Reasons for Judgment on Sentencing
Ontario Court of Justice
Between:
His Majesty the King
— And —
P.T.
Before: Justice B. Green
Released electronically: September 23rd, 2025
Counsel
Ms. K. Beard — counsel for the Crown
Mr. D. Mcfadden — counsel for the defendant P.T.
Non-Publication Order
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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
A. Introduction
1On the first day that this matter was scheduled to proceed to trial, Mr. P.T. plead guilty to one count of sexual interference contrary to section 151(b) of the Criminal Code for kissing and groping the breast area of his teenage stepdaughter. The crown elected to proceed by summary conviction which is important because of the statutorily prescribed maximum penalty of two years less a day and the impact this election has on the imposition of a S.O.I.R.A. order.
2Counsel and the crown worked diligently to prepare an agreed statement of facts. Their professionalism and dedication to resolve this matter is commendable. The agreed statement of facts was filed as an exhibit. Mr. P.T. admitted the following facts:
Ms. M.G. and Mr. P.T. were in a relationship and share a 5-year-old daughter together. Ms. M.G. has a daughter from a previous relationship, Ms. N.S. Ms. N.S. resided with Mr. P.T. and her mother. She was 14 years of age at the time of the offence.
In November of 2023, Ms. N.S. confided in her mother that Mr. P.T. had previously inappropriately touched her during an incident in the car. Her mother called Mr. P.T. to the basement where the trio discussed the allegations. This discussion was recorded on a cell phone. Mr. P.T. was aware that he was being recorded. He made an inculpatory statement, confirming Ms. N.S.'s version of events. He claimed that he was "swirling" with emotion at the time.
The matter was reported to police and Ms. N.S. made a recorded statement that:
Sometime between May to June 2023, Mr. P.T. picked her up from her boyfriend's house and went for a drive. The two were holding hands and talking about Mr. P.T.'s son who had recently passed away. Mr. P.T. drove down a back road and pulled the vehicle over to the side of the road and parked.
Once stopped on the side of the road, Ms. N.S. reported that Mr. P.T. was looking at her weird, making her uncomfortable. He then reached across the car and began kissing her neck. She was wearing a tank top at the time. Mr. P.T. proceeded to pull at her bra strap, touching Ms. N.S.'s breast area over her bra. She pulled her bra strap back up. He had his hand on her thigh. Ms. N.S. pushed him away from her. Mr. P.T. stopped his advances and drove home.
Mr. P.T. later apologized to Ms. N.S. for what happened, saying it was inappropriate and that he would not do it again.
3Mr. P.T. was arrested within a few days of the matter being reported to police. He was released on bail. There has been no contact between Mr. P.T. and his stepdaughter since the date of his arrest, almost 2 years ago, in November of 2023. He is also estranged from the biological daughter that he shares with the victim's mother. The victim and her mother filed compelling victim impact statements outlining the devastating aftermath of Mr. P.T.'s crime.
4The crown emphasized the egregious circumstances of the offence. A man who acted as a father figure to a young teenage girl brought her to an isolated place and, at a time when they were both grieving, he abused his position of trust and authority by violating her sexual integrity. The crown forcefully submitted that the fit sentence is a period of incarceration of 18 months to be followed by 3 years probation as well as a 161 order for a period of 20 years to protect other young girls in the future, a SOIRA order for 10 years and an order for the taking of a DNA sample.
5In contrast, counsel focussed primarily on the circumstances of the offender as well as the absence of certain aggravating facts. Counsel highlighted the mitigation of the plea of guilty. Mr. P.T. expressed remorse almost immediately after the offence when confronted by his wife. He has no criminal record. He was struggling with extreme grief and mental health issues when he committed this crime. He has invested in counseling and there is significant potential for his rehabilitation.
6Considering the unusual circumstances leading up to the commission of this offence and Mr. P.T.'s ongoing commitment to getting mental health help, counsel urged the court to sentence him to a conditional sentence in the range of eighteen months to two years. The conditional sentence can be followed by three years of probation which will ensure that Mr. P.T. is supervised in the community and Ms. N.S. has the comfort of court orders protecting her from him for the next five years. Counsel initially opposed the imposition of either a section 161 order or a SOIRA order because they are disproportionately punitive for this offender and this offence. In further written submissions, counsel conceded that there are grounds for making a 161 order but submitted that certain terms are disproportionately punitive, and it should only be 3 years in duration. Counsel maintained the position that a SOIRA order should not be made because there is no connection between the imposition of the order and the objectives of the legislation.
7Since the Supreme Court of Canada's watershed decision in R. v. Friesen, 2020 SCC 9, the sentences for these types of offences have been steadily increasing across Canada. The Supreme Court and the Ontario Court of Appeal have repeatedly stressed that, absent exceptional circumstances, a conditional sentence is not a proportionate disposition. Of course, that does not mean it is not an available penalty.
8I must determine the fit and proportionate sentence having regard to the aggravating and mitigating facts, the guiding principles of sentencing as well as considerations of restraint for a first offender and parity with sentences for similar offences and similar offenders.
B. Additional Facts and Legal Analysis
i. Aggravating Features of the Offence
9Mr. P.T. assumed the role of a parental figure and caregiver in Ms. N.S.'s life. She trusted him, relied on him, and cared deeply for him. They were together that day to commiserate and share their mutual grief. She was consoling her stepfather when he breached her trust in him.
10Undoubtedly, Mr. P.T. was devastated by the sudden death of his son. However, he is not the only person who suffered from this terrible loss. His stepdaughter, Ms. N.S., was also grieving the loss of her stepbrother. Instead of offering Ms. N.S. support, guidance and empathy as her parent, Mr. P.T. preyed on her emotional vulnerability.
11As a 14-year-old girl in this situation, Ms. N.S. was a susceptible child deserving of protection from harm. In the seminal decision of R. v. Friesen, supra, the very first footnote of the judgement states:
For the purposes of these reasons, the terms "child" and "children" mean persons under the age of 18. References to "boys""girls""young women""young people""youth""teenagers", and "adolescents" should all be understood to refer to persons who are children. Where specific statutory provisions distinguish between persons under the age of 16 and persons under the age of 18, we make this clear in the reasons.
12In R. v. Bertrand Marchand, 2023 SCC 26 at paras 30 and 31, the Supreme Court reiterated that more punitive sentences are necessary to reflect the enduring harm caused by the sexual violation of children:
Friesen recognized that the focus of the legislative scheme of sexual offences against children has shifted to protect a child's personal autonomy, bodily integrity, sexual integrity, dignity and equality. The Court outlined how sexual offences against children produce profound physical and psychological harms to the most vulnerable members of our society. It was deeply concerned with how the sexual assault of children may produce shame, embarrassment, unresolved anger, a reduced ability to trust and fear that other people would also abuse them (Friesen, at para. 57). It set out the disproportionate impact of violence on girls, women, Indigenous persons and other vulnerable groups.
Friesen sends the clear message that sentences for these crimes must account for the far-reaching and ongoing damage sexual violence causes to children, families and society at large, which may take many years to manifest. Consequently, sentences for offences involving sexual violence against children must generally increase to reflect society's modern understanding of such offences and Parliament's choice to increase the sentences associated with these crimes (paras. 3-5). [citations omitted]
13Any violation of the sexual integrity of a child is a grave offence that merits a denunciatory sentence because of the lasting trauma and damage caused to the victims, their families and society. Counsel and the crown were careful and thoughtful during their submissions. They referenced that the nature of the offensive acts was not at the more serious end of the spectrum while acknowledging the directions from the Supreme Court of Canada to treat this type of offence as a serious crime. This sensitivity aligns with the Supreme Court's caution in R. v. Friesen, supra, about the "dangers of defining a sentencing range based on penetration or the specific type of activity at issue" for four reasons:
At para. 141: First, defining a sentencing range based on a specific type of sexual activity risks resurrecting at sentencing a distinction that Parliament has abolished in substantive criminal law. Specifically, attributing intrinsic significance to the occurrence or non-occurrence of penetrative or other sexual acts based on traditional notions of sexual propriety is inconsistent with Parliament's emphasis on sexual integrity in the reform of the sexual offences scheme.
At para 142: Second, courts should not assume that there is any clear correlation between the type of physical act and the harm to the victim. In assessing the significance of the degree of physical interference as a factor, as Christine Boyle writes"judges should think in terms of what is most threatening and damaging to victims". Judges can legitimately consider the greater risk of harm that may flow from specific physical acts such as penetration. However, as McLachlin J. explained in McDonnell, 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. Sexual violence that does not involve penetration is still "extremely serious" and can have a devastating effect on the victim. This Court has recognized that "any sexual offence is serious" and has held that "even mild non-consensual touching of a sexual nature can have profound implications for the complainant". The modern understanding of sexual offences requires greater emphasis on these forms of psychological and emotional harm, rather than only on bodily integrity. [citations omitted and emphasis mine]
At para, 144: Specifically, we would strongly caution courts against downgrading the wrongfulness of the offence or the harm to the victim where the sexually violent conduct does not involve penetration, fellatio, or cunnilingus, but instead touching or masturbation. There is no basis to assume, as some courts appear to have done, that sexual touching without penetration can be [TRANSLATION] "relatively benign". Some decisions also appear to justify a lower sentence by labeling the conduct as merely sexual touching without any analysis of the harm to the victim. Implicit in these decisions is the belief that conduct that is unfortunately referred to as "fondling" or "caressing" is inherently less harmful than other forms of sexual violence. This is a myth that must be rejected. Simply stating that the offence involved sexual touching rather than penetration does not provide any meaningful insight into the harm that the child suffered from the sexual violence.
At para 145: Third, we would emphasize that courts must recognize the wrongfulness of sexual violence even in cases where the degree of physical interference is less pronounced. Of course, increases in the degree of physical interference increase the wrongfulness of the sexual violence.
