WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
R. v. M.R., 2025 ONCJ 672
O N T A R I O C O U R T OF J U S T I C E
B E T W E E N:
HIS MAJESTY THE KING
-AND-
M.R.
Before Justice M. G. March
Submissions heard on October 24, 2025
Reasons for Sentence released on December 16, 2025
Teresa James.………………...…………….……………………………….Crown Counsel
Marni Munsterman…………………………………………………...….Counsel for M.R.
March, M.G., J. :
Introduction:
On May 16, 2025, I found M.R. guilty following a ten-day trial of the offence of touching for a sexual purpose N.B., a person under the age of 16 years, directly with a part of his body, to wit, his finger, on or about October 25, 2020 contrary to section 151 of the Criminal Code of Canada (“the Code”). I acquitted him on a charge of administering on the same date an overpowering drug to N.B. with intent to enable or assist himself to commit an indictable offence contrary to s. 246(b) of the Code.
M.R. also pleaded guilty at the outset of his trial on June 6, 2022 to the offence of distributing cannabis on or about October 24, 2020 to minors, N.B. and A.R., contrary to section 9(1)(a)(ii) of the Cannabis Act. He was content to await sentencing for this offence until the conclusion of his trial on his charges under the Code.
N.B. is M.R.’s stepdaughter. A.R. is M.R.’s biological daughter. Both girls were 14 years old and living with M.R. at the time he committed the offences, while he was still a serving member of the Canadian Armed Forces (“CAF”) stationed at Garrison Petawawa.
Circumstances of the Offences:
The underlying facts of this case are set out in detail at R. v. M.R., 2025 ONCJ 274.
In short, I found regarding the sexual touching offence that:
a) late in the evening of October 25, 2020, N.B., A.R. and M.R. were watching movies while sitting on the couch in the living room of his private married quarters (“PMQ”),
b) A.R. went to bed,
c) N.B. and M.R. stayed up,
d) N.B. was sitting on M.R.’s stomach, as was her habit since she was a child,
e) M.R. tried to slide N.B. toward his crotch area,
f) N.B. resisted his attempt to do so,
g) M.R. reached under her thigh and tried to loosen the drawstring of her shorts unsuccessfully,
h) M.R. then slid his hand into the leg of N.B.’s shorts and fondled her vagina with his hand over top of her underwear,
i) next M.R. slid one or two of his fingers underneath her underwear and digitally penetrated N.B.’s vagina,
j) as M.R. was sexually touching N.B., he was occasionally asking her if she was okay with it, to which N.B. repeatedly responded she did not know,
k) N.B. was either under the influence of marijuana at the time or in shock at what was happening, such that she felt numb in her vaginal area,
l) N.B. was at a loss to know how to respond or to seek assistance for herself,
m) N.B. was texting her ex-boyfriend Z., his friend I., and others at or about the time the sexual touching was taking place,
n) M.R. pulled her down to lay next to him and took her phone away from her momentarily,
o) N.B. pleaded for its return; M.R. eventually relented,
p) M.R. then asked her if she wished to play video games or watch a movie,
q) N.B., in response, told him she wanted to go to bed, and did so,
r) M.R. checked on N.B. while she was in bed asking for her assistance to log out of an app he had left open on his phone,
s) N.B. obliged,
t) N.B. resolved that night to report the incident at school the next day and did so,
u) N.B. provided a statement to police about what had occurred and attended at the Pembroke Regional Hospital for a Sexual Assault Examination Kit,
v) N.B. handed over the underwear she was wearing the previous night and submitted to a vaginal swab sought by Ms. Valiquette, a Sexual Assault Nurse Examiner,
w) a cut out of the crotch area of N.B.’s underwear and the vaginal swab taken from her, after forensic analysis done by the Centre of Forensic Sciences (“CFS”), revealed M.R.’s DNA profile in both,
x) no scientific method existed for determining the exact type of bodily fluid or substance transferring from M.R. to leave a DNA deposit by him on N.B.’s clothing or in her vagina,
y) the CFS expert calculated the probability that someone other than M.R. could have deposited the DNA found on N.B.’s underwear was one in one trillion, and
z) the CFS expert calculated the probability that someone other than M.R., or a member of his patrilineage, could have deposited the DNA in her vagina was one in two thousand.
