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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 212, 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.
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.5(1) or (2) of the Criminal Code. These subsections 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 486.5(1) or (2), read as follows:
486.5 ORDER RESTRICTING PUBLICATION — VICTIMS AND WITNESSES
(1) Unless an order is made under section 486.4, on application of the prosecutor in respect of a victim or a witness, or on application of a victim or a witness, a judge or justice may make an order directing that any information that could identify the victim or witness shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2) JUSTICE SYSTEM PARTICIPANTS — On application of the prosecutor in respect of a justice system participant who is involved in proceedings in respect of an offence referred to in subsection (2.1), or on application of such a justice system participant, a judge or justice may make an order directing that any information that could identify the justice system participant shall not be published in any document or broadcast or transmitted in any way if the judge or justice is of the opinion that the order is in the interest of the proper administration of justice.
(2.1) OFFENCES – The offences for the purposes of subsection (2) are
(a) an offence under section 423.1, 467.11, 467.111, 467.12, or 467.13, or a serious offence committed for the benefit of, at the direction of, or in association with, a criminal organization;
(b) a terrorism offence;
(c) an offence under subsection 16(1) or (2), 17(1), 19(1), 20(1) or 22(1) of the Security of Information Act; or
(d) an offence under subsection 21(1) or section 23 of the Security of Information Act that is committed in relation to an offence referred to in paragraph (c).
(3) LIMITATION – An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice if it is not the purpose of the disclosure to make the information known in the community.
486.6 OFFENCE
(1) Every person who fails to comply with an order made under subsections 486.4(1) to (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Court Information
Ontario Court of Justice
Date: August 6, 2025
Court File No.: Hamilton 23-47106517
Between:
His Majesty the King
— and —
Steven Allaby
Before: Justice J.P.P. Fiorucci
Heard on: January 23 and March 27, 2025
Reasons for Sentence released on: August 6, 2025
Counsel:
- Dayna Tinkham — counsel for the Crown
- Adrianne DiSimoni — counsel for the offender, Steven Allaby
FIORUCCI J.:
Overview
1Steven Allaby is a forty-five-year-old first offender. He entered a guilty plea to sexual interference. His victim was an eight-year-old girl who was unknown to him. She was shopping with her mother in a department store. Mr. Allaby grabbed the girl's buttocks and then immediately fled the store.
2Mr. Allaby committed this offence over twenty-one months ago. After being arrested and charged, he was released by way of an undertaking to a peace officer. While on release, he participated in a risk assessment which confirmed his attraction to female children. The assessor made extensive recommendations to reduce Mr. Allaby's risk of sexual recidivism. Mr. Allaby has complied with these recommendations by participating in extensive therapeutic intervention to address the root causes of his offending behaviour. That therapy is ongoing. Mr. Allaby has demonstrated significant remorse and insight.
3The Crown submitted that only a jail sentence, followed by the maximum term of probation could address the principles of denunciation and deterrence which are paramount in the sentencing analysis for child sex offences. Defence counsel urged me to permit Mr. Allaby to serve his sentence of imprisonment in the community by way of a conditional sentence order (CSO). The defence argued that a CSO, which would permit Mr. Allaby to continue with rigorous therapy and medical intervention, offered the most protection for the public, and would adequately address the principles of denunciation and deterrence.
4On July 31, 2025, I sentenced Mr. Allaby to serve an 18-month CSO followed by 3 years of probation and made other ancillary orders. I advised the parties that I would be releasing written reasons for finding that a CSO was the appropriate sentence in this case. These are my written reasons.
Circumstances of the Offence
5On October 15, 2023, surveillance video inside a Walmart store showed Mr. Allaby's movements as he lingered within the store for approximately ten minutes. During that time, the video depicts him following and looking at two young girls. In each case, he positioned himself in a way that he could look at the girls from behind. Mr. Allaby followed the second girl to the underwear section where he stood at the end of the aisle and watched her.
6He then turned his attention to the eight-year-old victim, T.T., who was shopping with her mother and younger sister. T.T. was pushing her sister in a shopping cart while her mother was shopping in front of them. Mr. Allaby spotted T.T. and watched her. He then walked to a position behind T.T. and after checking the surroundings for witnesses, he stepped up behind her and grabbed her buttocks. T.T. moved forward to tell her mother. Mr. Allaby immediately made his way to the front doors, called a taxi, and fled the area.
Circumstances of the Offender
7Mr. Allaby was 43 years old when he committed the offence. He is now 45 years old. He has no prior criminal record. He has the continued support of his mother and his sister. He and his sister have daily contact.
8His parents divorced in 1980, soon after he was born. Mr. Allaby grew up with no male father figure. His mother was a single parent. From his mother, he learned that his father was abusive toward her and did not provide any support for her and the children. Mr. Allaby's mother has been supported by ODSP benefits for many years due to health issues. The family lived in Hamilton City Housing due to their limited income. Mr. Allaby described his mother as "loving and kind" and a devout Christian. He and his sister attended church every Sunday.