At para 146: Fourth… there is no type of hierarchy of physical acts for the purposes of determining the degree of physical interference… physical acts such as digital penetration and fellatio can be just as serious a violation of the victim's bodily integrity as penile penetration. Similarly, it is an error to assume that an assault that involves touching is inherently less physically intrusive than an assault that involves fellatio, cunnilingus, or penetration. For instance, depending on the circumstances of the case, touching that is both extensive and intrusive can be equally or even more physically intrusive than an act of fellatio, cunnilingus, or penetration. [emphasis mine]
14While making submissions about the nature of the acts, the crown invited me to consider the frightening possibilities of what "could" have happened if Ms. N.S. had not stopped Mr. P.T.'s sexual advance. I agree that Ms. N.S. was courageous in the face of such a shocking event especially when she was reeling from her own grief. Nevertheless, I cannot sentence Mr. P.T. for speculative assumptions about what could have happened next. For example, I would not have accepted a submission from counsel that his client would have stopped himself even if his stepdaughter had not prevented further harm. He will be sentenced for what happened that day, which was a significant and detrimental breach of trust.
15Tragically, this case is no different from countless others in terms of the devastating impact of Mr. P.T.'s selfish choice to violate his stepdaughter's sexual integrity. The act itself may have been momentary, but the effect is long lasting. That moment has played over and over again in the mind of a child.
16Ms. N.S. filed a victim impact statement that outlined her continued suffering because of Mr. P.T.'s violation:
"The offence" caused her to "lose sleep, have nightmares and be extremely upset at random times". She is suffering from "flashbacks".
She feels "scared to trust anyone" for fear she may be victimized again. She is "not comfortable walking alone anymore". Ms. N.S. is very scared to see Mr. P.T. again.
She has fallen behind in school from missing days to prepare for the trial and the overall stress.
She is struggling with the "huge effect on my family". She is "so sad" for her little sister. Moreover, she is shouldering a burden no child should bear. Her stepfather was living with them for five years. She is worried about her mom struggling to make ends meet with out his support payments. It is hard for her mom to pay for any of her extra curricular activities.
17Mr. P.T.'s partner, the mother of N.S., also filed a victim impact statement detailing the impact on her, their other daughter, and the ripple effect of this crime. Every aspect of their lives has been turned upside down. Many domestic and sexual offences are not reported to the police because of legitimate fears about the financial impact of the loss of income when one parent is suddenly extricated from the family home. Despite these concerns, Ms. M.G. prioritized her daughter's safety. She related that:
She is "unable to work, due to anxiety and PTSD". She lives in "fear for my children, as the one person I thought I could trust with my most precious beings committed an act of betrayal beyond measure. She has been "unable to sleep without medication due to nightmares and panic attacks." She is very scared to see Mr. P.T. again.
She feels "insurmountable grief and guilt as her (Ms. N.S.'s) childhood innocence was stripped away by someone who played a significant parental role in her life".
Their younger biological child is confused about why her father left them and why he hurt her "sissy".
Ms. M.G. is frustrated that Mr. P.T. has used his grief as "an excuse for this crime". Their "grief process was stunted" as they "were still hurting severely from the loss of our son" and the victim's stepbrother.
Ms. M.G. has had to carry the "mental, emotional and financial load of being their only parent".
This crime "has completely destroyed our family financially". She is entirely responsible for supporting both of her daughters on a limited income which "has become a crushing weight".
18These predatory crimes destroy families, irreversibly alter the course of young lives, and leave a path of financial, emotional and psychological destruction. Regardless of the nature of the violation of Ms. N.S.'s sexual integrity, the results are wretchedly the same.
19It is essential to try to break this ongoing cycle of sexual violence by adult predators of children through consistently denunciatory and deterrent sentences in the hopes that it will help to protect our society's most vulnerable members. Nevertheless, to achieve a balanced sentence, I must also consider any mitigating considerations with respect to this offender, his potential for rehabilitation and the other applicable principles of sentencing.
ii. Mitigating Circumstances of the Offender
20Mr. P.T. is 52 years old. He has no prior record. He entered a plea of guilty on the trial date. While it is not an early plea, Mr. P.T. still has the benefit of some mitigation because it avoided the necessity of Ms. N.S. having to endure the rigours of a trial.
21Between the date of the offence and the disclosure to police, there were no further attempts or advances towards the victim. In addition, when confronted with the accusation, he immediately validated the victim's trauma and confirmed her account. He expressed remorse and offered reassurance that it would never happen again.
22A presentence report was prepared and provided considerable background information. Mr. P.T. was raised in a prosocial family with a positive upbringing. He did well in school. He was the valedictorian of his class and an "Ontario scholar". He maintained steady employment for many years in the "film industry, promotional video creation and media" (p. 5 PSR). Despite a steady work history, Mr. P.T. is currently unemployed while attending to his mental health issues and awaiting the outcome of these proceedings. Counsel advised that this conviction would make it difficult, if not impossible, for Mr. P.T. to work in his chosen profession.
23In terms of his family, Mr. P.T. maintains a positive relationship with his mother. He is living with her while sorting out his personal affairs. He has chosen not to confide in his mother or his sister about the offence he committed against his stepdaughter. Mr. P.T.'s mother and sister are supportive of him but neither one of them are aware of the nature of his crime (p. 4 of the PSR). As a result, they are not well positioned to reinforce denunciation of his crime and/or ensure that he gets the specific counselling that he needs to address an attraction to and violation of a child in his care.
24Mr. P.T. was married to another woman many years ago. He is the parent of three children from that union, including a son who died suddenly in March of 2023 of an overdose at the young age of 19 years old. His son died a couple of months before this offence. Mr. P.T. has "endured considerable trauma and emotional upheaval" because of his son's unexpected and preventable death. He is not alone in this loss. All his children, including his stepdaughter, and their mothers were suffering too.
25Mr. P.T. was residing with Ms. M.G. when his son passed away. His son was living with them, along with their 6-year-old biological child and the victim, his stepdaughter. His son died in their home. Everyone in that home was suffering with grief from such a tragic death. Mr. P.T.'s misconduct exacerbated their continued suffering.
26Mr. P.T. is estranged from his two daughters from his first marriage. There is so much familial tension between them that there were separate services for their son. Mr. P.T. has also alienated the stepdaughter he purported to love, and he is estranged from his youngest daughter because of this offence. He had the option of seeing his youngest child at a visitation center, but he chose not to do so. Mr. P.T. presents as an individual who is so focussed on his own opinions and his own feelings that he has little regard for how his conduct alienated his family and his children when they needed him the most.
27Mr. P.T. invested in significant counselling with a psychotherapist after the commission of this offence. According to his therapist he has demonstrated a "high level of engagement" and exhibited "strong commitment" to the process. He had a set back in March of 2025 close to the two-year anniversary of his son's death. He tried to take his own life although he quickly abandoned his intentions. He was taken to the hospital and initially released but he was subsequently hospitalized for a period of 7 days (p. 9 of the forensic assessment). He was prescribed mood stabilizing medication. Since that time, he has been mentally incapable of working and unable to pay child support which has exacerbated the financial toll that this crime has had on his dependent family. In addition to counseling and reporting to a psychiatrist, Mr. P.T. is meeting with a CMHA worker.
28Mr. P.T. participated fully with a probation officer for the purpose of the preparation of a presentence report. He also engaged in a forensic assessment to determine the risk that he poses to commit further offences. A clinical and forensic psychologist reviewed the agreed statement of facts, the presentence report, spent 7 hours engaged in interviews with Mr. P.T. "in person" and performed a series of psychometric tests with him. In the psychological assessment, the doctor noted the following discussions with Mr. P.T. about the offence:
Mr. P.T. stated that he is most attracted to women between the ages of 40 and 52. He denied any interest or sexual attraction to pre-pubescent children (pedophilia) and pubescent children (hebephilia) as well as postpubescent teens. He denied ever viewing child pornography (p. 12).
Mr. T. explained that the index offence occurred three months after his son died. On that day he was picking up his stepdaughter, who was 14 years old at the time, from a friend's home. During the 15-minute drive home, a song that A. loved came on which caused him to become emotional and cry. His stepdaughter grabbed his hand, and they continued driving. Mr. T. stated that because life at home was chaotic, sometimes he and the victim would go for drives to avoid being at home.
When he stopped, he said "sorry" and they drove home. Mr. T. relayed that he "should" have told the victim's mother when they returned home, but he feared her reaction. Mr. T. believes that the information came forward in November when the victim was encouraged by her boyfriend to tell her mother. He relayed that when M. approached him about the incident, he took responsibility. Mr. T. chose to leave the familial home after speaking with M. as he felt ashamed and was experiencing depression symptoms. He "disappeared", and police located him at a motel. He was adamant that he was not a danger to himself at that time but did not know what to do.
When speaking about the offence, Mr. T. did not engage in denial, minimization, or victim blaming. He stated that what he did was "inexcusable" and he "feels awful" for what he did to the victim. He believes that his actions came from being overwhelmed with grief following the death of his son, being estranged from his daughters, fighting with his ex-wife, and believing that he had to care for everyone else at that time. He explained that his behaviours were "a breach of trust" towards his stepdaughter and that he is ashamed he has put her through this. He commented that he wants to be sure she is ok and that she does not take any blame for the event or the aftermath with the separation of him and M. [emphasis mine]
29Mr. P.T.'s genuine grief over the death of his son is not a logical explanation, justification or excuse for preying on his vulnerable stepdaughter. Quite the contrary, his moral culpability is higher in these circumstances because he knew how helpless she was at that time due to her own grief from their shared loss. He used the compassion and concern of a loving child to opportunistically seek sexual gratification. His predatory misconduct is appalling.
30Although Mr. P.T. participated in various psychometric tests to evaluate any paraphilias and/or future risk to other vulnerable victims, the results of the tests are of very limited assistance because of the possibility of "socially desirable responding also known as faking or lying":
Mr. T.'s score is considered "probably" invalid in that he responded in a way that is considered "faking good" or presenting himself in a favorable manner, endorsing desirable traits and rejecting undesirable ones (p. 15 of the assessment).
