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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
Ontario Court of Justice
DATE: 2025-02-04
COURT FILE No.: Pembroke 20-1592
BETWEEN:
His Majesty the King
— AND —
J.S.
Before Justice J.R. Richardson
Heard on November 20, 2024
Reasons for Judgment released on February 4, 2025
Counsel:
Goher Irfan — counsel for the Crown
Daniel Howard — counsel for the accused
Introduction
1On March 19, 2024, I found J.S. guilty of one count of assaulting J.M., contrary to section 266 of the Criminal Code, and one count of sexually assaulting J.M., contrary to section 271 of the Criminal Code.
2On April 15, 2024, I released my reasons for those convictions and my reasons for acquittal on other charges that were before the Court. Those reasons are reported at R. v. J.S., 2024 ONCJ 185.
3The issue I must now decide is what is the appropriate sentence.
The Facts
4The facts of both incidents are thoroughly described in the trial judgment.
5J.S. and J.M. are step-brother and step-sister. The incidents occurred in Renfrew County, Ontario after J.S. came to live with J.M.’s family. J.S. had been estranged from his father, S.S., for a lengthy period of time. They became reacquainted when he was living in Nova Scotia.
6S.S. invited J.S. to come and live with him and his family, which included his wife A.R. and his daughters J.M. and J.Z.S. At first, J.S. lived with the family in Ottawa. They then became estranged again.
7J.S. participated in some treatment at Harvest House, which is an Ottawa social agency that assists people with addictions. One year, just after Christmas, J.S. lost his Harvest House placement and S.S. invited J.S. to come live with the family.
8J.S. resided in the basement of S.S.’s, A.R.’s, J.Z.S.’s and J.M.’s home in Killaloe, Hagarty and Richards Township. The two incidents that led to the conviction happened here.
9J.S. and J.M. did not know one another and were working on establishing their relationship when the incidents took place.
10The assault is the first of a number of incidents which J.M. testified about at trial. J.M. and J.S. were playing a video game. They had a conversation about the videogame in which J.M. called J.S. “a fag” and told him that he was “gay”. This caused J.S. to become angry and put his hands around J.M.’s neck. He demanded that she tell him that she was sorry. J.M. stated that she could barely breathe.
11The sexual assault incident occurred days after a Hide and Seek game in which J.M. accidentally touched J.S. in the dark. J.S. demanded that J.M. apologize for touching him and told her that he wanted her to express how sorry she was. J.M. offered to give J.S. a hug, but he said it was not good enough. When she asked him what action on her part would satisfy him, J.S. asked her to strip in front of him.
12J.M. took her pants off and asked J.S. if that was good enough. J.S. said it was not good enough and complained that all he could see was her legs. J.M. then removed her pants and quickly bent over in front of him.
13Even though this incident did not involve J.S. actually touching J.M., I found that it constituted a sexual assault. I wrote at paragraphs 437 through 439 that:
….The whole point of the exercise was to exploit the sexuality of J.M., affront her sexual integrity and dignity, sexually humiliate her and demonstrate to her that she was sexually subservient to him.
J.M. was much younger, smaller and vulnerable. When this incident took place, she was home with J.S. alone. Requiring her to take her clothes off while he watched in order to demonstrate to him that she was sorry for an earlier act where she accidentally touched him in the course of a game is obviously an act of power, aggression and control.
J.M. testified that the exposure of her vaginal area was very brief. She then ran upstairs and cried. She tried to call her boyfriend but she couldn’t stop crying. When the Crown asked her how she felt, she said she was disgusted. In my view, this more than amply demonstrates the fact that J.M. was sexually humiliated.
The Victim Impact Statement
14J.M. filed a very short Victim Impact Statement. She expressed feeling relieved and being more at ease because she saw the Judgment in this case as “justice for what he has done”.
15She stated that as a result of this offence, she has trust issues, social anxiety and she experiences nightmares. She despises the accused’s first name and essentially cringes when she hears it.
16She expressed “heart ache” because her father, S.S., must suffer with the knowledge of what J.S. did.