9Academically, Mr. Allaby was a good student but did not have many friends while at school. After high school, he wanted to pursue a career as a pastor, and he obtained a Bachelor of Religious Education from Heritage College in Cambridge. When he graduated, he began working at a call centre but also started his own ministry which he called Hugs Community Church. He conducted services once a week on Sunday. This lasted approximately twenty months before the ministry closed due to lack of attendance and insufficient funding for rental costs.
10For the past twelve years, Mr. Allaby has maintained the same full-time permanent employment with a tech company as a Senior Technical Advisor, doing trouble shooting for phones, tablets, and software. He informed upper management, human resources, and a few coworkers at his work about his court matters. Initially, he was on a paid suspension due to the outstanding criminal charges, but he then returned to work and continued to work while on release awaiting disposition of his charges. His employment does not involve interactions with children.
11After his arrest in October 2023, Mr. Allaby retained the services of Alan Kaine, a Clinical Therapist. Mr. Kaine is recognized in Hamilton and the surrounding area for his work in the assessment and treatment of sexual offenders. He provides outpatient services to patients with sexual disorders. Mr. Allaby consented to a risk assessment, which included a phallometric assessment and physiological and psychometric tests.
12The results of the testing and Mr. Kaine's findings are contained in his report dated April 17, 2024 (the "Report"). The Report, together with evidence of Mr. Allaby's continued participation in therapy and programming, is Exhibit 3 on these proceedings. The Report contains information Mr. Allaby conveyed to Mr. Kaine throughout the assessment process.
13Mr. Allaby reported that his mood and affect changed after his arrest for this offence; he became anxious and depressed at times and had suicidal thoughts. He expressed feelings of discontent, stating that he did not like himself and hoped to "get better and understand why he did what he did". He recognized that he has a "problem with unwanted, inappropriate and unhealthy attractions to young girls".
14The Report details Mr. Allaby's history of sexual attraction to young girls. His sexual attraction to prepubescent females started in high school. In college, he posted on a message board that he was attracted to young females, resulting in some negative feedback. In one instance, at university, he was transparent about his attraction to a female child of an instructor, confiding in other students and in the instructor himself. He suffered no punitive repercussions but saw a counsellor for two or three sessions. At the end of his last year of college, Mr. Allaby befriended a man who was actively involved in the church. Mr. Allaby was attracted to this friend's daughter who was 10 or 12 years old, and he told his friend about the attraction. Again, this did not result in any negative consequences, and it does not appear that his friend encouraged him to receive counselling.
15Mr. Kaine stated in the Report that, at the time of the offence, Mr. Allaby "was struggling with his life and was preoccupied with sexual thoughts of underage females". Mr. Kaine noted that Mr. Allaby "seemed genuinely remorseful for his sexual acting out and had no intentions of hurting this child". Mr. Allaby was forthright during the assessment process, freely acknowledging his attractions primarily to pubescent females but also prepubescent females.
16When utilizing risk instruments, Mr. Kaine found Mr. Allaby to be a very low risk for general recidivism due to such factors as the absence of a criminal record, academic pursuits, stable employment, pro-social peer group and supportive family. There were no identifiable risk factors. There is an absence of any clinical evidence of any features of an antisocial personality, and no evidence of cognitive distortions which are commonly prevalent with Mr. Allaby's pedophilic profile. The Report states"[h]e was not a collector of child pornography, and the sexual inventories did not reveal sexual anomalies".
17The Report finds Mr. Allaby's risk level for sexual offending to be in the average range with dynamic risk factors including "having no intimacy/romantic relationships, negative emotionality (ruminates about negative events; not in control of his life; does not like himself and wishes that he was someone else), sexual preoccupation and sexual deviancy".
18However, Mr. Kaine goes on to say in the Report that there are positive strengths when reviewing prognostic risk factors:
He is a first-time offender, and he accepts full responsibility for his actions. He has an excellent work ethic. He presents as being remorseful and feels that this is the worst thing that he has ever done in his life. He recognizes that he needs to engage in therapy and wants help for his problems. He has no previous police occurrences and has been a pacifist rather than an aggressor in stressful situations.
19Prior to this offence, Mr. Allaby had not had any contact with mental health professionals regarding his sexual attractions. He has followed through with recommendations Mr. Kaine made in the Report. For instance, Mr. Kaine stated that his mother and sister "should be cognizant of his sexual pathology and present circumstances given that they are his primary support". Mr. Allaby followed through with this recommendation by disclosing his outstanding charges to his sister. He told his mother he was having legal problems but did not provide specifics about the offence. Due to health problems and hospitalizations, his mother has required 24-hour nursing care in a nursing home since May of 2024 which perhaps explains Mr. Allaby's limited disclosure to her. Both his sister and his mother remain supportive.
