WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 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 at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
CITATION: R. v. Jones, 2025 ONCJ 404
DATE: July 29, 2025
COURT FILE No.: Halton Info # 998 23 12101191
BETWEEN:
HIS MAJESTY THE KING
— AND —
STEPHEN JONES
Before Justice Jennifer Campitelli
Heard on March 3rd, April 2nd, May 8th, June 16th, and June 19th, 2025
Reasons for Judgment released on July 29, 2025
M. Chant................................................................................................ counsel for the Crown
J. Clark................................................................. counsel for the accused Stephen Jones
CAMPITELLI J.:
1Following a trial, Stephen Jones was found guilty of the following two counts, that he:
(1) On or about the 9th day of April in the year 2023 at the Town of Milton in the said region, did commit a sexual assault on A.D. contrary to section 271 of the Criminal Code of Canada; and further that
(2) On or about the 9th day of April in the year 2023 at the Town of Milton in the said region, being in a position of trust or authority towards A.D., a young person, did for a sexual purpose touch directly the body of A.D. a young person with a part of his body to wit; his mouth, contrary to section 153(1)(a) of the Criminal Code of Canada.
2A detailed summary of the facts was included in my written reasons for judgment released on October 29, 2024. Therefore, only summary reference is required at this time. It was established at trial beyond a reasonable doubt that Mr. Jones initiated sexual contact with A.D. on April 9, 2023 without her consent. I found Mr. Jones touched A.D’s breasts and nipples under her clothing, which included rubbing and squeezing and that he also placed his mouth on both of A.D’s breasts and her nipples. I further found that Mr. Jones kissed A.D. on the mouth and attempted to use his tongue. I concluded that A.D. did not want the sexual contact between herself and Mr. Jones to happen, she did not consent to it. Finally, I found that Mr. Jones was in a position of trust relative to A.D. when he sexually assaulted her on April 9, 2023.
Background of the Offender
3Mr. Jones chose to address me with his counsel assisting him by asking him questions to focus his submissions. He expressed remorse for the harm he had caused and revealed that he feels very ashamed of his actions. He spoke of his efforts to rebuild his relationship with his daughters, and candidly admitted that he felt he was a “shell” of the man he used to be. Mr. Jones expressed that his work with Dr. Albert De Goias has been very helpful, and he continues to engage in counselling and support for his mental health related challenges. Mr. Jones apologized to the victim in this matter A.D. and indicated that he hoped his actions did not impact the rest of her life in any significant way.
4Additionally, a presentence report was ordered to gain further insight into Mr. Jones’ background and individual personal circumstances. The presentence report (PSR) provided some insight into Mr. Jones’ upbringing. Mr. Jones was adopted by his biological brother, and was raised with his younger indigenous sister, who was also adopted into the family. He reports being exposed to racial discrimination during his childhood. Mr. Jones does not report any substance use issues by his parents or any incidents of physical or verbal abuse. His family had limited means, and they relied on government financial assistance at times. Mr. Jones reports having a “tumultuous” relationship with his brother, who raised him. However, he always maintained a close relationship with his sister, and they continue to have regular contact.
5Mr. Jones met his former partner when they were working at the same company, and they were married in 2000. Although they are currently separated, Ms. Larkin is supportive of Mr. Jones and describes him as a wonderful father. She reports that the pair created a loving and supportive home that was always open to welcoming and assisting others. Mr. Jones maintains contact with his daughters, assisting them with their academics. He hopes to rebuild his relationship with them and regain their trust.
6Mr. Jones personally and emotionally addressed me. He expressed the extreme remorse he feels because of his assaultive behaviour relative to A.D., which he now admits. He deeply regrets the harm he has caused to A.D. as well as his family and has found his work through therapy both meaningful and enlightening. He now fully appreciates his wrongdoing and is willing to accept the consequences.
Impact on the Victim
7A.D. provided a victim impact statement outlining the emotional, physical, and financial hardship she has endured as a result of being victimized by Mr. Jones. A.D. speaks of how being assaulted sexually has altered her perspectives on sex and boundaries forever. A.D. recounts the difficulties she has experienced in her personal relationships with her family and an intimate partner. She reveals she failed a high school course and dropped out of her first year at university because of the pain and mental disconnection she felt. A.D. speaks of struggling with focus and motivation and having to engage in extensive therapy.