And further
Certain indicators do fall outside of the normal range, suggesting that Mr. P.T. may not have answered in a completely forthright manner. The nature of his responses may lead to a somewhat inaccurate impression of Mr. P.T. Specifically, with respect to positive impression management, Mr. P.T.'s pattern of responses suggest he tends to portray himself as being relatively free of common shortcomings to which most individuals will admit, and he is somewhat reluctant to recognize minor faults in himself. Given this tendency to repress undesirable characteristic, the interpretive hypotheses for this measure should be reviewed with caution. Although there is no evidence to suggest an effort to intentionally distort the profile, the results may underrepresent the extent and degree of any significant findings in certain areas due to Mr. P.T.'s tendency to avoid negative or unpleasant aspects of himself. Despite the level of defensiveness noted above, there are some areas where Mr. P.T. described problems of greater intensity than is typical of defensive respondents. These areas could indicate problems that merit further inquiry. These areas include impact of traumatic events; stress in the environment; thoughts of death or suicide; and feelings of helplessness. With respect to negative impression management, there is no evidence to suggest that Mr. P.T. was motivated to portray himself in a more negative or pathological light than the clinical picture would warrant. [emphasis mine]
31In addition to Mr. P.T.'s tendency to underrepresent his issues, his attitude towards rehabilitation is quite troubling. He does not possess any significant incentive to address the underlying issues that motivated this offence to ensure that it won't ever happen again:
Mr. P.T.'s interest in and motivation for treatment is somewhat below average in comparison to adults who are not being seen in a therapeutic setting. Furthermore, his level of treatment motivation is substantially lower than is typical of individuals being seen in treatment settings. His responses suggest that he is satisfied with himself as he is, that he is not experiencing marked distress, and that, as a result, he sees little need for changes in his behavior.
32It is not just his attitude towards counseling that is disconcerting. The report referenced that Mr. P.T. exhibited "defensiveness and reluctance to discuss personal problems which could lead to early termination" of treatment. As a result of these findings in the report, the opinion that he is in a "below average risk category for being charged and convicted of another sexual offence in the future" is dubious.
33In addition to the test scores, the doctor relied on various other considerations like the impulsivity and brevity of the offence, the lack of any expressed attraction to children or criminal antecedents, Mr. P.T.'s history of relationships with adult females and his altered mental state at the time of the offence. In spite of the noted reservations, the author concluded that there were no concerns about pedophilia, hebephilia or other similar paraphilias.
34The doctor opined that addressing Mr. P.T.'s current stagnation and healing from his grief could ameliorate any concerns for recidivism. It would be beneficial for Mr. P.T. to get back to work, make positive contributions and invest in his mental wellbeing. It was recommended that he would benefit from "psychoeducation around consent as well as victim empathy and impact". The doctor was emphatic that Mr. P.T. should not, however, participate in group therapy with higher risk offenders as that may increase his risk to reoffend.
35In terms of the request that has been made by the crown for a lengthy 161 order, there is evidentiary support for the crown's application in the assessment report. The doctor, who spent a considerable period interviewing Mr. P.T. and performing tests with him, recommended:
Additional risk management recommendations for Mr. P.T. while being monitored in the community by the criminal justice system would be not having unsupervised contact with children under the age of 16 and avoiding public areas where children under the age of 16 are likely to attend unless accompanied by a responsible adult. A responsible adult is considered an individual who is aware of Mr. P.T.'s offence, does not minimize the offence, and is willing to supervise him. Further, he should not be able to obtain employment or volunteer in a capacity that involves being in a position of trust or authority towards anyone under the age of 18.
36While considerable attention was focussed on Mr. P.T.'s grief and related depression, there appeared to be some deeper personal issues that may have contributed to this offence. At first, Mr. P.T. reported to the probation officer that he had not experienced any childhood trauma. That was not true. Recently, he disclosed that he was the victim of childhood sexual abuse. There are a multitude of decisions that speak to the lasting harm of sexual abuse including the perpetuation of the cycle of offending misconduct. The victims sometimes become offenders. Mr. P.T. needs help to come to terms with his own past to ensure his rehabilitation.
37Mr. P.T. has consistently expressed remorse for the harm that he caused to Ms. N.S. and their family. The probation officer reported that Mr. P.T. related "extreme regret over the harm caused to the young victim, citing being grief stricken over the profoundly traumatic mistreatment" of the victim (p. 5 PSR). Mr. P.T. made a public statement during the sentencing expressing his deep shame and remorse with respect to the commission of this offence.
38While he has shown considerable remorse, it is disturbing that he continues to attribute this sexual offence to his grief even though his son died 3 months prior to this offence. He feels that his ability to think rationally was compromised at that time"although admittedly this does not absolve him of accountability". Mr. P.T. lacks much needed insight into his real motivation for committing a sexual offence against a child who was also grieving that day. Grief cannot possibly explain or justify the predatory sexual abuse of a child by a parental figure in a position of trust regardless of how impulsive or spontaneous the act.
39Mr. P.T. needs to develop much more insight into the precipitating factors for his misconduct. I do not, however, agree with the crown that his apologies to the victim rang hollow. Mr. P.T. appreciates and seems to understand that what he did was wrong and extraordinarily harmful to Ms. N.S. Moreover, I disagree that his expressed remorse through a plea of guilty is disingenuous because it occurred on the first day this matter was scheduled to proceed to trial. In R. v. Griffiths, 2025 ONCA 511 at para 16, the Court of Appeal cautioned that:
This reasoning is legally flawed. First, the trial judge erred by equating the appellant's decision to proceed to trial with a lack of remorse warranting an increased sentence. As Di Luca J. explained in R. v. Lu, 2022 ONSC 1918, at para. 58:
A plea of not guilty is not inconsistent with [a] claim of remorse. While a guilty plea is, inter alia, a sign of remorse, a person can be remorseful for having committed an offence while nonetheless exercising their constitutional right to a trial. The two are not incompatible.
Second, although he did not expressly cite it as an aggravating factor, the trial judge erred in appearing to increase the appellant's sentence because she exercised her right to a trial rather than plead guilty. As this court held in R. v. Reeve, 2020 ONCA 381 at para. 20: "Accused persons are entitled to put the Crown to its proof and cannot be punished or seen to be punished after-the-fact, simply because the Crown met that burden."
40By all accounts, Mr. P.T. immediately accepted responsibility for the offence when he was confronted by his wife. Thereafter, his life unravelled because of his deteriorating mental health issues and dramatic changes in his life. He had to leave his home and biological daughter. He lost his job. He contemplated suicide.
41The Supreme Court indicated in R. v. Lacasse, 2015 SCC 64 at para 81 that "a plea entered at the last minute before the trial is not deserving of as much consideration as one that was entered promptly". Although a plea of guilty at the earliest opportunity would have avoided further harm to his stepdaughter, there were many important factors that contributed to the delay in standing up in a court and openly admitting what he did to her.
42Despite the timing of the plea, it is mitigating that Mr. P.T. unequivocally accepted responsibility for this egregious breach of trust. He reinforced that Ms. N.S. was not in any way responsible for his acts. A finding of guilt by a court after a trial cannot achieve the same closure and validation as a public plea of guilty.
iii. Collateral Consequences of Incarceration
43Collateral consequences because of an offence can be a factor in the ultimate determination of the sentence. In R. v. Suter, 2018 SCC 34 at para. 48 (S.C.C.), Justice Moldaver, writing on behalf of the majority, explained that:
The relevance of collateral consequences stems, in part, from the application of the sentencing principles of individualization and parity: ibid.; s. 718.2(b) of the Criminal Code. The question is not whether collateral consequences diminish the offender's moral blameworthiness or render the offence itself less serious, but whether the effect of those consequences means that a particular sentence would have a more significant impact on the offender because of his or her circumstances. Like offenders should be treated alike, and collateral consequences may mean that an offender is no longer "like" the others, rendering a given sentence unfit.
44Notably, Justice Moldaver went on to explain that when the collateral consequences are so directly linked to the circumstances of the offence "as to be almost inevitable", the mitigating impact or attenuation of the sentence is substantially diminished: Suter, supra, at paras 49 and 50.
45The Ontario Court of Appeal recently reiterated in R. v. Habid, 2024 ONCA 830 at 42 and 43 that the impact of incarceration on an offender's family is a relevant consideration but it must not overwhelm the sentencing considerations:
As recognized in R. v. Spencer (2004), 72 O.R. (3d) 47 (C.A.), at para. 46, leave to appeal refused, [2005] S.C.C.A. No. 4, it is an unfortunate reality that sentencing defendants to prison often harms their families. Family members are deprived of the defendant's love and care and suffer the emotional pain of separation. They must often assume the added burdens of the breadwinning and caregiving responsibilities that the defendant formerly performed. Further, they may suffer financial hardship, educational deprivation, and even the loss of the family residence. As well, being unable to care and provide for their families increases the severity of incarceration for defendants.
The courts have been careful not to let these consequences overwhelm the other principles of sentencing. As emphasized in Spencer, these consequences are not an excuse to overlook the harm that the defendant's criminal conduct caused victims of crime, or the importance of protecting those victims and society, or the need for denunciation and deterrence. Likewise, family separation may have a reduced impact on the sentence if its effects on defendants and their families are less strong. Further, these consequences cannot justify imposing a disproportionate sentence. Thus, this court has sometimes imposed or affirmed significant prison sentences to respect the other principles of sentencing even after accounting for family separation consequences. [extensive citations omitted]
46To be fair, counsel for Mr. P.T. did not urge me to consider the collateral consequences of incarceration. Mr. P.T. has already lost access to his home, lost his job, and his marriage is irreparable. This was an issue that I asked the crown to address because of the terrible financial impact this offence has had on the victim, her sister and her mother. Their standard of living changed considerably in March of this year after Mr. P.T.'s suicide attempt and his spiralling mental health crisis. He has been unable to work, and his estranged wife has been unable to make ends meet in their home. The victim has not had the benefit of continued extracurricular activities that she enjoys because of this lost familial income.