20The Report sets out treatment areas that Mr. Allaby needs to address, including sexual deviancy using treatment modalities including medical management, cognitive-behavioural therapy and behavioural-modification techniques. Mr. Kaine referred Mr. Allaby to the CoSA program (Circles of Support and Accountability), which is a community-based reintegration project of The St. Leonard's Society of Hamilton (SLSH).
21Rick Pauw, CoSA Senior Outreach Case Worker for SLSH provided a letter of support for Mr. Allaby, dated November 2, 2024, which is included in Exhibit 3. The CoSA program involves trained volunteers working with convicted sex offenders to build relationships and networks of support and accountability and works "in partnership with other treatment and supervision providers to ensure a safe reintegration into community for the released offenders".
22Mr. Pauw confirmed that Mr. Allaby contacted CoSA in July of 2024 to utilize their services in accordance with the recommendation made by Mr. Kaine. Since then, he has met with Mr. Pauw and a volunteer and attended the Living with Purpose program"a monthly discussion group where CoSA Core Members and participants meet to share and respond to challenges and barriers that many released offenders face in the process of safely reintegrating into community". Mr. Pauw observed that, throughout his participation in programming, Mr. Allaby openly disclosed his offence, and expressed his shame and remorse for the offence and for its impact on the victim. In his letter, Mr. Pauw spoke of Mr. Allaby's "commitment and determination to a future with no more victims or harm".
23In addition to his work with the CoSA program, Mr. Allaby has scheduled individual appointments with Mr. Kaine, attending five appointments between November 2024 and March 2025. In a follow up letter, dated March 11, 2025, Mr. Kaine stated that he and Mr. Allaby are in the early stages of therapy which will continue following Mr. Allaby being sentenced, with the emphasis being on self-regulation and relapse prevention. Mr. Kaine indicated in this letter that "[t]o date, Mr. Allaby presents as being serious about being crime-free and managing his sexual deviancy (pedophilia involving female children)".
24The pre-sentence report (PSR) dated March 25, 2025 is Exhibit 1. Both Mr. Kaine and Mr. Pauw advised the author of the PSR that Mr. Allaby has continued to participate in programming and therapy with them.
25Mr. Allaby has also involved his family physician in his rehabilitative steps. His family doctor has prescribed anti-anxiety medication which has been helpful to cope with the stress of the court process. The medication has had the indirect effect of lowering his sex drive.
26Mr. Allaby has taken the initiative to limit his computer use. Mr. Kaine reports in his follow-up letter that Mr. Allaby "is very careful when accessing information on devices to avoid potential triggers of sexual thoughts, urges and fantasies involving children".
Impact on the Victim
27The Victim Impact Statement of E.T.T., T.T.'s mother, is included in the brief filed by the Crown, which is Exhibit 2 in these proceedings. In her statement, E.T.T. expresses the guilt and pain she feels, blaming herself for failing to protect her daughter from Mr. Allaby. As a single parent who lives alone with her children, E.T.T. describes being terrified by the fact that Mr. Allaby watched and followed them through the store before touching T.T., which has made her paranoid of every stranger who comes close to her children when they are out shopping.
28E.T.T. describes T.T. as a once carefree and naïve child who now sees the world with cynicism and jadedness. She says that T.T. was in grade 4 when the incident happened and was learning about physical health and sexual education. Before the incident, E.T.T. would have conversations with her children about these issues and T.T. was an active participant. After the incident, T.T. withdrew and became uncomfortable having the same conversations. According to E.T.T., T.T. refuses to speak about the incident because she feels embarrassed and ashamed, and she is very guarded when she is out in public. T.T. is in therapy to help her process and navigate through these feelings.
Positions of the Parties
29Crown counsel sought a jail sentence of between 6 to 9 months followed by a 3-year probation order and the customary ancillary orders that flow from a conviction for sexual interference. The Crown emphasized the primacy of deterrence and denunciation for this serious sexual offence involving a vulnerable child who has been significantly impacted. The Crown maintained that a CSO was inappropriate and pointed to the fact that, according to the Report, Mr. Allaby is an average risk for sexual recidivism. Therefore, the court cannot be satisfied that allowing him to serve his sentence in the community would not endanger the safety of the community. Furthermore, a CSO is not consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.
30Mr. Allaby urged me to permit him to continue along his rehabilitative path, with the supports he has established in the community, by imposing a CSO of between 16 to 18 months, followed by 3 years of probation. He conceded that the ancillary orders sought by the Crown are appropriate. The defence did not dispute that denunciation and deterrence are the most important sentencing objectives in child sexual offence cases and must be given primary consideration. However, Mr. Allaby has demonstrated insight and remorse, and has engaged in therapy and programming which focuses on mitigating the risk of reoffending. The defence submitted that the evidentiary record of Mr. Allaby's commitment to rehabilitation should satisfy the court that a CSO will not endanger the safety of the community and is consistent with the fundamental purpose and principles of sentencing, including denunciation and deterrence.