8A.D. recounts feelings of being manipulated by Mr. Jones, feeling that she was in his complete control. She describes Mr. Jones as playing a “fatherly” role in her life and abusing her trust. She speaks of feeling guilty for speaking up, as she knew it would be hurtful to both Mr. Jones and his family.
9Finally, A.D. recalls how impactful testifying at trial was. She describes fantasizing about getting in a car accident, so she would not have to re-live all the pain again. A.D. was not able to attend school and became depressed. A.D. describes feelings of anxiety, exhaustion and being disgusted with herself.
Grounding Legal Principles:
The Order of Proceeding: Notice of Constitutional Question with respect to s. 153(1)(a) of the Criminal Code of Canada
10Mr. Jones has brought an application, challenging the constitutional validity of the mandatory minimum sentence attached to s. 153(1)(a) of the Criminal Code of Canada.
11The crown takes the position that I should first determine what the appropriate disposition is in Mr. Jones’ individual circumstances, and with a view to the entire evidentiary record, which has been placed before me. If the disposition I reach is greater than 90 days imprisonment, which is the mandatory minimum sentence attached to the s. 153 count in these circumstances, then the crown argues any analysis with respect to the constitutional validity of the applicable provision, in Mr. Jones’ individual circumstances is academic. Simply put, Mr. Jones’ constitutional argument would be ‘moot’ in those circumstances, and I should not consider it. The Ontario Court of Appeal refused to interfere with the trial judge’s decision to employ this procedure in R .v. Laverne, 2023 ONCA 592. Moreover, a similar procedure was followed in R .v. Riossi, 2023 ONSC 3812, where Justice Di Luca found it would be “academic” on the facts of the case before him.
12The defence was not able to present any binding authority, which would suggest I ought to conduct my analysis otherwise.
Sexual Assault Cases where Children are Victimized
13In R. v. Friesen, 2020 SCC 9, [2020] 1 S.C.R. 424, the Supreme Court of Canada sent 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: R. v. Friesen at para. 5.
14Denunciation and deterrence are the primary objectives when sentencing for sexual offences against children. Carceral sentences will ordinarily follow, and conditional sentences will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate: R .v. B.S., [2023] O.J. No. 28 at para. 49 citing R .v. Friesen, at paras. 114-116 and R .v. M.M., 2022 ONCA 441 at paras. 15-16.
15In R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132 at paragraph 31, the Supreme Court of Canda adopted the following language:
…I do start from the premise that sexual assault of a child is a crime that is abhorrent to Canadian Society and society’s condemnation of those who commit such offences must be communicated in the clearest of terms. As 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. The trial judge obviously concluded that “house arrest” with certain liberties would be sufficient to communicate society’s condemnation of the offender’s conduct in the case. With the greatest of respect for the opinion of the trial judge, I do not accept that the objectives of sentencing can be met in this case by a conditional sentence…
16However, it must also be remembered that cases have found that a conditional sentence can provide both deterrence and denunciation and that the Supreme Court of Canada also stated that a conditional sentence order can meet these goals in R .v. Proulx [2001] 1 S.C.R. 61.
The Kienapple Argument
17If there is a finding of guilt on one count, and the same or substantially the same elements make up the offence charged in a second count, the situation invites the rule against multiple convictions. Parliament’s power to constitute two separate offences out of the same matter is not in question. However, unless there is a clear indication that multiple prosecutions and multiple convictions are envisaged, than one of the convictions should be quashed: R .v. Kienapple, [1975] 1. S.C.R. 729.
18The principle in R. v. Kienapple does not prohibit a multiplicity of convictions, each in respect of a different factual incident. There is degree of factual identity required between the charges, which will usually be answered by determining whether the same act of the accused grounds each of the charges: R. v. Prince, 1986 CanLII 40 (SCC), [1986] 2 S.C.R. 480 at para. 17 and 20.
19Once it has been established that there is a sufficient factual nexus between the charges, it remains to determine whether there is an adequate relationship between the offences themselves: R. v. Prince, at paragraph 22.