- Regarding the distribution of marijuana to minors, M.R. admitted to an occasion where he gave “gummies” to N.B. and A.R. when they were 14 years of age on or about October 24, 2020.
Circumstances of the Offender:
M.R. is a single, 42-year-old man, who, until now, had no criminal record. He is presently unemployed after he was, as he put it, “kicked out of the military for refusing a direct order to get the Covid 19 vaccine”.
Prior thereto, he enjoyed a career in the CAF for some 14 years. He achieved the highest rank of corporal. He was a member of the “combat arms artillery”. During his tenure, he participated in a nine-month tour of duty in Afghanistan as a “gun driver”.
Following his time overseas, he stated he was “hard on the booze for three or four years”. He experienced blackouts, but he did not have large memory gaps. Now he drinks rarely, maybe once a year.
Regarding other illegal drug use, M.R. has tried “mushrooms, weed, acid, MDMA and cocaine”. This period of experimentation occurred during his college years, and when he first joined the military. The last time he used any such drugs was 20 years ago.
In respect of marijuana consumption, he says that he uses it when he feels anxious. He will then take a puff of weed. He still uses it once to twice weekly, but “it is definitely less than before”.
According to a Sexual Behaviours Report (“the Report”) prepared under authority of section 21 of the Mental Health Act by Dr. Sanjiv Gulati, a forensic psychiatrist with the Royal Ottawa Hospital (“ROH”), M.R. now lives in the countryside outside the Greater Toronto Area. He sleeps in the woods, but has access to an empty cabin when the weather is cold.
He described his decision to pursue this lifestyle because it may be “a rebellious thing”. His dismissal from the CAF “kind of jaded [him] with people, the government, and organizations”.
His ideal situation at the moment is having a cabin with his chickens. He has eight of them. In exchange for permission to stay where he does, he maintains the gardens on the property and its lawns, so they do not become overgrown. He lamented that it was difficult for him to keep his appointments with Dr. Gulati to have the Report prepared because he needed to find someone to care for his chickens while he was away.
M.R. understood that he was sent for an evaluation by this Court. He did not believe that he had any sexual problems. He maintained his innocence that he never touched his stepdaughter, N.B. When interviewed by Dr. Gulati, he said, “I deny all aspects of the offence”.
He asserted that there has never been any sexual interaction between N.B. and him. He had been in her life since she was eight years old. He did not touch her sexually on the night in question nor any other time. Her account of what she did to him was “completely false”. He could not understand why she would lie about something so serious.
He did not know how any of his DNA could have been found on her underwear or inside her vagina. He ventured that it could have happened by their dirty clothes sitting in a laundry pile together.
He stated that he had no sexual interest in children or anyone underage.
M.R. has three biological children from two previous relationships ranging in ages between 14 and 21.
In terms of education, M.R. completed high school in French. Thereafter, he attended a Police Foundations course at Boreal College in Sudbury. He finished one year of the two-year program before leaving it.
M.R. commented that he attended special education classes throughout the course of his schooling because he had “a hard time learning new things”.
Regarding any psychiatric history, M.R. reported to Dr. Gulati that he had none. M.R. added that when he returned from overseas, he was required to see a psychologist, but it was “easy to lie to them”. He surmised that he thought a lot of things were normal after coming back from Afghanistan, but now, he has come to understand from conversations with others that what he thought was normal was not. For example, he would become “super anxious” when he heard a phone ring. In Afghanistan, a phone ringing signified he had to go into action and shoot.