The Criminal Record
17J.S. has a three-page criminal record which commences in 2008 with convictions for the following offences:
- Break and Enter (three convictions);
- Fail to Comply with Disposition under the Youth Criminal Justice Act (one conviction);
- Possession of a Weapon (one conviction);
- Uttering threats (two convictions);
- Assault (five convictions);
- Fail to Comply with a Recognizance (one conviction);
- Fail to Attend Court (one conviction);
- Fail to Comply with a Probation Order (one conviction);
- Failing to Comply with an Undertaking (one conviction); and
- Mischief Under $5000 (one conviction).
18The longest sentence he has served is two years less one day in 2008. Every disposition has involved a probation order, often for a lengthy period of two or three years.
19Despite the length of his record, J.S. has never received a conditional sentence.
20There are two gaps in his record. The first one is between 2008 and 2016. For about two years of that period, J.S. would have been either in jail or on parole. For a further three years, he would have been on probation. The second gap is between March 2016 and March 2020. For about two years of that period, J.S. was on probation.
21J.S.’s record discloses convictions in Annapolis Royal, Nova Scotia, Ottawa and Pembroke.
22It must be remembered that the charges that J.S. has been convicted of in this case occurred before some of the convictions on his record. Still, the record discloses a significant problem with assaultive and threatening behaviour.
The Gladue Report
23A Gladue Report, dated September 26, 2024, was entered into evidence.
24J.S. is an Algonquin from the Pikwakanagan First Nation. He inherits his Indigenous ancestry from his mother. S.S. is not Indigenous.
25J.S.’s mother now resides in Nova Scotia. J.S. has limited contact with her; they speak through social media.
26J.S. was six when his parents separated. There was one other child of their union, M.S. M.S. apparently also lives in Nova Scotia and J.S. is estranged from him. He described their relationship to the Gladue writer as “rivals”.
27When J.S.’s parents separated, his mother moved to Nova Scotia with his step-father. J.S. did not see S.S. He told the Gladue writer “that’s the way my mom wanted it”.
28If there is one word that describes J.S.’s family, it would be “dysfunctional”. J.S. told the Gladue writer:
I was always an outsider. I’ve never been able to stay close or even relatively close with family. A lot of the family has ended up falling apart when we moved away. There’s also been this big family war going on for years where certain people in the family don’t want to see other people and it got ridiculous, so nobody really talks to each other.
29J.S. complained that his father S.S. was a drunk and drug addict. He also complained that S.S. physically abused his mother. He stated that his mother went to a shelter with his brother M.S. when J.S. was six. He stated that his mother left him behind. He reported that when his father got home, he was abusive toward J.S.
30While I accept that this family was dysfunctional, I note that none of this background has been confirmed by collateral contact. Given that S.S. was a witness at trial (and may have been a complainant against J.S. on other charges himself) I am reluctant to rely on J.S.’s uncorroborated reports concerning S.S.
31J.S. complained that the community he lived in in Nova Scotia was nice, but there was not a lot for children to do. He described his step-father as strict but not abusive. J.S. stated that he was in foster care when he was 13 because he rebelled. He did not like his foster parents because they were “strangers” and they were too religious for his liking. He complained that his parents cut him off and but for one short-lived reunion, he did not return. His step-father got a “peace order” against him.
32J.S. reported that he had difficulties throughout school. He reported frequent detentions and suspensions. He stated that he and M.S. were victims of racism because they were Indigenous. He has difficulties with paying attention and was diagnosed with ADHD when he was nine. He was prescribed Ritalin, which he did not like, and he stopped taking it as soon as he got away from his parents.
33J.S. stated that he dropped out of Grade 9. He ended up in Halifax where he got in trouble with the law and was homeless until he was 16. He stated that he completed up to the end of Grade 11 when he was in jail in Halifax.
34When J.S. was 21 years old, he returned to the Ottawa area and reconnected with his father through social media. He reported living with his father for about six months until tension developed over marihuana use and drinking. He was homeless and ended up at Harvest House.
35He has either been supported through Ontario Works or worked as a roofer or in a pizzeria. I note that I also heard some evidence about J.S. attending programming and work programs at trial.