20In applying the above criteria, it is important not to carry logic so far as to frustrate the intent of Parliament or as to lose sight of the overarching question whether the same cause, matter or delict underlies both charges: R. v. Prince, at paragraph 39.
21The crown argues that on this particular record, in order for Mr. Jones to be found guilty of the s. 153(1)(a) count, I was required to engage in a separate legal analysis guided by the factors outlined in the Ontario Court of Appeal’s decision in R .v. Aird, 2013 ONCA 447, [2013] O.J. No. 3027. Therefore, the crown takes the position that the principles outlined in R. v. Kienapple are not applicable. Notwithstanding the crown concedes a factual nexus exists between the charges, it argues that there is an inadequate relationship between the counts. Essentially, the crown submits that the same or substantially the same elements do not make up the offences charged with respect to both counts.
22In contrast, the defence argues strongly the sexual assault is the same cause, matter, or delict, which underlies both charges. As such, the defence takes the position the principles outlined in R. v. Kienapple are applicable, and one charge must be conditionally stayed.
Position of the Parties with Respect to Disposition
Crown
23The crown takes the position that the appropriate sentence is a period of twelve to eighteen months custody, followed by a two-year period of probation with terms to address counselling and contact with the victim A.D. The crown also requests a no contact order relative to the victim when Mr. Jones is in custody, a 110 order for five years, a DNA order, and the mandatory SOIRA order for ten years. The crown argues, should I be persuaded by its argument relative to R. v. Kienapple, that a concurrent sentence is appropriate given that the offences are so closely linked to each other as to constitute a single criminal adventure.
24Should I deem the principles in R. v. Kienapple are applicable, the crown asks me to conditionally stay the s. 271 count, taking the position it is the less serious of the two counts on this record. Notwithstanding, given the aggravating features the crown stresses relative to the s. 153(1)(a) count, its position on the ultimate disposition remains unchanged.
25The crown grounds its position in the principles of general and specific deterrence and denunciation. The crown stresses the following factors in particular, which it argues are aggravating in Mr. Jones’ individual circumstances:
(a) A.D. was only seventeen years old at the time of the offence. Therefore, s. 718.2(a)(ii.1) is applicable;
(b) I also found that Mr. Jones was in a position of trust relative to A.D., making s. 718.2(a)(iii.3) applicable as well. The crown stresses to that end, the nature of the ongoing relationship between Mr. Jones and A.D., where he played the role of ‘father figure’ in her life, gaining her trust prior to victimizing her;
(c) The crown also highlights the victim impact statement. Reminding me of the significant immediate and long-term harm sustained by A.D. Harm, which she personally describes as life-altering;
(d) Finally, the crown relies on s. 718.01 of the Criminal Code, which states that when a court imposes a sentence for an offence that involves the abuse of a person under the age of eighteen years, it shall give primary consideration to the objective of denunciation and deterrence of such conduct. This is consistent with the binding authority from appellate courts: R. v. D.D., 2002 CanLII 44915 (ON CA), [2002] O.J. No. 1061, R. v. W.L.F. 2000 SCC 6, [2000] 1 S.C.R. 132.
26It is the crown’s position that the sentence must be served in an institution to address deterrence and denunciation on these facts, and that a conditional sentence would not appropriately address the principles of sentencing as outlined in section 718 of the Criminal Code of Canada.
Defence
27On behalf of Mr. Jones, Mr. Clark argues a conditional sentence is appropriate on these facts and reminds me that I am able to impose a conditional sentence, even when there are aggravating circumstances. He stresses the mitigating factors present in Mr. Jones’ individual case. The lack of a criminal record, the extensive therapy he has engaged in since the time of the offence, his positive pro-social relationships, and the enormous support he enjoys in the community. Mr. Clark also emphasizes Mr. Jones’ age; the impact incarceration would have on his familial relationships and the therapeutic treatment he is currently receiving. Mr. Clark characterizes Mr. Jones’ behaviour relative to A.D. as out of character, and stresses that Mr. Jones does not pose a risk to the community.
28Therefore, Mr. Clark asks me to impose a conditional sentence, if one is available, followed by a probation order to address any safety concerns A.D. might have as well as counselling. Mr. Clark does not oppose any of the ancillary orders sought by the crown.