To this day, when he hears a phone ring, he feels the need to run somewhere, but there is nowhere to run. He intends to see someone through Veterans Affairs for treatment of this condition, but he has not done so yet.
M.R. agreed to undergo a full assessment at the Sexual Behaviours Clinic (“SBC”) of the ROH. The assessment included:
a) an ‘in person’ sexual behaviours interview,
b) a biopsychosocial interview,
c) a battery of biochemical laboratory tests,
d) a series of self-reported psychological questionnaires, and
e) phallometric testing.
During the sexual behaviours interview, M.R. explained that he had not had sexual intercourse in the three years prior to the assessment. Previously, he had been involved in “swinging” with other couples on the military base. He would go with other couples to have “threesomes”. He estimated that he engaged in ten or so of those, as well as roughly ten instances of “cuckolding” (an activity in which an intimate partner finds him or herself turned on by watching the other partner engage in sexual acts with a third party).
M.R. told Dr. Gulati that he masturbates approximately once per week. The last occasion upon which he did so was two weeks prior to being assessed for purposes of the Report. When he masturbates, M.R. thinks of “girls on girls” and “girls with big boobs”.
However, M.R. explained that his masturbatory habits have undergone a recent change. He shared with Dr. Gulati the following:
“About a month ago, I decided to start a spiritual journey. There is this idea that you keep your animalistic urges inside of you. If you resist your biological need to reproduce, then your body is happier and you have more endorphins so you are more aware and at one with yourself. So as a result, I have been trying to abstain from masturbation and sex as a way to become more one with myself.
Prior to this, I masturbated daily, but it never caused much issues in my life. My one partner was mad because we did not have sex as often because I was masturbating. But I did not know she was mad about it until way after we broke up. That was [A.B., N.B.’s mother].
M.R. added that he looks at pornography each time he masturbates “just to get the job done”. The ideal age of the female models he views are between 30 and 50. He reported that he masturbates 100% of the time when he is looking at pornography.
He refused any form of blood work being done at the ROH laboratory for analysis of his biochemistry. He offered that he does not trust anyone after Covid 19.
During self-reported psychological testing, Dr. Gulati observed that M.R.’s level of anger expression was average as compared to the general population.
He had no apparent substance abuse issues.
He endorsed five of 36 listed statements entertained by sexual offenders against adult women. They were:
a) women usually want sex no matter how they can get it,
b) women often falsely accuse men of rape,
c) generally, rape is not planned - a lot of times it just happens,
d) if a woman goes to the home of a man on the first date, she probably wants to have sex with him, and
e) many women have a secret desired to be forced into having sex.
- M.R. adopted only one of the 38 listed statements endorsed by men who have sexually abused children. It was:
a) a lot of times sexual assaults on children are not planned . . . they just happen.
On the scales of motor and non-planning impulsiveness, a measure of the tendency to act without thinking, and to engage in behaviours such as conducting oneself in a manner without consideration of consequences and without adequate planning, M.R. scored in the elevated range.
When subjected to phallometric testing, M.R. responded past the significance threshold to videos depicting a heterosexual couple, a lesbian couple and one of children playing in a pool. He did not respond past the significance threshold to a homosexual video. His responses, as interpreted by Dr. Gulati, demonstrated that M.R. is capable of showing sexual arousal to videos depicting consensual sexual activities between men and women, and nonsexual videos of children.
He also responded past the significance threshold to an image of two adult females and one younger male child in nonsexual slides.
While listening to audio recordings of consensual sexual activity between an adult heterosexual couple and a sexual assault of an adult woman, M.R. responded past the significance threshold. His response was more significant to the sexual assault of the adult woman than to the consenting adult heterosexual couple. He did not respond significantly to the nonsexual physical assault of an adult woman. Dr. Gulati concluded that he showed more of a preference for a sexual assault scenario. This resulted in a “positive Rape Index”.