47Mr. P.T. may not be able to return to his former career, but there are other jobs available to people who are prepared to work hard regardless of the nature of the employment. In addition, the doctor opined in the assessment report that returning to work would assist Mr. P.T.'s rehabilitation.
48I queried whether the crown had considered that a conditional sentence could require Mr. P.T. to seek and maintain gainful employment and pay support as per the family court guidelines to lessen the financial impact of the offence. Considering the uncertainty of the defendant's ability to obtain employment and/or pay support and the victim's input, the crown maintained the position that a period of incarceration is the only proportionate penalty.
49The crown's position was informed by the predominant sentencing principles and victim input. I appreciate that no penalty, short of actual incarceration, would seem fair or just to Ms. N.S. However, when sentencing this offender, my focus is not solely on one aspect of sentencing; a conditional sentence vs. a custodial sentence. Rather, the entire disposition including the punitive impact of any additional orders must be considered in totality to achieve a proportionate sentence.
iv. Potential Risk of Recidivism
50Considering the limitations of the assessment of Mr. P.T.'s risk with respect to the commission of similar offences or any offence in the future, I do not have confidence in the findings that he is a low risk to reoffend. In addition, he is deliberately shielding his support system from the true nature of his crime, so they cannot encourage him to seek the specific help that he needs to avoid similar crimes. He seems so entrenched in his own suffering and mental health challenges that he appears to lack empathy for the members of his family who also experienced a traumatic loss. Moreover, he continues to attribute his misconduct to grief and trauma which cannot explain the choice to violate the sexual integrity of a child.
51In R. v. Walker, 2021 ONCA 863, the Ontario Court of Appeal observed that:
In addition, in the case at bar, the thrust of the defence submission was that the appellant posed a low risk to re-offend and that a conditional sentence was fit in the circumstances. In considering that argument and the issue of future dangerousness, it was open to the trial judge to consider that the appellant did not appear to understand the seriousness of the offences: [emphasis mine]
52Mr. P.T. appears to understand the seriousness of the offence in terms of the harm that he caused to his stepdaughter and family, but he has not honestly addressed why he committed it. He continues to blame his grief instead of grappling with the real issue of his sexual attraction to a child.
53Any character evidence included in the presentence report about his risk to commit further offences was obtained from people who do not know what Mr. P.T. has done wrong so it is of limited, if any, weight. More importantly, I am guided by the directions of the Supreme Court of Canada in R. v. Profit, [1993] S.C.R. 637 that:
The reasons of the trial judge must be viewed in light of the fact that as a matter of common sense, but not as a principle of law, a trial judge may take into account that in sexual assault cases involving children, sexual misconduct occurs in private and in most cases will not be reflected in the reputation in the community of the accused for morality. As a matter of weight, the trial judge is entitled to find that the propensity value of character evidence as to morality is diminished in such cases. [emphasis mine]
54Similarly, in R. v. K.M., 2017 ONSC 2690, Justice Edwards reiterated that:
Sexual offences are, by their very nature, generally perpetrated in private. It is largely for that reason that many cases of sexual assault are characterized as a "he said, she said" type of case. The Supreme Court of Canada has made it quite clear that the good community reputation of an accused has little probative value in the overall assessment of an appropriate sentence in a case of sexual assault. [emphasis mine]
55There are innumerable sentencing decisions, across Canada, with offenders of supposedly stellar character and/or no criminal records, committing inexcusable acts of depravity, violence and/or sexual abuse. Generations of children, women and men, the socioeconomically disadvantaged and the vulnerable have fallen prey to predators. When victims find the strength or have the means to report their abuse, their abusers often hide behind carefully constructed façades of respectability to avoid being held fully accountable for their actions.
56I do not know what risk Mr. P.T. will pose to the safety of other children in the future. I have considered that this sexual violence was an unplanned, spontaneous and momentary predatory offence. I accept that Mr. P.T. is committed to getting help for his mental health issues and he will invest in any counselling that he is directed to complete including appropriate sexual boundaries and addressing his attraction to a young person in his care. I accept that Mr. P.T. is likely to abide by court orders. Nevertheless, I am concerned that there is some risk for recidivism if he finds himself in a similar situation with another vulnerable child especially considering the doctor's observations about Mr. P.T.'s stagnation towards offence specific counseling. Accordingly, there must be protective orders in place to ensure that other young girls are not put at risk.
vi. Principles of Sentencing
57The fundamental purpose of sentencing is 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 and to the community.
58Section 718 of the Criminal Code provides that any sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. As a result, depending on the circumstances of the offence and the circumstances of the offender, a Court may focus on specific principles of sentencing as the most important factors to guide the Court's decision.
59Unquestionably, the predominant sentencing principles in sexual assault cases with vulnerable child victims are general deterrence and denunciation. The Criminal Code was amended to reiterate the primary importance of these sentencing principles:
Objectives — offences against children
718.01 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.
Objectives — offence against vulnerable person
718.04 When a Court imposes a sentence for an offence that involved the abuse of a person who is vulnerable because of personal circumstances — including because the person is Aboriginal and female — the Court shall give primary consideration to the objectives of denunciation and deterrence of the conduct that forms the basis of the offence. [emphasis mine]
60In addition, section 718.2 of the Criminal Code specifically directs that a Court "shall also take into consideration", when sentencing Mr. P.T., the following statutorily aggravating factors:
(ii) evidence that the offender, in committing the offence, abused the offender's intimate partner or a member of the victim or the offender's family,
(ii.1) evidence that the offender, in committing the offence, abused a person under the age of eighteen years,
(ii.2) evidence that the offender involved a person under the age of 18 years in the commission of the offence,
(iii) evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim,
(iii.1) evidence that the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation,
61All these statutorily aggravating factors are present in this case. Unquestionably, the predominant principles of sentencing are denunciation and deterrence, both specific and general, however, rehabilitation remains an important goal with any sentencing particularly in a case involving a person with no criminal record.
vii. Principle of Restraint
62Sentencing is a delicate balancing act of competing considerations to achieve a just disposition. Courts in Canada have been unequivocal that the lack of any criminal antecedents should weigh very heavily in terms of tipping the scales towards a more lenient sentence.
63Except for very serious offences or crimes of violence, the primary objectives when sentencing a first offender are considerations of individual deterrence and rehabilitation. Please see: R. v. Stein (1974), 15 C.C.C. (2d) 376 (Ont.C.A.). These objectives are best achieved by non-custodial sentences. This principle of restraint was codified in section 718.2 of the Criminal Code:
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
64There are some offences, like the sexual abuse of a child, that are so serious that the paramount principles of denunciation and deterrence demand a lengthy custodial sentence despite a lack of any criminal antecedents. The Supreme Court of Canada in R. v. Lacasse, supra, at para 12 explained:
The more serious the crime and its consequences, or the greater the offender's degree of responsibility, the heavier the sentence will be. In other words, the severity of a sentence depends not only on the seriousness of the crime's consequences, but also on the moral blameworthiness of the offender. Determining a proportionate sentence is a delicate task. As I mentioned above, both sentences that are too lenient and sentences that are too harsh can undermine public confidence in the administration of justice.
65It would be an error in principle to give "primary" consideration to rehabilitative objectives by unduly focussing on the offender's mitigating factors and the impact that a custodial sentence will have on him. In R. v. B.M., 2023 ONCA 224 at paras 14 to 16, the Ontario Court of Appeal considered section 718.01 of the Criminal Code and emphasized the Court's obligation to give "primary consideration" to deterrence and denunciation:
Section 718.01 of the Code requires that courts give "primary consideration to the objectives of denunciation and deterrence" when imposing sentence for cases involving the abuse of a person under the age of 18 years. In Friesen, at para. 105, the Supreme Court held that "Parliament's choice to prioritize denunciation and deterrence for sexual offences against children is a reasoned response to the wrongfulness of these offences and the serious harm they cause", given 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."
The court emphasized in Friesen that the expression "primary consideration" in s. 718.01 prescribes a relative ordering of sentencing objectives that is absent from the general list of six objectives in s. 718(a) through (f) of the Code: at para. 102. At para. 104, the court went on:
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. 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. [Emphasis added.]
The sentencing judge erred by failing to adhere to this clear sentencing principle. The reasons for sentence reveal an erroneous reordering of sentencing principles in a way that clearly conflicts with s. 718.01 of the Code and the Supreme Court's admonition that it does not fall to judges to reorder what Parliament has already ordered.
66Similarly, in R. v. Bertrand Marchand, 2023 SCC 26, the Supreme Court highlighted that Parliament has specifically limited judicial discretion for these offences:
Parliament has specifically indicated that in sentencing offences involving abuse of children, including child luring, the objectives of denunciation and deterrence must be given primary consideration or "une attention particulière" (Friesen, at para. 101; Criminal Code, s. 718.01). Section 718.01's open textured language limits judicial discretion by giving priority to these objectives, but their primary importance does not exclude consideration of other sentencing objectives, including rehabilitation (Rayo, at paras. 102-8). The judge can accord significant weight to other factors, but cannot give them precedence or equivalency.
67Judges must balance competing considerations to achieve a just sentence. Nevertheless, I must be cognizant of the statutorily prescribed weight that sits on one side of that scale. Giving too much weight to the mitigating considerations of the offender, including the absence of any criminal antecedents, could result in an unjust sentence and an error in principle.
68Despite the absence of any criminal record, this offence is so egregious that some form of a custodial term is essential to achieve the principles of sentencing. Even with serious offences, the sentences meted out for first offenders must be the shortest term of imprisonment, with consideration given to alternatives to incarceration, that achieves the predominant sentencing principles in all the circumstances.
viii. Whether a Conditional Sentence is an Available Sanction
69Incarceration in a facility is not the only means to achieve the sentencing goals of deterrence and denunciation. A conditional sentence is a punitive sanction that can send a strong message of condemnation to the public and the offender in certain circumstances. In R. v. Macintyre-Syrette, 2018 ONCA 706 at paras 16 and 19, the Ontario Court of Appeal emphasized that:
We are conscious of the Supreme Court of Canada's admonition in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at paras. 22 and 90, that we are to give "serious consideration" to a conditional sentence in these circumstances, and that a conditional sentence is generally more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of a responsibility in the offender. Further, a conditional sentence is itself a punitive sanction "capable of achieving the objectives of denunciation and deterrence": Proulx, at para. 22. A focus on denunciation and deterrence in sentencing does not necessarily foreclose a conditional sentencing order in the circumstances.