Legal Principles and Analysis
31The principal purpose of the criminal law, and in particular sentencing, is the protection of society. This is reflected in the sentencing provisions in Part XXIII of the Criminal Code. Section 718 says that the 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.
32These goals are to be achieved by imposing just sanctions. Those just sanctions are to 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.
33The fundamental principle of sentencing, set out in s. 718.1 of the Criminal Code, is to impose a sanction that is proportionate to the gravity of the offence committed and the degree of responsibility of the offender. When applying the proportionality principle, R. v. Friesen mandates that courts consider the wrongfulness and harmfulness of sexual offences against children, which impact both the gravity of the offence and the degree of responsibility of the offender.
34In Friesen, the Supreme Court of Canada (SCC) 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". An assessment of the harm caused includes not only actual harm experienced up to the time of sentencing but also "the reasonably foreseeable potential harm that may only materialize later in childhood or in adulthood".
35In R. v. T.J., the Ontario Court of Appeal stated that the wrongfulness of child sex offences and the harm these offences cause "pertain as well to the offender's degree of responsibility". An offender ought to know that applying force of a sexual nature to a child can profoundly harm the child which increases the offender's degree of responsibility. It is the vulnerability of children that makes the intentional sexual exploitation and objectification of them highly morally blameworthy.
36Parliament has enacted special provisions for sentencing offenders who abuse children. Section 718.01 of the Criminal Code instructs that when a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.
37In T.J., the Ontario Court of Appeal explained how sentencing judges are to interpret and apply the primacy Parliament gave to denunciation and deterrence in s. 718.01:
A sentence expresses denunciation by condemning "the offender for encroaching on our society's basic code of values"; it expresses deterrence by "discouraging the offender and others from engaging in criminal conduct". Considerations of general deterrence lead to an offender being punished more severely than he or she might otherwise deserve in order to send a message to others: Lis, at para. 55.
The 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.
As 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.
38The unequivocal message from Friesen was that sentences for these crimes must increase.
39The Crown relied on R. v. M.M. to support its position that a CSO was inappropriate for the sexual offence that Mr. Allaby committed against T.T. In M.M., the offender was convicted of possessing and making child pornography and was sentenced to a 15-month CSO and 12 months' probation. The complainant, who was the foster daughter of the offender's aunt, met the offender when she was 12 years old. They texted each other over a three-year period, with the messages becoming sexually charged. The complainant sent the offender photos of her breasts and a video of her masturbating, and the offender sent her photos of his penis. They arranged to have sex after the complainant's 16th birthday but there was no evidence that they did so. The complainant was 15 years old at the time of the offences. The offender was 31.
40The trial judge found that a relationship of trust existed based on several criteria including the significant age difference, the fact that the offender acknowledged he was a role model for the complainant, and he knew she looked up to him and had looked up to him for emotional support since she was a child. The offender also knew that the complainant wanted him to be her godfather and he was prepared to do so. The Ontario Court of Appeal agreed with the trial judge that a relationship of trust existed and said that although the child pornography was sent to M.M. unsolicited"it was plain that [he] had been grooming the complainant — a child in foster care who was especially vulnerable as a result".
41In M.M., the Ontario Court of Appeal agreed with the Crown that the trial judge erred in principle and that the CSO was demonstrably unfit considering Friesen, saying that "[t]hose who commit sexual offences against children must understand that carceral sentences will ordinarily follow". The Court went on to say:
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. A sentence of imprisonment should have been imposed.
42In R. v. Pike, the Ontario Court of Appeal elaborated on its use of the phrase "exceptional circumstances" in M.M. and offered further guidance on when a conditional sentence may be appropriate for sexual offences against children. Pike dealt with the application of the Friesen principles when sentencing for possession of child pornography. Pike reconciled M.M. with the SCC's decisions in R. v. Proulx and R. v. Parranto.
43In Proulx, the SCC held that"it would be both unwise and unnecessary to establish judicially created presumptions that conditional sentences are inappropriate for specific offences". The SCC stated that "[o]ffence-specific presumptions introduce unwarranted rigidity in the determination of whether a conditional sentence is a just and appropriate sanction". In Parranto, the SCC emphasized that it is inappropriate for appellate courts to require "exceptional circumstances" when departing from a range, since "[d]eparting from a range or starting point is appropriate where required to achieve proportionality".
44Pike made clear that, notwithstanding the Ontario Court of Appeal's use of the term "exceptional circumstances" in M.M., the Court did not depart from Proulx by creating an offence-specific presumption against conditional sentences. Pike pointed out that, since Proulx, Parliament has increased maximum sentences and prioritized denunciation and deterrence for sexual offences against children. Furthermore, there is a deeper understanding of the harmfulness and wrongfulness of these offences. Chief Justice Tulloch, writing for the Ontario Court of Appeal in Pike, said:
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.
45Chief Justice Tulloch went on to say:
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, 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.