Further, M.R. responded past the significant threshold to a “child initiated” scenario for both same-sex and opposite sex, audio scenarios. He also responded more significantly to the less physically coercive sexual scenarios with both a male and female child than to those depicting adult consenting scenarios. In essence, he was responding more significantly to the child materials. He was thus found to have both a “Same Sex Pedophile Index” and an “Opposite Sex Pedophile Index”.
Using the most widely accepted actuarial tool nevertheless, the Static-99R, designed to assess the risk of sexual recidivism among adult male sex offenders, M.R. was assessed as being in the “Low” category. His “-1” score meant that amongst Canadian sexual offenders, 5.7% scored lower than he did, whereas 86.4% scored higher. Statistically, this translated to a 1.6% risk of sexual recidivism in a five-year follow-up and a 2.5% risk in a ten-year follow-up.
During his mental status examination, Dr. Gulati found that he was mainly “pleasant, calm and polite”. M.R. described himself as usually being in a good mood. At times however, Dr. Gulati noted that he demonstrated “scattered thinking” and would lose track of his thought process when recounting the offence details. He displayed no evidence of a “current thought disorder, delusions, bizarre thoughts, or suicidal or homicidal thoughts”. Nor did he entertain any “current perceptual disturbances like delusions or hallucinations”.
Ultimately, Dr. Gulati was able to reach a diagnosis of “no major mental disorder”. Nor could the doctor find that M.R. met the criteria for finding a “pedophilic disorder”. However, Dr. Gulati emphasized that, in light of the Positive Pedophile Index on M.R.’s phallometric results and the finding of guilt made by this Court, he remained concerned about M.R.’s future risk towards children.
Dr. Gulati recommended by way of conclusion that if the Court were to determine M.R. should receive a penitentiary sentence of two years or greater, M.R. should serve his time at the Bath Institution in Kingston. M.R. could receive at that facility treatment as a sexual offender. He would also be able to participate in group and individual psychotherapy to open up to and addresses his risk of sexual re-offence.
Crown’s Position on Sentence:
Crown counsel seeks a period of incarceration of four to four and a half years of imprisonment for M.R.
Under the Sex Offender Information Registration Act (“SOIRA”), the Crown points out that M.R. will be subjected to a 20-year, mandatory period of compliance.
He will also be obligated to provide a sample of his DNA pursuant to section 487.051 of the Code, since sexual touching is a primary designated offence.
By authority of section 109 of the Code, the court must in addition impose a 10-year weapons’ prohibition.
Lastly, the Crown seeks a section 161 Order for a period of 20 years, but allowing for an exception under sub-subsection (d), to permit M.R. to have use of the Internet and other digital networks.
Crown counsel raised her concern that M.R.’s claim he did not know he was convicted speaks loudly to his lack of acknowledgement of any sexual problem he may have to address in order to rehabilitate himself.
Denunciation and deterrence are the salient sentencing principles to be taken into account by the Court for the offence of sexual touching. Indeed, sections 718.01 of the Code mandates this Court to give primary consideration to the objectives of denunciation and deterrence in sentencing M.R. Those objectives can only be fulfilled through the imposition of a term of imprisonment.
Section 718.2(a)(ii), (ii.1), (iii) and (iii.1) all have application as well, given the circumstances of the offence committed by M.R. He abused a member of his family, his stepdaughter. He committed the offence against her when she was under the age of 18. He violated his position of trust in doing so. N.B. suffered a significant impact as a result of the crime in light of her youth and her other personal circumstances at the time it was carried out.
The Crown drew my attention to paragraphs 88 to 89 and 114 of the decision by the Supreme Court of Canada (“SCC”) in R. v. Friesen, 2020 SCC 9. There the SCC reminded sentencing judges that offenders such as M.R. ae highly morally blameworthy. They ought to appreciate the profound harm their conduct can cause upon a child.