36With respect to substance abuse, J.S. states that his father is addicted to alcohol, marihuana and painkillers. As I have set out below, there is some evidence at trial which supports the proposition that his father was a regular drinker and a user of marihuana. He stated that his mother and step-father used marihuana. He did not report that they had issues with alcohol.
37J.S. states that in addition to using marihuana, he has been addicted to morphine and oxycontin. He also has had difficulty with alcohol. His friend K.N. reported that when J.S. is drinking, he “is a completely different guy” and has to shut him out because she does not want him hurting her children.
38She has tried to help him access mental health and addiction for over eight years. He refuses to attend anger management. She stated, “…if he took alcohol out of his system completely, [J.S.] would be a great guy. When he’s not drinking he is absolutely phenomenal.” K.N. reports that J.S.’s addiction to alcohol and drugs is getting better.
39Despite his apparent reticence to attend treatment in the past, J.S. told the Gladue writer that he was prepared to do “whatever it takes”. He is motivated by his relationship with K.N. and her children.
40With respect to his mental health, J.S. reported feeling depressed throughout his life. He reported self-harming when he was a teenager. He stated that there was one attempt to take him to a hospital to get mental health support when he was 14 which “didn’t go so well”.
41J.S. stated that he was prescribed medications to treat his depression, which he attempted to overdose with. This occurred while he was living with his foster family.
42K.N. reported that she called the police once because J.S. attempted suicide. Like the alcohol problem, however, she reported that this behaviour was starting to get better and they often work things out by going for a walk and talking.
43J.S. reported difficulty controlling his anger. He has tried to take some anger management therapy in the past with mixed success.
44He also reported having had some mental health admissions at the Royal Ottawa Hospital. He stated that he was hoping to get further referrals.
45The only consistent person supporting J.S. is K.N., who provided a letter of support, which I will discuss in greater detail below. According to the Gladue report, J.S. does not live with K.N., but he lives near her and is in regular contact with her. When he is not working he supports K.N. with her children and plays video games. He is working as a roofer.
46J.S. reported that his mother told him that their family survived residential school. He recalled that his grandmother was able to speak Algonquin. She died young.
47J.S. stated that he has visited Pikwakanagan about five times since he moved back to the area. He expressed a desire to get more connected with his ancestral home but transportation is an issue.
48He has gone to pow-wows and participates in smudging and sweat lodges.
Letter of Support from K.N.
49K.N. provided a letter of support. She stated that:
a) J.S. has struggled with suicide, alcohol and authority.
b) He has significantly changed over the past few years, noting that he stopped drinking and seems calmer and happier.
c) He is a great support to her children. She stated that he is the children’s cousin and their Godfather. They refer to him as Uncle J.S. and he goes to church with them. He spends every day that he is not working with them.
d) Incarcerating J.S. would be stressful for the children, one of whom suffers from anxiety.
50She expressed the view that J.S. “just needs the time, patience and help to find his way.” She asked me to help J.S. get the help that he needs. She asked me not to incarcerate him.
Letter of Support from Lisa McQueen
51Lisa McQueen is a “Clinical Behaviorist”. I was not given a curriculum vitae or any other information as to what her qualifications are.
52She wrote a letter dated July 20, 2022 in which she indicated that she had been working as J.S.’s anger management counsellor. The letter was written when J.S. was applying for bail.
53Ms. McQueen stated that J.S. attended weekly sessions between May 2022 and his arrest for the offences before the Court.
Crown Submissions
54Following R. v. Friesen, 2020 SCC 9 and the cases that follow it, the Crown sought:
a) 12 months in custody;
b) Three years probation;
c) An Order for the taking of the accused’s DNA;
d) A SOIRA order for ten years;
e) A section 109 Order;
f) A section 161 Order.
55The Crown noted that the primary aggravating factors present were:
a) The complainant was under the age of 18;
b) J.S. was in a position of trust or authority.
56The Crown noted that the accused was not entitled to any mitigation for an early guilty plea.