46Friesen recognizes the wrongfulness and harmfulness of child sexual abuse and s. 718.01 directs that primary consideration be given to the objectives of denunciation and deterrence when imposing a sentence for an offence that involved the abuse of a person under the age of eighteen years. Furthermore, sections 718.2(a)(ii.1) and 718.2(a)(iii.1) list as aggravating circumstances the fact that an offender abused a person under the age of eighteen years and the fact that the offence had a significant impact on the victim, considering their age and other personal circumstances.
47Each of these considerations and aggravating circumstances apply in Mr. Allaby's case. T.T. was a very young, vulnerable victim. The sexual touching has had a profound effect on T.T., and it is reasonably foreseeable that further emotional and psychological harm may materialize later in childhood or in adulthood from having been victimized by Mr. Allaby. Friesen observed that even a single instance of sexual violence can "permanently alter the course of a child's life".
48I also considered the harm caused to T.T.'s family, including her mother E.T.T., which Friesen recognizes to be a harmful consequence that flows from these types of offences. The Victim Impact Statement speaks of how T.T.'s relationship with her mother has been damaged by the incident. T.T. has become withdrawn and is now uncomfortable speaking with her mother about topics that used to interest her.
49Furthermore, I find that the harm to the community that the SCC spoke about in Friesen applies in Mr. Allaby's case. He followed and looked at young girls shopping with their guardians in a public place before ultimately acting on his attraction to young females by sexually touching T.T. It is reasonable to infer that Mr. Allaby's brazen conduct negatively impacted the community's general sense of safety and security.
50The absence of an aggravating factor is not a mitigating factor. However, the absence of aggravating factors is relevant to assessing the gravity of the offence and, therefore, arriving at a proportionate sentence. Mr. Allaby did not abuse a position of trust to commit the sexual offence against T.T., nor is this a case in which grooming of the child preceded the sexual touching. Mr. Allaby's offence did not involve sexual violence on multiple occasions over a prolonged period but rather was one brief incident of sexual touching on the victim's buttocks over the clothing. I mention this not to trivialize the seriousness of the conduct and the harm it caused to T.T. but to recognize that the degree of physical interference in the violation of the victim is a relevant consideration in determining a fit sentence. However, I am mindful of the SCC's caution in Friesen that "an excessive focus on the physical act can lead courts to underemphasize the emotional and psychological harm to the victim that all forms of sexual violence can cause". Any sexual offence is serious and "even mild non-consensual touching of a sexual nature can have profound implications for the complainant".
51There are several mitigating factors in Mr. Allaby's case. He entered a guilty plea. Although Mr. Allaby's guilty plea was not an early one, he engaged in the risk assessment process soon after his arrest with a view to receiving treatment and he instructed defence counsel to engage in resolution discussions with the Crown. The guilty plea spared T.T. and her family the emotional trauma of a trial and of having to testify in court. Mr. Allaby's guilty plea also preserved the judicial resources that would have been allocated for the trial. Those court resources can be diverted to other matters.
52I found Mr. Allaby's guilty plea to be a demonstration of his acceptance of responsibility. His guilty plea was accompanied by genuine remorse for his actions. The PSR and the Report are replete with references to Mr. Allaby's shame and anxiety for having acted upon his attraction to young females by touching T.T. He expressed sincere remorse in his allocution in court at the conclusion of the sentencing submissions, recognizing, and apologizing for the harm he caused T.T. and her family.
53Mr. Allaby was 43 years old when he committed the offence. He had no prior criminal record. To that point in his life, he was pro-social, having excelled academically and having maintained stable, permanent employment. At the time of sentencing, he was in the twelfth year of his employment with the same tech company. He had the continued support of his sister and mother and his employer. This type of support and his steady and fulfilling employment are indicators of his positive rehabilitative potential. It is significant that his employer and his sister are aware of the nature of his offending conduct and remain supportive.
54The most significant mitigating factor is that Mr. Allaby has demonstrated insight into the harmfulness of his sexual offending behaviour and has taken meaningful steps to treat his pedophilia to reduce the risk of recidivism for sexual offences against young females. The evidentiary record before me at the sentencing hearing disclosed that Mr. Allaby was in treatment, was complying with treatment recommendations, and was committed to addressing what he acknowledged to be a significant problem in his life, his preoccupation with sexual thoughts of underage females. Mr. Allaby's insight and participation in treatment for over twenty-one months diminishes his future risk of dangerousness. Based on the record before me at the time of sentencing, I found that Mr. Allaby was genuinely committed to continuing with treatment to better himself and ensure that he does not reoffend.
55The Crown conceded that Mr. Allaby had taken steps to mitigate his risk of reoffending. However, the Crown maintained that he should serve a jail sentence, relying in part on the finding in the Report that he is an average risk to commit a sexual offence. In my view, given the steps Mr. Allaby has taken to address his risk of sexual recidivism, and the absence of any evidence that he reoffended in the twenty-one months he was on release on an undertaking, the objective contained in s. 718(c) (separating the offender from society to protect children from wrongful exploitation or harm), was of diminished importance.