The scope of s. 718.2(e) restricts the adoption of alternatives to incarceration to those sanctions that are "reasonable in the circumstances": see Wells, at para. 39. In keeping with this principle, there are circumstances in which the need for denunciation and deterrence is such that incarceration is the only suitable way to express society's condemnation of the offender's conduct: Proulx, at paras. 106-107. As Doherty J.A. noted in R. v. Killam (1999), 126 O.A.C. 281, at para. 13"a conditional sentence...does not, generally speaking, have the same denunciatory effect as a period of imprisonment. Incarceration remains the most formidable denunciatory weapon in the sentencing arsenal." [emphasis mine]
70All available sanctions must be considered when determining what is reasonable in the unique circumstances of this offence and this offender. Counsel submitted that there is an effective, alternative sanction of serving a jail sentence in the community that may achieve the sentencing goals of denunciation and deterrence while reinforcing Mr. P.T.'s need and potential for rehabilitation.
71While a conditional sentence would be the least restrictive penalty in these circumstances, I must consider whether it is statutorily available and whether it would appropriately balance the competing sentencing considerations. Section 742.1 of the Criminal Code lists five criteria a judge must consider before imposing a conditional sentence:
The offender must not be convicted of an offence that is specifically excluded;
The offence must not be punishable by a minimum term of imprisonment;
The court must impose a sentence of imprisonment of less than two years;
The safety of the community must not be endangered by the offender serving his or her sentence in the community; and
A conditional sentence would be consistent with the fundamental purposes and principles of sentencing set out in sections 718 to 718.2.
72First, the offence is not specifically excluded from the imposition of a conditional sentence. Secondly, the statutorily prescribed minimum sentence of incarceration of 90 days has been found to be unconstitutional in a binding summary conviction appeal judgement: please see R. v. Drumonde, 2019 ONSC 1005 and R. v. B.J.T., 2019 ONCA 694 at para 78. Thirdly, since the crown proceeded summarily, the maximum available penalty is two year less a day. Moreover, both the crown and counsel agreed that the appropriate sentence is less than two years incarceration. The last two prerequisites to the imposition of a conditional sentence are more difficult to meet in this type of case.
73With respect to the fourth consideration, I have considered the lack of any record or any alleged breaches of Mr. P.T.'s bail conditions in the last two years. I am also satisfied that by implementing the recommendations outlined in the assessment report through court orders that limit access to children, it would ensure that the safety of the community is not endangered if he were to serve his sentence in the community. Any safety concerns could be addressed by terms that prohibit him from communicating with the victim or attending within a radius of where she is known to be as well as prohibiting him from occupying a position of trust or authority and prohibiting him from communicating with vulnerable girls.
74It is the fifth consideration about whether a conditional sentence would be consistent with the fundamental principles of sentencing, that is the most challenging issue to address in cases involving the sexual exploitation of children particularly by a trusted family member.
75The Supreme Court in Friesen, supra at para 106, declined to set out specific sentencing ranges for these crimes. Rather, this difficult issue was left to Provincial Appellate courts to decide:
We would decline the Crown's invitation to create a national starting point or sentencing range for sexual offences against children. Generally speaking, this Court is reluctant to pronounce on the specific length of sentence. The appropriate length and the setting of sentencing ranges or starting points are best left to provincial appellate courts.
76Despite this reluctance to set out ranges, the Supreme Court was unequivocal in R. v. Friesen, supra at para. 114 that sentences must increase to reflect that "our understanding of the profound physical and psychological harm that all victims of sexual assault experience has deepened". It was emphasized that:
Nonetheless, it is incumbent on us to provide an overall message that is clear (D. (D.), at paras. 34 and 45). That message is that mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward, and L.M. In addition, as this Court recognized in L.M., maximum sentences should not be reserved for the "abstract case of the worst crime committed in the worst circumstances" (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20). [emphasis mine]
77Following the Supreme Court's deferral to provincial appellate courts, the Ontario Court of Appeal has provided very clear directions to trial judges. Recently, in R. v. A.L. 2025 ONCA 9 at paras 19 to 21, the Court of Appeal reviewed and summarized various binding authorities that have considered whether a conditional sentence is contrary to or consistent with the principles of sentencing in these types of cases:
This court addressed the exceptionality of conditional sentences for sexual offences against children in R. v. M.M., 2022 ONCA 441. In M.M., at para. 16, this court noted that, given the Supreme Court's instructions in Friesen"[c]onditional sentences for sexual offences against children will only rarely be appropriate" and "[t]heir availability must be limited to exceptional circumstances that render incarceration inappropriate". As an illustration of an exceptional circumstance, this court gave the example of medical hardship that could not be adequately addressed within a correctional facility, expressly stating that exceptional circumstances were not limited to that example.
Chief Justice Tulloch made a similar point in R. v. Pike, 2024 ONCA 608, 440 C.C.C. (3d) 281, at para. 182, where he explained this court's use of the term "exceptional circumstances" in M.M. He stated that M.M. used "exceptional circumstances" as shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate. He also noted that this interpretation is consistent with the principle that "sentencing must focus on proportionality, not pigeonholing cases into ill-defined exceptional circumstance categories".
While exceptional, there is no rigid rule that conditional sentences can never be imposed in the appropriate case: see, for example, R. v. Faroughi, 2024 ONCA 178, 435 C.C.C. (3d) 1. Reflecting the individualized nature of sentencing, conditional sentences for sexual offences against children have been upheld in exceptional cases where the court is satisfied that the sentencing judge adverted to the relevant governing principles and there was no basis to interfere with the factual findings of exceptionality: see, for example: R. v. Singaqti, 2024 NUCA 10, at para. 15; R. v. T.J.H., 2023 YKCA 2, at para. 27; R. v. Germain, 2022 ABCA 257, at paras. 84, 85; R. v. R.B.B., 2024 NSCA 17, at paras. 41, 45. That is the case here. [emphasis mine]
78While a review of these recent Court of Appeal decisions demonstrates that conditional sentences are very unusual, that is not the same as directing trial judges that there is a presumption that a conditional sentence is contrary to the principles of sentencing in all child exploitation cases. In R. v. Pike, supra at para 180 - 182, the Court of Appeal specifically stated that:
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] 1 S.C.R. 61, [2000] S.C.J. No. 6, 2000 SCC 5, 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] B.C.J. No. 1951, 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), 171 O.R. (3d) 81, [2024] O.J. No. 1102, 2024 ONCA 178, 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. [emphasis mine]
79While parliament has directed that a court "shall" give primary consideration to the objectives of denunciation and deterrence, other principles of sentencing are still relevant. I am not precluded from ordering a conditional sentence. There is no closed list of factors that I need to find before making such an order. Furthermore, a culmination of different considerations can justify the imposition of a conditional sentence in cases that involve the sexual exploitation of a child. In the end, it is the principle of proportionality that will govern the outcome of this sentence for this offence and this offender.
80To arrive at a sentence that balances opposing considerations, it is helpful to review any sentencing precedents that have considered the appropriate sentence in cases with similar facts.
ix. The Principle of Parity
81In addition to the guiding sentencing principles, the principle of parity set out in subsection 718.2 of the Criminal Code requires that:
A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.
82While this is a worthy goal, each individual case is often so unique that it is difficult to achieve parity in sentencing. Ultimately, considering the unfortunately countless ways to commit a sexual assault, the distinctiveness of each offence and each offender, it is often challenging to find comparable cases. As Chief Justice Lamer stated in R. v. M. (C.A.), [1996] 1 S.C.R. 500 at paragraph 92:
...Sentencing is an inherently individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise of academic abstraction.
83Sexual offences range from minimally intrusive momentary occurrences to horrifying facts. Offenders can be responsible, sympathetic and apologetic or they can be recalcitrant, unrepentant recidivists. The Ontario Court of Appeal observed in R. v. E.C., 2019 ONCA 688 that:
The offence of sexual interference can be committed in any number of ways, and with varying levels of moral turpitude. The broad range of available sentences is rooted in the "infinitely variable ways in which the offence can be committed": R. v. M.B., 2013 ONCA 493, at para. 21. Within the wide range of available sentences, the court must impose an appropriate sentence - one that is proportionate to the gravity of the offence and the degree of responsibility of the offender, and, respecting the principle of parity, is proportionate to sentences imposed for similar offences committed in similar circumstances: R. v. Lacasse, 2015 SCC 64, [2015] 3 S.C.R. 1089, at para. 53.
84Similarly, in R. v. R.S., 2023 ONCA 608 at para 27, the Court of Appeal reinforced the difficulty with achieving parity when sentencing sex offenders:
The difficulty in sentencing for sexual assault stems from the broad scope of the offence. Sexual assault is defined in terms of sexual touching without consent, a wide spectrum of conduct that ranges from touching to forced intercourse. It may be that, in some circumstances, a conditional sentence is appropriate for sexual assault at the lowest end of the range of wrongful conduct. But there is no basis to suppose that it is appropriate for sexual assault at the higher end of that range. [emphasis mine]
85The crown provided the decision of R. v. A.L., 2024 ONCJ 330. Not surprisingly, the case is factually distinguishable, so the sentence reflected that unique factual matrix. Before arriving at the conclusion, Justice Richardson engaged in a thorough review of a multitude of decisions some of which had similar facts of a single event involving nonpenetrative acts of sexual violence by a person in a position of trust or authority:
Para 88: In R. v. T.J. 2021 ONCA 392, the Ontario Court of Appeal dealt with the sentencing of an offender who was found guilty after a trial of one instance of sexual assault when the victim was six or seven years old. The sexual assault involved the offender directing the victim to the bathroom and taking her hands and telling her to rub his penis. The offender then invited the victim to perform fellatio. At this point, the victim pulled away and left the room. The offender had no prior record, had employment, had a history of substance use for which he had gone to counselling. Because the child was a guest in the offender's home for a sleep over with the offender's children, the offender was in a position of trust. The offender did not express remorse. The trial judge imposed a sentence of nine months and two years probation.