Defence Submissions
57Defence counsel agreed that the offences called for a period of custody. Defence counsel submitted that a sentence in the “upper range” of a conditional sentence would be appropriate having regard to the following factors:
a) The accused was cut off from his community at an early age. He has never been able to fully explore his Indigenous ancestry.
b) The accused’s father was absent from his life when he was growing up. His mother wanted it that way. The accused moved from Ontario to Nova Scotia which alienated and distanced him from his father.
c) The accused tends to work and has worked in the roofing industry for the past seven years.
d) The accused’s use of drugs, other than marihuana, and alcohol is “under control”.
e) The accused has positive community support from K.N.
f) The accused is amenable to treatment.
Analysis
58In R. v. Lacasse, 2015 SCC 64, the Supreme Court of Canada determined that the “cardinal principle” of sentencing law is the principle of proportionality, that is, the more serious the crime and the greater the degree of the offender’s responsibility, the more severe the sentence will be. This must be balanced against the moral blameworthiness of the offender.
59Lacasse also describes sentencing as a “delicate task”. Other cases have established the principle that sentencing is a highly individualized process.
60The sentencing in this case must address J.S.’s penchant for assaultive and threatening behaviour. This assault in this case is his sixth assault conviction. It also involves the putting his hands around the neck of J.M. and interfering with her breathing, which is very aggravating.
61The sentencing in this case must also address a new dimension to his offending behaviour – sexual offences.
62J.M. was J.S.’s half-sister. As I have pointed out in the trial judgment, she was younger, smaller and very vulnerable. His behaviour towards her is deplorable and shameful. He turned what should have grown to be a wholesome, loving and supportive relationship into an abusive relationship where J.M. was sexually humiliated at his bidding.
63There is no evidence before me that J.S. expresses any insight into this new dimension to his offending behaviour.
64The sentencing authorities are clear that absent an issue going to the offender’s moral blameworthiness, custody is called for and conditional sentences are rare in cases of sexual assault. Denunciation and deterrence are the primary sentencing goals.
65At the same time, the sentencing must also reflect that J.S. is Indigenous. He has a deprived background which is, at least in part, no doubt connected to his Indigenous ancestry and Canada’s deplorable record with respect to Indigenous people.
66J.S.’s mother, from whom he inherited his Indigenous ancestry, left Ontario when J.S. was a young boy and moved to Nova Scotia. This deprived J.S. of any interaction with his father, S.S., until much later in J.S.’s life when they connected through social media.
67The intergenerational trauma of the residential school experience may help explain how and why J.S. did not have the benefit of a strong relationship with his father as he was growing up. As I have pointed out, J.S. told the Gladue writer that he was an “outsider” and has been for most of his life. Somehow, J.S. must come to grips with and start to try to heal from the emotional dislocation that he feels. This sentencing must somehow acknowledge and address these truths.
68In R. v. Friesen, supra, at paragraph 5, the Supreme Court of Canada made it clear that the law of sentencing with respect to sexual offences against children must change:
We 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.
69In Friesen, the Supreme Court discussed – at length – the inherent wrongfulness and profound harmfulness of sexual offences against children and the life-altering consequences that are visited on the victims of these offences. At paragraph 76, it instructed sentencing judges to “recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and (3) the actual harm that children suffer as a result of these offences". See, generally, paragraphs 50 to 86.
70Friesen completely changed the sentencing paradigm in cases of sexual offences against children. “Out” was the old ethos of measuring the sentence according to a yardstick of how physically invasive the sexual assault was with touching at the low end and penetration at the highest end.
71“In” is a more holistic approach where the determination of a fit sentence will be based on the following factors, of which the physical invasiveness of the sexual offence is only one:
a) The likelihood of the offender to reoffend;
b) The abuse of a position of trust or authority;
c) The duration and frequency of the abuse;
d) The age of the victim;
e) The degree of physical interference;
f) The emotional and psychological harm.
See Friesen, supra, paragraphs 122 to 147.
The Likelihood of the Offender to Reoffend
72I do not have the benefit of a sexual behaviours assessment to assist me with assessing the risk that J.S. will reoffend.
