of children is always relevant to the normative character of the offender’s conduct and thus the gravity of the offence (Para. 78); and,
(d) Intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable. The use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions (Para. 90).
90Friesen directs that sentencing judges take into account a number of factors when passing sentence for an offence of sexual violence against a child. They include:
(a) The likelihood to re-offend;
(b) The abuse of a position of trust or authority;
(c) Duration and frequency;
(d) Age of the victim(s);
(e) Degree of physical interference; and,
(f) Victim participation.
91I have evidence before me regarding R.O.’s likelihood to reoffend. Dr. Gray assessed it to be “low”, and it could decrease to “very low”, assuming R.O. receives the counselling which can be offered to him, and if he follows Dr. Gray’s recommendations.
92Nevertheless, R.O.’s libido appeared quite healthy up until the death of his wife, J.O., and the laying of charges against him. The likelihood it may rebound at the conclusion of service of the imprisonment component of his sentence gives me pause.
93As stated above, the offences R.O. perpetrated upon J.M. involved a serious breach of trust. J.M. was his stepdaughter. She deserved his fatherly love and affection. Instead, he pursued her out of pure lust and propositioned her for sex.
94In terms of the duration and frequency of the sexual acts themselves, they were fleeting, but largely due to J.M.’s strength of character and resolve not to give in to his advances. R.O. was both tenacious and bold, but she resisted him unfailingly.
95It is difficult to estimate with any certainty how many times R.O. touched J.M. sexually, but the number, I venture, was not at all insignificant.
96J.M., all the while, was a child of tender years. She was only twelve. She should never have been put in the position of fighting off her then 36 year old stepfather.
97Fortunately, the degree of invasiveness was not severe. To his credit, R.O. never physically forced himself upon J.M. to the point of causing her physical harm or discomfort. Emotionally and mentally however, J.M. still bears the scars as evidenced by the language she used in her VIS to describe the lasting effect it has had on her.
98J.M. was innocent. She did nothing and legally could do nothing to incite R.O. to act out sexually as he did toward her. R.O.’s depravity was very much thrust upon her.
99The sentence I impose must and will, of course, reflect the high moral blameworthiness of R.O.’s use of his stepdaughter as an object for his sexual gratification.
A Fit Sentence for R.O. in the Circumstances of the Offences He Committed and His Personal Circumstances
100It warrants repeating that the length of time for which I will incarcerate R.O. must pay adequate respect to the principles of denunciation and deterrence.
101The impact of R.O.’s crimes were significant. A wedge has been driven between mother and daughter. It is impossible to know whether the divide created by R.O.’s offending can ever be bridged to allow mother and daughter to resume any form of meaningful relationship together in future. As explained in Friesen:
60Sexual violence causes additional harm to children by damaging their relationships with their families and caregivers. Because much sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trust relationship (R. v. D.R.W., 2012 BCCA 454, 330 B.C.A.C. 18, at para. 41). If a parent or family member is the perpetrator of the sexual violence, the other parent or family members may cause further trauma by taking the side of the perpetrator . . . (see “The ‘Statutory Rape’ Myth”, at p. 292).
102Upon consideration of all relevant principles of sentencing and their purpose, I shall impose a sentence of two years less a day for the sexual interference with J.M., and two years less a day for the invitation to sexual touching be served concurrently. If not for the fact that R.O. is a first-time offender deserving of the exercise of the restraint principle, I would have had no qualms sending him off to the penitentiary.
Conclusion
103Upon assessment of all relevant provisions of the Code, I must jail R.O. for a period of two years less one day going forward from today’s date. I find I can go no lower if I am to adequately address the pressing principles of sentencing in this case, primarily deterrence and denunciation. A conditional sentence would simply not do justice to the paramount principles of denunciation and deterrence, nor would such a sentence recognize R.O.’s high level of moral blameworthiness.
104Upon his release from custody, I shall place R.O. on probation for a period of three years on the following terms:
a) report to a probation officer within 72 hours of his release from custody and thereafter as required,
b) reside at a residence approved by his probation officer and not elsewhere,
c) attend for any assessment and counselling recommended by his probation officer including for sexual behaviours and sign any releases required of him by his probation officer to ensure he is following up on any such assessment and counselling recommendation made for him,
d) abstain from any contact directly or indirectly with J.M.,
e) not attend within 500 metres of her place of employment, schooling, worship, or any other place he knows her to frequent,
f) keep the peace and be of good behaviour.
105By way of ancillary orders, R.O. shall be required:
a) to provide a sample of his DNA to the authorities under section 487.051 of the Code,
b) to comply with the provisions of the Sex Offender Information Registration Act 2007, c. 5, s. 12 for a period of 20 years under s. 490.012 of the Code,
c) to be prohibited from possessing any weapon or thing as set out in s. 109 of the Code for a period of 10 years, and
d) to abstain from communication directly or indirectly with J.M. while serving his sentence by virtue of s. 743.21 of the Code.
106Under s. 161 of the Code, for 10 years, I will prohibit R.O. from:
a) attending at a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a day care centre, school ground, playground or community centre,
b) being within 500 m of J.M.’s dwelling house, or any other place she ordinarily resides,
c) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming a volunteer in a capacity that involves being in a position of trust or authority towards persons under the age of 16, and
d) having any contact - including communicating by any means - with a person who is under the age of 16 years unless the person is his own child or the person is under 16 and in the company of his or her parent, guardian, or another adult aware of the nature of R.O.’s criminal convictions.
107Lastly, I will waive the imposition of any victim fine surcharge for R.O. I find it will cause him undue hardship to face any type of monetary penalty upon his release from custody, given the significant length of time he is to be incarcerated and the financial struggles he will likely face upon release.
DATED: September 12, 2024
March, M.G., J.
Endnotes
1See R. v. Kinnear, 2005 ONCA 661 at paras. 27 – 40; and R. v. Hason, 2024 ONCA 369 at paras. 76 – 79. Essentially, where the same transaction gives rise to two or more offences with substantially the same elements and an accused is found guilty of more than one of those offences, that accused should be convicted of only the most serious of the offences.