56The fundamental purpose of sentencing is to protect society. The parties agreed that an under two-year jail sentence was appropriate in Mr. Allaby's case. I found that permitting Mr. Allaby to continue his treatment in the community, with treatment providers with whom he has developed trusting relationships, would provide the best prospect of achieving protection for society, in particular children. The jail sentence of between 6 to 9 months that the Crown proposed, or any period of actual incarceration, would interrupt Mr. Allaby's treatment and could increase his risk of a relapse. I found that permitting Mr. Allaby to serve his sentence in the community would not endanger community safety in view of his self-directed efforts at rehabilitation, which had continued up to the date of sentencing. The record on the sentencing hearing also disclosed that there was a concrete plan to continue treatment after sentencing.
57The second part of the test for imposing a CSO requires considering not only personal circumstances and mitigating factors of the offender, but also the severe wrongs and harms that he caused, his moral blameworthiness, and Parliament's prioritization of deterrence and denunciation. This second step ordinarily results in custodial sentences because of the prioritization of denunciation and deterrence.
58Denunciation is the communication of society's condemnation of the offender's conduct. The sentencing objective of denunciation reflects the fact that Canadian criminal law is a "system of values". Condemnation of those who commit sexual offences against children "must be communicated in the clearest of terms".
59Deterrence "has both a specific and general aspect". The authors of Prosecuting and Defending Offences Against Children, 2nd Edition state:
The specific aspect is to sufficiently punish an offender such that this specific person will be deterred from reoffending. The general aspect is to deter any other like-minded individuals who may consider committing the same offence, by crafting a sentence that demonstrates society's condemnation for such acts.
60In Proulx, the SCC addressed how, in some circumstances, a conditional sentence rather than a jail sentence may sufficiently address the principles of denunciation and deterrence.
61The SCC said that incarceration "will usually provide more denunciation than a conditional sentence, as a conditional sentence is generally a more lenient sentence than a jail term of equivalent duration". However, a conditional sentence with onerous conditions which is "extended beyond the duration of the jail sentence that would ordinarily have been imposed in the circumstances" can provide a significant amount of denunciation. Conditions such as house arrest should be the norm, not the exception.
62The SCC noted that the "stigma of a conditional sentence with house arrest should not be underestimated". The Court observed that "[t]he amount of denunciation provided by a conditional sentence will be heavily dependent on the circumstances of the offender, the nature of the conditions imposed, and the community in which the sentence is to be served". The SCC recognized that there is an ascending scale of denunciation depending on the circumstances:
As a general matter, the more serious the offence and the greater the need for denunciation, the longer and more onerous the conditional sentence should be. However, there may be certain circumstances in which 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.
63As for deterrence, in Proulx, the SCC stated that "[i]ncarceration, which is ordinarily a harsher sanction, may provide more deterrence than a conditional sentence". The Court cautioned that "Judges should be wary, however, of placing too much weight on deterrence when choosing between a conditional sentence and incarceration", pointing to the empirical evidence which suggests that the deterrent effect of incarceration is uncertain. The SCC went on to say"[m]oreover, 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". There may be circumstances in which the need for deterrence will warrant incarceration which "will depend in part on whether the offence is one in which the effects of incarceration are likely to have a real deterrent effect, as well as on the circumstances of the community in which the offences were committed".
64In Mr. Allaby's case, having considered the principles in Friesen, Proulx, M.M., and Pike, I found that a CSO was consistent with the fundamental purpose and principles of sentencing, especially the fundamental principle, proportionality. Notwithstanding the prioritization of denunciation and deterrence for the serious sexual offence that Mr. Allaby committed and its effect on the victim and her family, his case had sufficiently compelling personal and mitigating circumstances, and the absence of aggravating factors that made a CSO proportionate. I found that the principles of denunciation and deterrence could be met by a CSO with onerous conditions and of significantly longer duration than the jail sentence that would have been imposed, for example the 6-to-9-month jail sentence proposed by the Crown.
65An 18-month CSO with electronic monitoring for the full duration and home confinement for the first 12 months addresses the need to denounce the offending conduct in this case. Specific deterrence is of lesser concern in Mr. Allaby's case given his insight and commitment to address his risk of reoffending. However, in the circumstances, I found that an 18-month CSO with onerous conditions is sufficiently punitive to give effect to the need for general deterrence.
66Rehabilitation of the offender (s. 718(d) of the Criminal Code) and the principle of restraint (ss. 718.2(d) and (e) of the Criminal Code) cannot be elevated to equivalent or greater priority than denunciation and deterrence in determining a proportionate sentence in child sexual assault cases. However, they can be given significant weight. I considered the principles of restraint and rehabilitation and found that a lengthy CSO with onerous conditions gives appropriate weight to the mitigating circumstances and principles of restraint and rehabilitation but ensures that denunciation and deterrence are prioritized.