73I find that there is a high likelihood, given J.S.’s track record, that he will reoffend in an assaultive or threatening manner.
74As I pointed out, however, this is J.S.’s first sexual offence. The facts are disturbing. The fact that the complainant is his half-sister is also disturbing.
75K.N. reports that J.S. assists her with her children and they refer to him as “uncle.” She says that he is caring and she is concerned about the effect his incarceration may have on them, particularly one child who has anxiety issues.
76What became clear to me through the trial is that J.S. needs treatment to address his sexual behaviour. There were a number of incidents in this case. Although I was in doubt with respect to some of them, the tenor of the evidence at trial makes it clear that J.S. needs work in the area of boundaries with younger women. There are aspects of his behaviour that some would see as “grooming” which is of concern.
77I find that this treatment can be obtained in the community through a conditional sentence order and a probation order and it is not necessary to incarcerate J.S. in order to deal with this criminogenic needs.
The Abuse of a Position of Trust or Authority
78I have already discussed this and I believe J.S.’s moral blameworthiness on this factor is very high.
79This factor militates in favour of a carceral sentence.
The Duration and Frequency of the Abuse
80The sexual offence in this case was a one-time event. The abuse was short in duration.
81This is not a case where there was a prolonged period with a number of incidents of sexual violation which would be much more aggravating.
The Age of the Victim
82The complainant was approximately 14 when this occurred. This is not a case where a young child was violated which would be much more aggravating. That said, any violation of any child, no matter how old, is a serious affront to justice, particularly on these facts where the accused and the complainant were step-siblings.
The Degree of Physical Interference
83Although I have made it clear that this offence is degrading, disgusting, humiliating to the victim and a clear expression of J.S.’s power and control over her, this is not a case where J.S. sexually offended in a hands-on manner. There is no touching, forced fellatio, or digital or penile penetration, all of which would be more aggravating.
84I note, however, the facts of the assault involved a high degree of physical interference with the complainant. I found at trial that J.M. provided compelling details in relation to this, including the fact that she could barely breathe and felt like she was breathing through a straw. This ups the ante with respect to the degree of physical interference that J.S. is capable of.
The Emotional and Psychological Harm
85The Victim Impact statement in this case was very short. It may well be that J.M. has minimised the emotional and psychological harm that this offence has caused her. She discloses trust issues, social anxiety and nightmares.
86Without in any way minimizing these impacts, it does not appear that this is a case where there is severe emotional and psychological harm which impacted the complainant’s ability to go to school, work or function. Those would all be more aggravating.
Conclusion with Respect to Appropriate Length of Sentence
87Having considered all of the aggravating and mitigating factors, I would assess a carceral sentence for J.S. which involves six months for the assault and six months for the sexual assault. In other words, subject to my comments below, I agree with the Crown that the appropriate sentence in this case is about 12 months in custody.
88Following that sentence I would impose a three-year probation order to address the numerous issues that J.S. must address if he is to remain offence-free going forward.
Is a Conditional Sentence Available?
89Because the sentence being imposed is within the reformatory range, I am required to consider whether a conditional sentence is advisable and should be ordered.
90This is probably the most difficult aspect of this case.
91In R. v. Proulx, 2000 SCC 5, the Supreme Court of Canada found that there was no general rule that conditional sentences were not available for certain categories of offences, provided that:
a) a conditional sentence would not endanger the safety of the community;
b) a minimum sentence which involved imprisonment was not mandated by Parliament;
c) the appropriate length of sentence was less than two years;
d) the sentence was not inconsistent with the fundamental principles of sentencing in the Criminal Code.
92Proulx, supra, recognised that although a conditional sentence is not as denunciative as imprisonment, “… a conditional sentence can still provide a significant amount of denunciation. This is particularly so when onerous conditions are imposed and the duration of the conditional sentence is extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances.”: Proulx, supra, at paragraph 102.
93Only where “… the need for denunciation is so pressing that incarceration will be the only suitable way in which to express society’s condemnation of the offender’s conduct.” is a conditional sentence inappropriate: Proulx, supra, at paragraph 106.