The Crown appealed. At paragraph 33, the Court of Appeal, led by Justice Zarnett, found that the trial judge's sentence was "not consonant with Friesen's message" of priority to denunciation and deterrence and found that the appropriate sentence was two years in the penitentiary followed by two years of probation.
Para 95: In R. v. I.C. 2024 ONSC 1406, Justice Spies sentenced an accused after trial before a judge and jury to ten months in custody. The victim was his stepdaughter. There was one incident where he pulled her on top of him while lying on the bed and began to move up down while playing "horsey". He held her by the arms and refused to stop when she asked him to. She felt an erection as they bounced on the bed. The incident did not last longer than a minute or two. There was no attempt to remove her clothing. [This was a sentence imposed after trial.]
Para 96: In R. v. M.J. 2024 ONSC 1027, Justice Hilliard was sitting on appeal in a case where the trial judge convicted the accused after a trial of one instance of entering his eleven-year-old step-daughter's room, when he was intoxicated and placed his hand on her vagina over her clothing and moved it in a circular direction. The trial judge imposed a sentence of fifteen months custody. The accused was a first-time offender. Justice Hilliard concluded the sentence imposed was not demonstrably unfit.
Para 109: In R. v. Lloyd (2021) OJ 5163 (O.C.J.), Justice Wheeler found the offender guilty after a trial of touching the victim over the clothes in a trailer on a camping trip. The offender was 53, had been sexually abused as a youth and until the charges impacted his security clearance, had a successful consulting business. The victim considered the offender as a father figure. It affected her relationship with her mother who she initially blamed for the offence. The victim went from being a good student to a person with significant behaviour issues. Justice Wheeler found that the appropriate sentence with 15 months in prison followed by two years probation.
86I also found the extensive review of related sentencing ranges in another one of Justice Richardson's decisions to be instructive: please see R. v. S.L., 2025 ONCJ 105.
87In each of these decisions, other than R. v. S.L., supra, a carceral sentence was imposed by the trial judge because a conditional sentence was not considered to be consistent with the guiding principles of sentencing. However, none of these cases, other than R. v. S.L., had the mitigating consideration of a plea of guilty or unequivocal acceptance of responsibility for the offences. In contrast, Mr. P.T. publicly acknowledged the harm that he caused to the victim, and he admitted that he engaged in predatory sexual misconduct towards a victim who trusted him. He did not try to downplay his intentions when he touched and kissed Ms. N.S. In these unique circumstances, this acceptance of responsibility provides the victim with a sense of validation that a finding of guilt after a trial could not accomplish.
88Most of the decisions relied on by the crown had substantially more aggravating factors like grooming leading up to the offence which demonstrated planning and deliberation and/or repetitive and/or more invasive sexual violence involving direct contact with the victims' genitalia and/or more than one victim. There is no evidence of any kind of grooming of Ms. N.S. Quite the contrary, before the offence, they shared a positive and constructive relationship. They bonded in a supportive manner over their shared grief until Mr. P.T. spontaneously and impulsively made a sexual advance on his teenage stepdaughter.
89I have instructed myself that the absence of additional aggravating factors cannot and must not be considered as mitigating facts. Any sexual violation of a child by a person in a position of trust and authority is psychologically damaging, emotionally devastating and has debilitating long term effects on the victims. Ms. N.S.'s impact statement captures the harm she has suffered and continues to suffer because of Mr. P.T.'s violation of her sexual integrity.
90The Ontario Court of Appeal and Supreme Court of Canada has been clear that sentence of incarceration must be the norm. In R. v. Macintyre-Syrette, 2018 ONCA 706 at 21, the Court of Appeal observed that "this offence requires denunciation, as an affirmation of the dignity of the complainant, and no appropriate sentencing proposal or sanction, short of a custodial disposition, appears to be available". I am cognizant of the important role a sentence plays in affirming the dignity of the victims of sexual violence.
91There are no individual facts or considerations that would make this case exceptional. There are, however, a culmination of factors that have influenced my decision that this is a rare case that justifies the imposition of an unusual sentence.
92First, this was an apparently spontaneous and momentary occurrence amidst Mr. P.T.'s spiralling mental health issues that negatively impacted his judgement and briefly unmasked a predatory predilection. Of course, as noted throughout these reasons, grief and depression do not explain Mr. P.T.'s attraction to a child which is something that he needs extensive treatment to address.
93Secondly, this was an isolated occurrence. Mr. P.T. has no criminal antecedents and there was no suggestion of any kind of grooming behaviour. Mr. P.T. stopped immediately when requested by Ms. N.S. There were no other incidents of sexually inappropriate misconduct towards her either before or after this offence. He admitted responsibility when confronted by his wife a few months later. He left their home after the offence was disclosed by Ms. N.S. Mr. P.T. invested in treatment and counseling for his depression and grief. Once he was more stable, his counsel was able to get instructions to agree to a statement of facts and he entered a plea of guilty.
94Thirdly, Mr. P.T. has complied with his bail terms, participated fully in the preparation of the PSR and engaged in an assessment. He has demonstrated that he is willing and capable of abiding by court orders and following through with directions. He is making some progress in terms of insight since he recently disclosed that he was the victim of childhood sexual abuse, and he is willing to address his past abuse.
95While he has been reluctant to invest in offence specific counseling and there has been some "stagnation" as well as some unwarranted self-satisfaction with his progress, a conditional sentence will ensure that he has little choice but to attend and actively participate in therapy for sexual offences. Extensive counseling will be a term of the conditional sentence order. I wish to be emphatically clear that, if Mr. P.T. does not follow the directions of a conditional sentence supervisor and fully engage in all the counselling that I order, I will consider it a serious breach of the court orders. Mr. P.T. will face the possibility of serving the balance of his sentence in custody.
96Fourthly, Mr. P.T. was employed and paying support until March of this year when he attempted suicide. Now that he is more psychologically stable, he can seek and maintain gainful employment to the satisfaction of the conditional sentence supervisor. A unique term of the conditional sentence will require him to pay support as per the family court guidelines as soon as he obtains employment: please see section 742.3(c) of the Criminal Code. This term is intended to alleviate some of the financial repercussions of this offence. The victim, her sister and her mother should not continue to suffer from lost opportunities and necessities because of Mr. P.T.'s choices.
97Finally, a sentence must be viewed holistically. A conditional sentence will not stand alone. It will be followed by a period of probation of 3 years which will ensure Ms. N.S.'s protection and peace of mind for the next 5 years. I have also considered the punitive impact of the additional orders sought by the crown. The cumulative impact of the maximum term for a conditional sentence, the maximum term of probation, a lengthy 161 order to protect other children and a S.O.I.R.A. order will send a strong message of denunciation for this offence and address both specific and general deterrence.
98While factually distinguishable, in many drinking and driving cases, courts have increased the length of a driving prohibition while shortening the period of incarceration to achieve proportionality. In R. v. Frickey, 2017 ONCA 1024 at para 10, the Court of Appeal observed that:
In considering whether the sentence is manifestly unfit, the sentence must be considered as a whole. While the driving prohibition may have been longer than in the precedents provided by the parties, the custodial sentence was shorter. In reducing the custodial sentence and lengthening the driving prohibition, the trial judge exercised the principle of restraint and took into consideration "all available sanctions, other than imprisonment, that are reasonable in the circumstances", in accordance with s. 718.2(e) of the Criminal Code. The longer driving prohibition was necessary for the protection of the public. We see no error in the trial judge's decision.
99I appreciate that nothing short of seeing Mr. P.T. incarcerated for this offence will seem satisfactory or fair to Ms. N.S. That is completely understandable since she feels imprisoned by the memories of this betrayal and her ongoing suffering. This sentence does not devalue her pain or the seriousness of this offence. She is a remarkable young woman. Because of her strength and bravery, Mr. P.T. is being held fully accountable. He has been branded as a sex offender. He will have a constant reminder of his crime for the next decade. He will be subject to lengthy court orders to ensure that no other child suffers in the same manner as Ms. N.S.
100It is the cumulative impact of each of the court orders that will send an unwavering message to Mr. P.T., to the public and to likeminded offenders that a heavy price will be paid by anyone who sexually assaults a vulnerable young victim. Sentences must unequivocally communicate that these offences will not be tolerated or condoned by our courts. As the Supreme Court stated in Friesen, supra, at para 45:
The criminal law in general and sentencing law specifically are important mechanisms that Parliament has chosen to employ to protect children from sexual violence, to hold perpetrators accountable, and to communicate the wrongfulness of sexual violence against children. It is our duty to give Parliament's sentencing initiatives their full effect.
101Incarceration is not the only means to achieve a punitive sanction in every case of child sexual assaults. It is essential to consider the total sentence when considering whether a conditional sentence is a proportionate disposition. In R. v. Bissonette, 2022 SCC 23 at paras 49 to 51, the Supreme Court of Canada explained that:
The relative importance of each of the sentencing objectives varies with the nature of the crime and the characteristics of the offender. There is no mathematical formula for determining what constitutes a just and appropriate sentence. That is why this Court has described sentencing as a "delicate art which attempts to balance carefully the societal goals of sentencing against the moral blameworthiness of the offender and the circumstances of the offence, while at all times taking into account the needs and current conditions of and in the community".
But sentencing must in all circumstances be guided by the cardinal principle of proportionality. The sentence must be severe enough to denounce the offence but must not exceed "what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence". Proportionality in sentencing is considered to be an essential factor in maintaining public confidence in the fairness and rationality of the criminal justice system. The application of this principle assures the public that the offender deserves the punishment received.