67I will comment briefly on the authorities provided by counsel, none of which were binding. The Crown relied on the unreported Ontario Court of Justice cases of R. v. K.B. and R. v. Johnston to support its position of a jail sentence. Defence counsel provided R. v. S.E. and R. v. T.M. as authority for the imposition of a CSO.
68The S.E. decision provides some support for the imposition of a CSO. The offender in S.E., like Mr. Allaby, had taken steps to address the root causes of his offending behaviour and was willing to continue to do so. He also had insight into the harm he had caused, was remorseful and accepted responsibility, all of which made a CSO appropriate notwithstanding the primacy of deterrence and denunciation. In this respect, S.E. demonstrates how the individualized approach to sentencing can make a CSO appropriate in a child sex assault case where significant mitigating circumstances are present.
69I did not find the other authorities that the parties provided to be of assistance as comparator cases in arriving at a proportionate sentence in Mr. Allaby's case. The Crown's cases contained aggravating factors that are not present in Mr. Allaby's case, including more significant degrees of physical interference with the victims. The Crown's cases also lacked significant mitigating circumstances that are present in Mr. Allaby's case, such as a guilty plea, insight, and participation in therapy and counselling to mitigate the risk of reoffending.
Sentencing Decision
70For the foregoing reasons, on July 31, 2025, I imposed an 18-month CSO on Mr. Allaby. I ordered that he be imprisoned for a period of 18 months and that he is permitted to serve the sentence of imprisonment in the community. He must comply with the following CSO conditions:
(1) Keep the peace and be of good behaviour.
(2) Appear before the court when required to do so by the Court.
(3) Remain in Ontario unless you have prior written permission from the Court or the supervisor to leave the province.
(4) Notify the Court or supervisor in advance of any change of name or address, and promptly notify the Court or supervisor of any change in employment or occupation.
(5) Report in person or by telephone to a supervisor immediately and after that, at all times and places as directed by the supervisor or any person authorized by a supervisor to assist in your supervision.
(6) Cooperate with your supervisor. You must sign any releases necessary to permit the supervisor to monitor your compliance and you must provide proof of compliance with any condition of this Order to your supervisor on request.
(7) Reside at [address redacted], and do not change that address without obtaining the consent of the supervisor in advance.
(8) You shall report to your Conditional Sentence Supervisor for the purpose of arranging your enrolment in the GPS program provided by the Recovery Science Corporation (RSC).
(9) After completing the intake process with your Conditional Sentence Supervisor, you shall go directly to your approved address and observe a term of complete house arrest until the required GPS unit is installed. There are no exceptions to this house arrest condition.
(10) You shall be subject to the GPS Monitoring program for the entire length of this Conditional Sentence Order.
(11) You will be subject to GPS monitoring by Recovery Science Corporation (RSC) and agree to abide by all of its rules and protocols by providing your signature on the GPS Rules and Protocols which will be attached to this Conditional Sentence Order as Schedule "A". These rules and protocols form part of this Conditional Sentence Order.
(12) The home confinement condition will be in effect for the first 12 months of the Order. Remain in your residence at all times EXCEPT:
i. between 1 p.m. and 4 p.m. every Saturday in order to acquire the necessities of life;
ii. for any medical emergencies involving you or any member of your immediate family (spouse, child, parent, sibling);
iii. for going directly to and from or being at school, employment, court attendances, religious services and legal or medical or dental appointments;
iv. for going directly to or from and being at assessment, treatment, or counselling sessions;
v. you will confirm your schedule in advance with the supervisor setting out the times for these activities;
vi. with the prior written approval of the supervisor. The written approval is to be carried with you during these times;
vii. for carrying out any legal obligations regarding compliance with this Conditional Sentence Order, including reporting as directed;
viii. to attend at Central Police Station, 155 King William Street, Hamilton, to provide DNA samples if they are not obtained in the courthouse.
(13) Following your home confinement, for the balance of the Order, remain in your residence, or on the property of your residence, at all times daily between the hours of 10 p.m. and 6 a.m. EXCEPT:
i. for any medical emergencies involving you or any member of your immediate family (spouse, child, parent, sibling);
ii. with the prior written approval of your supervisor. The written approval is to be carried with your during these times.
(14) Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with T.T. or any member of her immediate family, including E.T.T.
(15) Do not be within 100 metres of any place where you know T.T. or any member of her immediate family, including E.T.T., to live, work, go to school, frequent or any place you know them to be, EXCEPT for required court attendances.
(16) Do not possess any weapon(s) as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon, firearm part, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).
(17) You shall attend and actively participate in all assessment, counselling or rehabilitative programs as directed by your supervisor, including to address the risk of sexual offending, and complete them to the satisfaction of the supervisor and sign any release of information forms as will enable your supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
71I ordered that the CSO will be followed by a 3-year probation order. In addition to the statutory conditions of probation, Mr. Allaby will obey the following conditions of probation:
(1) Report in person or by telephone to a probation officer within two working days of the completion of your Conditional Sentence Order and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.