94Proulx also allowed that although a conditional sentence does not have the same deterrent effect as imprisonment. The Supreme Court cautioned at paragraph 107:
Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration: see Wismayer, supra, at p. 36. The empirical evidence suggests that the deterrent effect of incarceration is uncertain: see generally Sentencing Reform: A Canadian Approach, supra, at pp. 136-37. Moreover, a conditional sentence can provide significant deterrence if sufficiently punitive conditions are imposed and the public is made aware of the severity of these sentences.
95Only where “ …the offence is one in which the effects of incarceration are likely to have a real deterrent effect” and where “…the circumstances of the community in which the offences were committed” render a conditional sentence inappropriate, should the Court rule one out: Proulx, supra, paragraph 107.
96Parliament amended the Criminal Code in 2005 by adding section 718.01, which requires the Court to give “primary consideration” to the principles of denunciation and deterrence when imposing sentence in a case that involves the abuse of a person under the age of 18.
97Enter Friesen. In calling for higher sentences for individuals who sexually abuse children, the Supreme Court of Canada commented on section 718.01 in this way at paragraphs 102 to 104:
The words “primary consideration” in s. 718.01 prescribe a relative ordering of sentencing objectives that is absent from the general list of six objectives in s. 718(a) through (f) of the Criminal Code (Renaud, at § 8.8-8.9). As Kasirer J.A. reasoned in Rayo, the word “primary” in the English text of s. 718.01 [translation] “evokes an ordering of the objectives . . . that is . . . relevant in the [judge’s exercise of discretion]” (para. 103). This ordering of the sentencing objectives reflects Parliament’s intention for sentences to “better reflect the seriousness of the offence” (House of Commons Debates, vol. 140, No. 7, 1st Sess., 38th Parl., October 13, 2004, at p. 322 (Hon. Paul Harold Macklin)). As Saunders J.A. recognized in D.R.W., Parliament thus attempted to “re-set the approach of the criminal justice system to offences against children” by enacting s. 718.01 (para. 32).
Section 718.01 should not be interpreted as limiting sentencing objectives, notably separation from society, which reinforce deterrence or denunciation. The objective of separation from society is closely related to deterrence and denunciation for sexual offences against children (Woodward, at para. 76). When appropriate, as discussed below, separation from society can be the means to reinforce and give practical effect to deterrence and denunciation.
Section 718.01 thus qualifies this Court’s previous direction that it is for the sentencing judge to determine which sentencing objective or objectives are to be prioritized. 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 (Rayo, at paras. 103 and 107-8). However, while s. 718.01 requires that deterrence and denunciation have priority, nonetheless, the sentencing judge retains discretion to accord significant weight to other factors (including rehabilitation and Gladue factors) in exercising discretion in arriving at a fit sentence, in accordance with the overall principle of proportionality (see R. v. Bergeron, 2013 QCCA 7, at para. 37).
98Since Friesen, many judges have found that conditional sentences are not appropriate in cases of sexual assault – sometimes even minor ones – in order to satisfy the denunciative and deterrent aspect of sentencing.
99In R. v. MM, 2022 ONCA 441, a case dealing with the possession of child pornography in a situation that involves a breach of trust, the Court stated at paragraph 16:
Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case.
100In R. v. Faroughi, 2024 ONCA 178 at paragraph 99, Justice Zarnett discussed the ratio in MM as follows:
This court has consistently reiterated post-Friesen that conditional sentences will rarely be appropriate for sexual offences against children: see M.M., at para. 16; B.M., at para. 2. Even so, in some exceptional circumstances, incarceration will not be appropriate. For example, without creating any bright-line rules, this court in M.M. suggested that some offenders experiencing medical hardship that cannot be adequately addressed within a correctional facility may fall within these circumstances: at para. 16. As I will explain, I am satisfied that, given the appellant’s immaturity and sexual inexperience at the time of the offence, the fact that this was his first offence, his recent medical hardships, and his impressive efforts in taking accountability for his actions and serving his community post-sentence, a conditional sentence is available in these circumstances.