29Mr. Clark referenced several authorities in his submissions, where conditional sentences were imposed with respect to similar offences; however, I note much of the caselaw provided was distinguishable. The sentences referenced were imposed by jurists in the midst of the COVID-19 pandemic, in the context of jointly proposed submissions, or with a view to individuals who possessed exceptional personal circumstances.
Sentencing Principles
30The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives:
(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;
(b) to deter the offender and other persons from committing offences;
(c) to separate offenders from society, where necessary;
(d) to assist in rehabilitating offenders;
(e) to provide reparations for harm done to victims or to the community; and
(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community: s. 718 of the Criminal Code of Canada.
31A sentence must be “proportionate to the gravity of the offence and the degree of responsibility of the offender”: Criminal Code of Canada, s. 718.1. The degree of responsibility of the offender requires a consideration of the offender’s moral blameworthiness. Assessing that moral blameworthiness must be done through the perspective of the offender’s life experiences and personal characteristics: R. v. Morris, 2021 ONCA 680 at para. 88. This process of individualization is “central to the proportionality assessment”: R. v. Parranto, 2021 SCC 46 at para. 12.
32Ultimately, the sentence imposed must reflect the gravity of the offence, the offender’s degree of responsibility and the unique circumstances of the case: R. v. Lacasse, 2015 SCC 64 at para. 58.
33I am further guided by the Supreme Court of Canada’s decision in R. v. Nasogaluak, where the court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:
For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206 at paragraph 42.
Aggravating and Mitigating Factors
34Section 718.2(a) of the Criminal Code of Canada requires that a sentence be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender. I find the following aggravating factors are present in this case:
(1) The offences involve a child under the age of 18, which is statutorily aggravating: Criminal Code of Canada s. 718.2(a)(ii.1);
(2) Additionally, in perpetrating the sexual assault on A.D., Mr. Jones abused a position of trust. Not only was Mr. Jones A.D.’s softball coach, she viewed him as a “father figure”: Criminal Code of Canada s. s. 718.2(a)(iii.3); and
(3) Finally, the impact of the sexual assault A.D. experienced at the hands of Mr. Jones was profound and life-altering. Being victimized in this way significantly impacted her physical and emotional well-being and has interfered with her ability to pursue post-secondary education.
35With a view to mitigating factors, I find the following mitigating factors are present:
(1) Mr. Jones does not have a criminal record;
(2) Mr. Jones enjoys many positive relationships within the community and comes before me with enormous support. Most significantly, he has a positive relationship with his children, and his former spouse;
(3) Mr. Jones has engaged in extensive therapy to address the underlying issues, which resulted in him committing these offences relative to A.D. Moreover, I find the offences Mr. Jones committed on April 9, 2023, can properly be characterized as out of character; and
(4) Finally, Mr. Jones has now acknowledged his guilt and expressed his remorse for his actions. However, I note that his admission to this end comes after trial. Therefore, I must consider that his admission did not save A.D. from testifying in this matter. Her victim impact statement serves to highlight how difficult providing her testimony was for her, and the impact she sustained as a result.
Analysis/Conclusion:
36First, I must turn my mind to the applicability of the principles as outlined in R. v. Kienapple. Both parties agree that a sufficient factual nexus exists between the counts to engage the analysis. Therefore, I will focus my analysis on whether there is an adequate relationship between the counts such that the same or substantially the same elements make up the offences charged. Certainly, I had to undergo an independent legal analysis with a view to my finding pursuant to s. 153(1)(a) of the Criminal Code of Canada. Notwithstanding I had concluded beyond a reasonable doubt that Mr. Jones had sexually assaulted A.D. at the relevant time, I then had to consider the factors outlined in R .v. Aird, 2013 ONCA 447, [2013] O.J. No. 3027 to determine if a relationship of trust existed between Mr. Jones and A.D. at the time of the assault. Therefore, I find the crown’s argument, that additional elements were required to prove the s. 153(1)(a) offence persuasive. However, I must not lose sight of the overarching question, whether the same cause, matter or delict underlies both charges? It is here that I find the crown’s argument fails. I found Mr. Jones guilty of sexually assaulting A.D. on April 9, 2023. The sexual assault he perpetrated relative to A.D. is the same cause, matter or delict that underlies both charges. As such, the s. 271 count will be conditionally stayed pursuant to the principles outlined in R. v. Kienapple, and Mr. Jones will be sentenced solely on the s. 153(1)(a) count.