It follows that "a person cannot be made to suffer a grossly disproportionate punishment simply to send a message to discourage others from offending". In a similar vein, Vauclair J.A. aptly stated that "striving for exemplarity to the detriment of evidence of the merit of rehabilitation objectives is incompatible with the principle of individualization". Proportionality has a restraining function, and in this sense serves to guarantee that a sentence is individualized, just and appropriate. [citations omitted]
102I cannot focus solely on the outcomes in other cases to guide my decision. I must consider the individual circumstances unique to this offender and this offence to balance parity and individualization to achieve a proportionate sentence: please see R. v. Lacasse, supra at para 53.
103In these unique circumstances, a conditional sentence will reflect the primary considerations of denunciation deterrence while also being consistent with the principle of restraint and the guiding principles of sentencing. As the Court of Appeal observed in R. v. Faroughi, 2024 ONCA 178 at para 73:
Nevertheless, conditional sentences can be appropriate in circumstances where denunciation and deterrence are the predominant sentencing objectives, as such a sentence with punitive conditions can provide a significant amount of denunciation and deterrence. And the restraint principle continues to be applicable in circumstances where, like in this case, the primary sentencing principles are denunciation and deterrence. This court has recognized that, in some exceptional circumstances, a conditional sentence may be fit for an offender convicted of sexual offences against children. [citations omitted]
104After reviewing various authorities, I determined that a period of incarceration in the range of 10 to 15 months could have been justifiable. By imposing a lengthier conditional sentence of 2 years less a day with punitive terms to be followed by 3 years of probation as well as a 161 order and the S.O.I.R.A. order, all the orders combined will result in a just and proportionate disposition. The total sentence will not exceed this offender's overall culpability in these circumstances.
x. The 161 Order
105In the written submissions, the crown requested a 10-year section 161 order with terms restricting Mr. P.T.'s movements, access to children and preventing him from communicating with children or occupying positions of trust or authority towards them. Counsel urged me to impose a 3-year order with fewer conditions.
106A section 161 order is a discretionary and punitive sanction that requires a measured approach. The liberty interests of the offender may be restricted for a substantial period. The Ontario Court of Appeal provided the following guidance in R. v. Schulz, 2018 ONCA 598 about when and how a court should exercise this discretion:
The overarching protective function of s. 161 of the Criminal Code is to shield children from sexual violence: R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 44. An order under s. 161 constitutes punishment and is not available as a matter of course: there must be an evidentiary basis upon which to conclude that the particular offender poses a risk to children; the specific terms of the order must constitute a reasonable attempt to minimize the risk; and, the content of the order must respond carefully to an offender's specific circumstances: K.R.J., at paras. 48-49. [emphasis mine]
107Similarly, in R. v. Brar, 2016 ONCA 724, the Ontario Court of Appeal carefully reviewed the Supreme Court of Canada's decision on section 161 orders in R. v. K.R.J., supra and explained at paras 17 and 18 that:
The Supreme Court emphasized that these orders are discretionary and flexible, as s. 161 "was designed to empower courts to craft tailored orders to address the nature and degree of risk that a sexual offender poses to children once released into the community" (at para. 47). Because these orders can have a significant impact on the liberty and security of offenders and can attract a considerable degree of stigma, they will be justified where the court is satisfied that the specific terms of the order are a reasonable attempt to minimize the risk the offender poses to children (J. (K.R.), at paras. 48, 54). The terms of such orders must, therefore"carefully respond to an offender's specific circumstances" (at para. 48). [emphasis mine]
108Mr. P.T. lacks insight into the sexual deviance of this offence and he made excuses for interfering with the sexual integrity of a child. There are no excuses or justifications for what he did to Ms. N.S. Until he gains more understanding of the true motivation for this offence and honestly engages in offence specific counseling, he cannot be trusted around vulnerable members of our community for a substantial period. I have also considered the recommendation in the psychological assessment that was provided by the defence.
109To prevent future harm, it is essential that he is not in a position of trust or authority over any children and refrains from communicating with them, with a few exceptions, to avoid opportunities to commit similar offences. Nevertheless, the crown's proposed restrictions on his liberty from attending public parks or the listed places are unnecessarily punitive and may interfere with attending these places while travelling to and from and while in the presence of his biological daughter. Instead, I have considered additional terms that prohibit him from accessing or viewing sexualized images of vulnerable children on the internet or communicating with them online to avoid exposure to situations that could encourage his untreated attraction to children.
110A period of 10 years of preventative measures to protect children without the additional restrictions on his liberty interests to be able to attend the areas requested by the crown reflects a measured approach. It is a substantial period of control in the community with terms that are unique to the circumstances of this offence and this offender. Mr. P.T. is ordered to abide by a 161 order for a period of 10 years during which he is prohibited from:
(a.1) being within 250 meters of any dwelling-house where Ms. N.S. ordinarily resides or where she is known to attend school or be employed:
- Except pursuant to a family court order made after today's date, while outside of the family home, for the purpose of travelling directly to, directly from and while picking up your biological daughter
(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.
(c) having any contact — including communicating by any means — with a person who is under the age of 16 years except:
While in the direct and continuous company of an adult over the age of 21 who is aware of the nature of your criminal conviction; or
For brief incidental contact while in public places during commercial transactions; or
For any biological children pursuant to a family court order.
(d) using the Internet or other digital network for the purposes of:
engaging in any communications with children under the age of 16 years old or who are purported to be under the age of 16 years old, other than your biological children; or
directly or indirectly accessing any social media sites, social network, Internet discussion forum or chat room, or maintain a personal profile on any such service for the purposes of communicating with any person known to be or purported to be under the age of 16 years old, other than your biological children; or
participating in chat groups with members who are primarily under the age of 16 years old; or
accessing, viewing, sharing, possessing, purchasing or distributing sexualized images of children under the age of 18 years old.
xi. SOIRA Order
111In addition to the 161 order, the crown requested a S.O.I.R.A order. Counsel submitted that this order should not be made because there is no connection between the making of the order and the purposes of these provisions of the Criminal Code.
112Regardless of whether I impose this order, Mr. P.T. will be subject to Christopher's Law (Sexual Offence Registry) as a convicted sexual offender who resides in Ontario. Every resident of this province who has been convicted of a designated offence must present themselves and report to a designated place within a specified period. The preamble to the Act explains that:
The people of Ontario believe that there is a need to ensure the safety and security of all persons in Ontario and that police services require access to information about the whereabouts of sex offenders in order to assist them in the important work of maintaining community safety. The people of Ontario further believe that a registry of sex offenders will provide the information and investigative tools that their police services require in order to prevent and solve crimes of a sexual nature.
113In addition to this provincial legislation, the Criminal Code provides for similar registration of designated sex offenders. The law recently changed with respect to the preconditions for the imposition of S.O.I.R.A. orders.
114Mr. P.T. has been convicted of a designated offence, the crown elected by summary conviction and the victim was under the age of 18 years old. As a result, subsections 490.012(3) and (4) of the Criminal Code apply:
490.12 (3)
Order — other circumstances
(3) Subject to subsection (5), when a court imposes a sentence on a person for a designated offence in circumstances in which neither subsection (1) nor (2) applies, or when the court renders a verdict of not criminally responsible on account of mental disorder for a designated offence, it shall make an order in Form 52 requiring the person to comply with the Sex Offender Information Registration Act unless the court is satisfied the person has established that
(a) there would be no connection between making the order and the purpose of helping police services prevent or investigate crimes of a sexual nature by requiring the registration of information relating to sex offenders under that Act; or
(b) the impact of the order on the person, including on their privacy or liberty, would be grossly disproportionate to the public interest in protecting society through the effective prevention or investigation of crimes of a sexual nature, to be achieved by the registration of information relating to sex offenders under that Act.
Factors
(4) In determining whether to make an order under subsection (3) in respect of a person, the court shall consider
(a) the nature and seriousness of the designated offence;
(b) the victim's age and other personal characteristics;
(c) the nature and circumstances of the relationship between the person and the victim;
(d) the personal characteristics and circumstances of the person;
(e) the person's criminal history, including the age at which they previously committed any offence and the length of time for which they have been at liberty without committing an offence;
(f) the opinions of experts who have examined the person; and
(g) any other factors that the court considers relevant.
115Counsel urged me to consider the absence of any criminal antecedents or any further offences since Mr. P.T. was arrested. He was assessed as a "low risk" to reoffend. The offence was an isolated incident with no evidence of grooming, and it is at the lower end of the spectrum of seriousness. Counsel also emphasized Mr. P.T.'s investment in counseling and his strong familial support.
116For the reasons provided throughout, I am concerned about Mr. P.T.'s lack of insight into his sexual attraction to his stepdaughter or any investment in counselling for this specific issue. While he was assessed as a low risk to reoffend, he was not being honest during the assessment of that risk. The doctor who prepared the report opined that he should be prohibited from interacting with children under the age of 16 years and expressed concerns about whether he will continue with any treatment. Mr. P.T. has his own unresolved history of sexual violence to address on his road to rehabilitation.
117Mr. P.T.'s family cannot possibly provide him with any meaningful support in terms of preventing similar harm in the future since they are unaware of the nature of the offence or the need to protect vulnerable children from him. Finally, the victim of this offence was a child with whom he shared a relationship of trust and authority. She has been devastated by this egregious breach of trust.
118The Ontario Court of Appeal recently explained in R. v. Eldon, 2025 ONCA 348 that:
15 Section 490.012(3) of the Criminal Code creates a presumption in favour of making a SOIRA order upon sentencing for a primary designated offence, or where a verdict of not criminally responsible on account of mental disorder is rendered for a primary designated offence. The presumption in favour of making a SOIRA order can only be displaced in statutorily defined circumstances.
16 Therefore, the court "shall" make a SOIRA order "unless" the offender establishes that the criteria in (a) or (b) are met. In making that determination, the court must have regard to the factors set out in s. 490.012(4). Among others, these include"the nature and seriousness of the designated offence""the victim's age and other personal characteristics" and "the nature and circumstances of the relationship between the person and the victim".