101In R. v. Pike, 2024 ONCA 608, Chief Justice Tulloch also recognised the tension between the Supreme Court’s recognition in Proulx that conditional sentences can be denunciative and deterrent offences and the Court of Appeal’s decision in MM that exceptional circumstances were required in order to impose a conditional sentence. He reconciled these approaches this way at paragraphs 179 to 182:
….courts must decide whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing, especially the fundamental principle, proportionality. This test requires considering not only personal circumstances and mitigating factors of people who possess child pornography, but also the severe wrongs and harms that they cause, their moral blameworthiness, and Parliament’s prioritization of deterrence and denunciation: McCaw, at paras. 27-29; R. v. M.M., 2022 ONCA 441 at paras. 15-16. As this court held in M.M., applying this second step ordinarily results in custodial sentences because Parliament has prioritized denouncing and deterring the wrongs and harms that people who possess child pornography cause real children: at paras. 15-16.
I must reconcile the “exceptional circumstances” term that M.M. used to express this point with the Supreme Court’s decisions in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, and Parranto. At first glance, M.M.’s use of this term might seem contrary to these cases, which respectively hold that appellate courts can neither create presumptions that conditional sentences are inappropriate for specific offences (Proulx, at paras. 80-83), nor require exceptional circumstances to depart from a range (Parranto, at para. 40).
But in my respectful view, M.M. did not and could not have intended to depart from Proulx by creating an offence-specific presumption against conditional sentences. Rather, it used the “exceptional circumstances” term to convey that, since Proulx, Parliament has increased maximum sentences and prioritized denunciation and deterrence for sexual offences against children and, further, that the courts’ understanding of the harmfulness and wrongfulness of these offences has deepened: Friesen, at paras. 109-110; see M.M., at paras. 13-15. Thus, while there is no presumption against conditional sentences, these post-Proulx changes require more compelling personal circumstances, mitigating factors, and/or the absence of aggravating factors, to justify a conditional sentence than might have been the case when Proulx was decided more than two decades ago.
Nor, in my view, did M.M. intend to depart from Parranto by requiring exceptional circumstances to impose a conditional sentence. Rather, M.M. used “exceptional circumstances” as shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate, as in R. v. Padda, 2019 BCCA 351, at para. 36. Not only is there no closed list of such circumstances and factors (M.M., at para. 16), but multiple seemingly non-exceptional factors taken together, such as being a young first offender with family support who poses little risk and takes responsibility for his actions, can collectively render a conditional sentence proportionate: R. v. Faroughi, 2024 ONCA 178, 435 C.C.C. (3d) 1, at para. 99. This is consistent with Parranto’s holding that sentencing must focus on proportionality, not pigeonholing cases into ill-defined exceptional circumstance categories: at para. 40; see R. v. Ellis, 2022 BCCA 278, 417 C.C.C. (3d) 102, at para. 118. [Emphasis mine]
102See also, most recently, in R. v. AL, 2025 ONCA 9.
Conclusion re Sentence to Be Imposed
103In my view, a conditional sentence in this case is an appropriate sentence having regard to the following aspects of the case, which, taken together, are sufficient to constitute exceptional circumstances:
a) The accused has been in trouble with the law since he was a youth. Despite numerous brushes with the law, there is no evidence before me that a conditional sentence has ever been imposed on him. All of the sentences imposed have been carceral or probationary sentences.
b) The accused was separated from his father when he was young. He grew up with a step-father. He considered himself an outsider.
c) The accused has an Indigenous background. His mother’s family went to residential school. The devastating impacts of residential schools on Indigenous families, their ability to parent and the resulting intergenerational trauma are well known.
d) The accused has always felt like he is an outsider. He recalls feeling like he had to hide his Indigeneity. He recalls his brother, who looks more Indigenous than he does, having being subjected to outright racial discrimination based on his Indigeneity.
e) Like many Indigenous children, the accused was supervised by child welfare authorities and placed with a foster family. He also rebelled against them because they were not his family. They were also very religious.
f) The accused has an alcohol and drug problem. Indigenous people have alcohol and drug problems at a disproportionate rate to the rest of society. He has attempted to stop drinking and using drugs through a faith-based program in Ottawa. He had some success before his participation in the program was terminated.