37In the result, I find Mr. Jones’ crimes reflect a high degree of moral culpability. Mr. Jones established himself as a “father figure” in A.D.’s life. He coached her, helped her with her homework, and fostered a relationship of trust between them. A trust he would then exploit when he assaulted A.D. sexually on April 9, 2023. A.D. was vulnerable, just seventeen years old at the time of the assault. The impact she has experienced as a result of being victimized in this way has been profound and I fully accept that it will be life-altering. To be very clear, A.D.’s life is forever changed because of the sexual assault perpetrated by Mr. Jones, who was someone she looked up to and trusted. I appreciate Mr. Jones has accepted responsibility for his conduct, expressed remorse and enjoys tremendous support in the community. I also accept his actions relative to A.D. are out of character. However, this is not atypical with a view to offences of this nature.
38I conclude the principles of denunciation and general and specific deterrence are the primary sentencing principles on this record, which is where I have placed significant weight. I am guided by s. 718.01 of the Criminal Code of Canada, and the binding appellate caselaw. I find that a 12-month period of custody is the appropriate disposition with respect to the s. 153(1)(a) count considering the significant aggravating factors present on this record. This period of custody will be followed by a two-year period of probation to address safety concerns relative to the victim A.D. and counselling.
39Given the period of custody imposed is under two years or 24 months, I have turned my mind to whether a conditional sentence is appropriate. In the balance, I have determined that given Mr. Jones’ moral culpability is particularly high, and the crimes have had a significant impact on the victim, a conditional sentence is simply not a proportionate penalty that adequately reflects the sentencing principles of denunciation and general and specific deterrence: R. v. Christink 2012 ONCA 141 at para. 5. On my review, such a sentence would simply not be consistent with the fundamental purpose and principles of sentencing contained in sections 718-718.2 of the Criminal Code of Canada. A conditional sentence would not reflect the gravity of the offence committed, the harm caused to A.D., who was only seventeen at the time of this offence, and Mr. Jones’ significant moral culpability. I have reminded myself that when imposing a sentence for sexual offences involving a child, carceral sentences will ordinarily follow, and conditional sentences will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate: R .v. B.S., [2023] O.J. No. 28 at para. 49 citing R .v. Friesen, at paras. 114-116 and R .v. M.M., 2022 ONCA 441 at paras. 15-16. After very careful consideration, I do not find that Mr. Jones’ individual circumstances represent exceptional circumstances, which render incarceration inappropriate.
40Finally, I have concluded the appropriate disposition in Mr. Jones’ individual personal circumstances exceeds the mandatory minimum sentence attached to s. 153(1)(a) of the Criminal Code of Canada. Therefore, considering the merits of the challenge to its constitutional validity would be purely academic on this record. Consequently, I will not engage in this analysis: R .v. Laverne, 2023 ONCA 592; R .v. Riossi, 2023 ONSC 3812.
41The s. 271 count is conditionally stayed, and Mr. Jones is sentenced to a 12-month period of incarceration with respect to the s. 153(1)(a) count. This period of custody will be followed by a two-year period of probation. In addition to the mandatory statutory terms, Mr. Jones is not to have any contact either directly or indirectly with A.D., and he is not to be within 100M of any place he knows her to live, work, go to school, frequent or any place he knows her to be except for court appearances. Mr. Jones will also attend and actively participate in all assessment, counselling or rehabilitative programs as directed by his probation officer and sign any releases necessary to enable his probation officer to monitor his attendance and progress.
42There is a mandatory DNA order, which I will impose pursuant to 487.051(1).
43I will put in place a 110 order for a period of 5 years.
44While Mr. Jones is in custody, he will be bound by a 743.21(1) order preventing him from having any contact directly or indirectly with A.D.
45Lastly, pursuant to Criminal Code of Canada sections 490.012(1) and 490.013(2)(a) I will make an order the Mr. Jones be added to the Sex Offender Registry and that he comply with the Sex Offender Registration Act for 10 years.
Released: July 29, 2025
Justice Jennifer Campitelli