And further:
44 Under each of these exceptions, the threshold is high - there must either be "no connection" between making the order and the purposes of SOIRA, or the impact of the order would not just be disproportionate but "grossly disproportionate" to the purposes of SOIRA. Section 490.012(3) of the Criminal Code recognizes that the framework has a dual purpose - the "prevention" of crimes of a sexual nature and the "investigation" of such crimes. As the majority recognized in Ndhlovu, at para. 120, these are "laudable" goals.
52 First, it is critical to begin the analysis under s. 490.012(3) with the statutory presumption front and centre, recognizing that an order shall be imposed unless it can be established that the criteria under (a) or (b) are met. This presumption accords with what was recognized in Ndhlovu, that sexual offending is one of several "empirically validated predictors of increased sexual recidivism": Ndhlovu, at para. 94. It also accords with the recognition that the prevention and investigation of sexual offending, through the assistance of the NSOR, is in the public interest: Criminal Code, s. 490.012(3)(b); SOIRA, ss. 2(1), 2(2).
119As a person who has not invested in appropriate counseling to prevent the commission of similar offences in the future and considering the nature and circumstances of this offender and the consequences of this offence, there is a clear and obvious connection between the goals of the S.O.I.R.A. regime for the prevention, detection and investigation of sexual offences and the requirement for Mr. P.T.'s participation. The impact of this order on Mr. P.T.'s liberty and privacy interest is not grossly disproportionate to the public interest in protecting society's most vulnerable members. Since the crown elected to proceed by summary conviction, pursuant to subsection 490.013(2)(a) the order shall be for a duration of 10 years.
C. Conclusion
120It is hard to reconcile Mr. P.T.'s strongest attributes with the nature of this offence. I appreciate that he has expressed remorse and admitted his responsibility for his crime. Through his plea of guilty, he provided Ms. N.S. with some closure and a public validation of the detrimental impact his crime has had on her young life. True remorse, however, is not merely confined to expressions of regret for a person's actions. It must include honest insight into why he committed this sexual offence on a trusting child, related rehabilitative efforts to make amends and accepting full accountability without hiding it from the people who purportedly support him.
121If Mr. P.T. continues to divest himself of full responsibility by blaming his profound grief for his actions, he is avoiding holding himself fully accountable and truly making amends. This sentence is a rare opportunity for him to serve his custodial sentence in the community but only if he complies with all the terms and conditions including punitive terms like house arrest for the first year of the order and GPS monitoring to ensure compliance. He will be required to invest in offence specific counseling on an individual basis as recommended by the clinical psychologist. He will also be required to immediately seek and maintain employment to the satisfaction of his conditional sentence supervisor to ensure that he resumes paying child support as soon as possible.
122The length of the conditional sentence will be two years which exceeds the carceral sentence that I would have otherwise imposed to reinforce the primary considerations of denunciation and deterrence. It will be followed by a period of 3 years of probation. The terms of each of these orders are attached as schedule A and B.
123In addition, there will be a 161 order for a period of 10 years and a S.O.I.R.A. order for a period of 10 years. He will be required to provide a sample of his D.N.A. There will be a discretionary firearms prohibition order pursuant to section 110(1)(a) for a period of 10 years. The victim fine surcharge will be waived as an undue hardship in all the circumstances.
Appendix A
Terms of the 2-Year Less Day Conditional Sentence Order
Statutory Terms:
Keep the peace and be of good behaviour;
Appear before the court when required to do so;
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.
Reporting:
Report in person to a conditional sentence supervisor:
• Within 24 hours and thereafter at all times and places as directed by the conditional sentence supervisor or any person authorized by a conditional sentence supervisor to assist in your supervision.
• You must cooperate with your conditional sentence supervisor. You must sign any releases necessary to permit the conditional sentence supervisor to monitor your compliance and you must provide proof of compliance with any condition of this Order to your conditional sentence supervisor upon request.
Residence:
- You must live at a place approved of by your conditional sentence supervisor and not change that address without obtaining the prior approval of the conditional sentence supervisor.
Travel Restrictions:
- Remain in the province of Ontario unless you have the prior written permission of your conditional sentence supervisor.
Employment:
You must make reasonable efforts to seek and maintain suitable work to the satisfaction of the conditional sentence supervisor and provide proof of same as required by the conditional sentence supervisor.
Within one month of securing employment, you must pay child support as required by or in excess of the Family Court guidelines.
House Arrest:
For the first 12 months of your conditional sentence order, you will remain in your residence or on the property of your residence at all times except:
• Once per week on a day to be chosen by you in consultation with your supervisor for a period of four hours in order to acquire the necessities of life.
• For any medical emergency involving you or any member of your immediate family (spouse, child, parent, grandparent or sibling) if written justification is provided to your conditional sentence supervisor within 72 hours of any such absence during curfew hours.
• For the following exceptions, you must provide notice to your conditional sentence supervisor, at least 12 hours in advance of any such activity providing the anticipated times of your absence, the purpose of your absence and the addresses that you will be attending:
• Between the hours of 8 a.m. to 6 p.m. while travelling directly to, directly from and while attending at pre-scheduled legal, medical or dental appointments.
• While travelling directly to, directly from and while attending at any prescheduled assessments, counselling sessions or treatment programs.
• While travelling directly to, directly from and during the course of prescheduled job interviews or your employment.
• Between the hours of 8 a.m. to 8 p.m. while travelling directly to, directly from and while attending at access visits with your biological daughter pursuant to a family court order.
• With the prior dated written approval of your conditional sentence supervisor to be carried with you at all times while outside of your residence during your house arrest; and
• For carrying out any legal obligations regarding compliance with this conditional sentence order.
• You must confirm the schedule and addresses for any of these exceptions to your period of home confinement by telephone or in person in advance with the conditional sentence supervisor setting out the times and places for these activities.
• You must present yourself at your doorway of your residence upon the request of your conditional sentence supervisor or his/her designate or a peace officer for the purpose of verifying your compliance with your home confinement and curfew conditions.
• While serving the house arrest portion of this conditional sentence, within three business days, you must comply with 24-hour a day GPS monitoring by the government-funded GPS monitoring program in accordance with the Rules and Protocols attached in Schedule "A".
For the last 12 months of your conditional sentence order, you will remain in your residence or on the property of your residence at all times between the hours of 10 p.m. to 6 a.m. except:
• For any medical emergency involving you or any member of your immediate family (spouse, child, parent, grandparent or sibling) if written justification is provided to your conditional sentence supervisor within 72 hours of any such absence during curfew hours.
• For the following exceptions, you must provide notice, in writing, to your conditional sentence supervisor, at least 12 hours in advance of any such activity providing the anticipated times of your absence, the purpose of your absence and the addresses that you will be attending:
• While travelling directly to, directly from and during the course of your employment.
• With the prior dated written approval of your conditional sentence supervisor to be carried with you at all times while outside of your residence during your curfew hours; and
• For carrying out any legal obligations regarding compliance with this conditional sentence order.
Counselling and Treatment:
Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your conditional sentence supervisor and complete them to the satisfaction of your conditional sentence supervisor including but not limited to:
• Grief;
• Psychological or psychiatric issues;
• Individual counseling for childhood trauma;
• Individual counseling for sexually inappropriate conduct with children; and
• Individual counseling for understanding sexual boundaries and consent in relationships.
You shall sign any release of information forms as will enable your conditional sentence supervisor to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.
Weapons:
- Do not possess any weapons as defined by the Criminal Code.
Communication:
Do not contact or communicate in any way, directly or indirectly, by any physical or electronic or other means with Ms. N.S.
Do not be within 250 meters of any place where you know Ms. N.S. to live, work, go to school or any place that you know the person to be
EXCEPT
While attending at required court appearances; or
Except pursuant to a family court order, while outside of the family home, for the purpose of travelling directly to, directly from and while picking up your biological daughter
ADDITIONAL TERM TO NON-CONTACT TERMS
- You are not to post any information about, depictions of, recordings of or photographs of Ms. N.S. on any social media site.
Appendix B
Terms of the Three Years of Probation
STATUTORY TERMS:
Keep the peace and be of good behavior.
Appear before the court when required to do so.
Notify the court or probation officer in advance of any change of name or address and promptly notify the court or probation officer of any change in employment or occupation.
REPORTING:
Report in person to a probation officer:
• Within 7 working days of the completion of your conditional sentence;
• and thereafter at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in your supervision.
• Your reporting requirements will end when you have satisfied your probation officer that you have:
• Completed all your counselling.
• you must cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this Order to your probation officer upon request
NO CONTACT TERMS:
Do not contact or communicate in any way, directly or indirectly, by any physical or electronic or other means with Ms. N.S.
Do not be within 250 meters of any place where you know Ms. N.S. to live, work, go to school or any place that you know the person to be
EXCEPT
While attending at required court appearances; or
Except pursuant to a family court order, while outside of the family home, for the purpose of travelling directly to, directly from and while picking up your biological daughter
ADDITIONAL TERM TO NON-CONTACT TERMS:
- You are not to post any information about, depictions of, recordings of or photographs of Ms. N.S. on any social media site.
COUNSELLING AND TREATMENT:
Attend and actively participate in all assessments, counselling or rehabilitative programs as directed by your probation officer and complete them to the satisfaction of your probation officer including but not limited to:
• Grief;
• Psychological or psychiatric issues;
• Individual counseling for childhood trauma;
• Individual counseling for sexually inappropriate conduct with children; and
• Individual counseling for understanding sexual boundaries and consent in relationships.
You shall 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.
WEAPONS:
- Do not possess any weapons as defined by the Criminal Code.
Footnote
1Please also see R. v. Jahfari, 2024 ONCJ 29 in which the parties and the Court agreed that the decision of the Superior Court of Justice sitting as a summary conviction appeal in R. v. Drumonde is binding on the Ontario Court of Justice.