g) The accused clearly has mental health problems. He was diagnosed with ADHD when he was a youth and prescribed medication which he stopped taking. He has attempted suicide. As a youth he also engaged in cutting and other forms of self-harm.
h) He is amenable to counselling. Although his success with some counselling (such as the faith-based residential program) has been mixed, the letter from Lisa McQueen supports the proposition that he is capable if he applies himself.
i) Carceral offences have not worked to stop J.S. from committing offences. Rather than blindly follow a step principle and impose another custodial sentence, this case, notwithstanding its seriousness, provides an opportunity to impose conditions which would have a meaningful impact on J.S. and in doing so, protect society and contribute to the long-term protection of the public.
104In my view, a Conditional Sentence is proportionate to the gravity of his offence, his degree of responsibility and his moral blameworthiness, having regard to the following factors:
a) The accused needs ongoing treatment and rehabilitation for his sexual offending, his anger problem, his mental health difficulties and his substance abuse. I find that he is more likely to receive this treatment when he is under the direction of a conditional sentence supervisor than he would be if he were simply “doing time” in a reformatory.
b) A conditional sentence allows me to impose a greater period of supervision, treatment and programming than I would be able to impose if I were imposing a carceral sentence. When combined with a three-year term of probation, which I also intend to impose, J.S. will be under the firm guiding hand of a probation officer/conditional sentence supervisor for a total period of almost five years.
c) On the facts of this case, a conditional sentence, particularly one like this one where there will be a lengthy period of house arrest, is sufficiently denunciative and deterrent. J.S. knows that in the event of a breach, the likelihood of reincarceration is very high.
d) This case involves a sexual offence against his 14-year-old step-sister when J.S. was in a position of trust or authority over her, which is extremely aggravating and which almost tips the balance in favour of a carceral sentence.
e) The sexual offence took place once and although it was demeaning and humiliating to the complainant, it did not involve hands on contact. Furthermore, the Victim Impact Statement does not disclose severe emotional, psychological or physical harm that has impacted her ability to work, or go to school. In saying this, I am in no way minimising the social anxiety or nightmares which J.M. suffers from. More frequent abuse, hands-on sexual contact or more severe victim impact may well have tipped the balance in favour of a carceral sentence.
f) A conditional sentence of a lengthy term with a significant portion being served under house arrest, with GPS monitoring, denounces J.S.’s crime. Contrary to the general impression by ill-informed members of the general public, serving a lengthy conditional sentence with a house arrest component is not easy.
g) A conditional sentence will deter J.S., and others, from committing similar crimes. In this case, a conditional sentence will deter J.S. from committing any crime, given that the risk of reincarceration is almost certain in the event of a breach.
Sentence Imposed
105The sentence that I impose is:
a) Two years less one day conditional. This will be imposed on the sexual assault and concurrent on the assault. This is an artificial concurrent sentence that I have ordered to make it easier for the Court staff, the supervisor/probation officer to administer. Absent that administrative reality and the need to impose a holistic global sentence, the sentence would have been twelve months on each charge consecutive.
b) In addition to other optional conditions, the conditional sentence will include a house arrest term for a period of twelve months. The accused will also be subject to electronic monitoring.
c) Three years probation on each count, concurrent.
d) A section 109 Order for ten years.
e) An Order requiring J.S. to register for the Sexual Offender Information and Registration Act for a period of twenty years.
f) An Order for the taking of his DNA. The sexual assault is primary. The assault is secondary. The Order will be made on both offences.
g) An Order under section 161(c) of the Criminal Code for a period of twenty years. This may be varied by the Court if there is a material change in J.S.’s circumstances. The Order will have exceptions for incidental contact in the course of brief commercial transactions, while J.S. is employed or going to school, or if permission is granted by a Child Welfare authority.
106J.S., the time has come for you to take responsibility for your life, accept help that is offered to you, stop making excuses and change your ways. Failure to do so will have dire consequences.
Released: February 4, 2025
Signed: Justice J.R. Richardson