(2) Live at a place approved of by the probation officer and not change that address without obtaining the consent of the probation officer in advance.
(3) Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with T.T. or any member of her immediate family, including E.T.T.
(4) Do not be within 100 metres of any place where you know T.T. or any member of her immediate family, including E.T.T., to live, work, go to school, frequent or any place you know them to be, EXCEPT for required court attendances.
(5) Do not possess any weapon(s) as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, crossbow, prohibited or restricted weapon, firearm part, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person).
(6) You shall attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer, including to address the risk of sexual offending, and complete them to the satisfaction of the probation officer and sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed. You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
Ancillary Orders
72Pursuant to s. 161 of the Criminal Code, I prohibited Mr. Allaby for a period of 10 years from:
(a) attending 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 daycare centre, schoolground, playground or community centre;
(a.1) being within two kilometres of any dwelling-house where T.T. ordinarily resides;
(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years; and
(c) having any contact—including communicating by any means—with a person who is under the age of 16 years.
73Pursuant to s. 490.013(2)(b) of the Criminal Code, I made an order in Form 52 requiring Mr. Allaby to comply with the SOIRA provisions for 20 years.
74Pursuant to s. 109 of the Criminal Code, I ordered that Mr. Allaby be prohibited from possessing any prohibited firearm, restricted firearm, prohibited weapon, prohibited device and prohibited ammunition for life, and any other firearm or any cross-bow, restricted weapon, firearm part, ammunition and explosive substance for a period of 10 years.
75Pursuant to s. 487.051 of the Criminal Code, I ordered Mr. Allaby to provide samples of bodily substances reasonably required for the purpose of forensic DNA analysis to be used in accordance with the DNA Identification Act.
Released: August 6, 2025
Signed: Justice J.P.P. Fiorucci
Schedule "A": GPS RULES AND PROTOCOLS
For Conditional Sentence Orders
I agree to 24-hour GPS monitoring by the government-funded GPS monitoring program in accordance with the conditions of the conditional sentence order.
I agree to follow the conditions of the conditional sentence order including those conditions with respect to electronic monitoring, and the Rules and Protocols included here in Schedule "A".
I agree that I will follow all instructions of the GPS monitoring staff, police authorities, and Ministry of the Attorney General staff, and maintain the GPS monitoring equipment.
In the event of a malfunction of the GPS monitoring device or an issue regarding the proper maintenance and/or proper functioning of the GPS monitoring device, I will follow the instructions received from the monitoring company to troubleshoot, repair or exchange the device and if so instructed, attend the nearest police service, until the issue regarding the GPS monitoring device has been resolved.
I understand that in the event of any breach of my requirements, or damage to the equipment, immediate notification will be made by the monitoring service to the police, and/or Ministry of the Attorney General staff to be addressed accordingly. This may result in apprehension and re-incarceration.
I will wear the monitoring device and will not attempt to remove, tamper with, or otherwise interfere with the operation of the device, or any related equipment.
I give my consent for the monitoring company to release my monitoring information, both real time and historic, and my other personal information, to the relevant authorities including Probation and Parole Officers, police services, for purposes of investigating and enforcing compliance with this order. Recipients of my information might include any and all police services, any prosecutorial authority and any court having jurisdiction respecting enforcement of this order. Recipients may also include sentence administration authorities if I am serving any form of sentence during the currency of this order. I understand that my information may be released under this paragraph at any time, any number of times, without judicial authorization and without additional notice to me. I waive any expectation of privacy I have against the release or sharing of my information as described in this paragraph.
I authorize the monitoring service to record any or all phone calls or other communications between myself and the monitoring service.
Where applicable, I will promptly answer my telephone, regularly check and immediately reply to telephone messages, text messages, email messages or other communications relayed to me from the monitoring service and/or their agents. I will cooperate fully with instructions received.
I will attend when and where to directed by the monitoring service for any purpose associated with the monitoring of the GPS conditions.
I will promptly answer the door and allow the monitoring service representatives and/or their agents to enter the home with or without an appointment for the purpose of inspecting or maintaining the monitoring equipment and, if desired for the safety of its staff, with police accompaniment.
I will charge the GPS monitoring device 2 hours continuously every day. A vibration will be felt when the device battery is getting low. When a Critical Battery Alert is received, the siren on the GPS monitoring device will be activated and continue to alarm until I begin charging. If this protocol is not adhered to, local police will be called to intervene, which could result in apprehension and re-incarceration. DO NOT CHARGE WHEN SLEEPING.
I will not swim while wearing the GPS monitoring device and I will never immerse it in water. Showers are recommended over baths – if a bath is necessary, the bracelet must be kept out of the water.
If and when I feel two (2) vibrations consecutively, I understand that this is a signal that I must contact the Recovery Science Corporation immediately at 1-877-595-2573.