In effect, M.R. treated his stepdaughter as an experimental, sex object. A proportionate sentence given the gravity of the offence he perpetrated and his degree of responsibility for it requires a substantial term of imprisonment to be imposed. A message of general deterrence must be sent to Canadian society. Mid to single digit penitentiary terms for sexual offences committed against children are normal. Such sentences may be imposed even when there is only a single instance of sexual abuse involving a single victim, as it was in this case.
When considered in this light, denunciation and general deterrence take on enormous dimensions.
Crown counsel also referred me to R. v. W.S., 2024 ONSC 554, where Gomery J., as she then was, provided a helpful review of recent decisions and the principles of sentencing at play in cases such as this one, which establish a range of between nine months and five and a half years for sexual offences perpetrated against child family members, or other juvenile, vulnerable victims.
The Crown also argued that there was a marked lack of mitigating factors in M.R.’s case, whereas there was an abundance of aggravating features, amongst them:
a) his complete lack of acknowledgement for having wronged N.B. in any way,
b) the results of his phallometric testing, which revealed a “Positive Pedophilic Index” for both opposite and same sex children,
c) his gross abuse of trust in taking sexual liberties with his stepdaughter in the manner he did, and
d) his bad judgment in allowing access to and administering drugs to minors living under his roof, his daughters, N.B and A.R.
- Crown counsel conceded at the end of her submissions that the position she was taking on sentence was perhaps at the higher end of the range.
Defence Position on Sentence :
Defence counsel readily acknowledged that the only appropriate sentence to be imposed for M.R. would be one of incarceration. She suggested a range of two to three years of imprisonment in the post-Friesen era.
The defence did not take issue with any of the ancillary orders sought by the Crown, except with respect to the duration of the section 161 Order. Defence counsel suggested that it should rather be of a five to ten year duration. There should also be an exception to allow contact between M.R. and all three of his biological daughters pursuant to any family court order made upon his release from custody.
Lastly, defence counsel asked for a waiver of the victim fine surcharge arguing that the imposition of any monetary fine upon M.R. upon his release would cause him undue hardship.
By way of mitigating factors, the defence emphasized that M.R. is a first-time offender. The restraint principle applies even in the absence of youth, given he is now 42 years of age. At the time of commission of the offences, he was 37. Up to that point in time, he was a law-abiding individual.
Notwithstanding his refusal to take the Covid 19 vaccine, he served his country as a member of the CAF for 14 years including a nine-month tour of duty in Afghanistan.
Regarding the offence he committed, it was a single instance of sexual touching of relatively short duration.
M.R. did not oppose the preparation of the Report. He cannot therefore be characterized as treatment averse.
Defence counsel queried whether M.R. suffered from cognitive issues. Throughout school, he needed extra help through the assistance of a special teacher. More recently, he appears to have acquired the irrational tendency to want to spring into action at the sound of a telephone ring. His chosen lifestyle of isolation is somewhat worrisome.
The defence also urged upon the Court not to lose sight of the fact that M.R.’s projected risk of recidivism was “Low” as determined by Dr. Gulati.
Defence counsel reminded the Court that M.R.’s absence of remorse, as manifested by his insistence that he is an innocent man wrongfully convicted, is to be treated as the absence of a mitigating, not an aggravating factor.
The defence also cited a handful of cases during her submissions, some of which I will refer to in greater detail below.
In sum, the defence emphasized to the Court how the tariff for sexual touching has dramatically increased since Friesen was decided, but nevertheless, sentencing must be individually tailored to arrive at a fit disposition for each specific offender.
Analysis:
In coming to a determination of what is most appropriate for M.R., I am dutybound to apply all relevant principles of sentencing statutorily recognized within sections 718 to 718.3 of the Code. I agree with the defence that sentencing is always a unique, individualized exercise. No two cases are completely alike. Nor are any two offenders completely the same.
M.R.’s sentence must take into account the circumstances of the offences he committed, as well as his personal circumstances.
Most importantly, the punishment I impose must be proportionate to the seriousness of his offences and the degree of his responsibility for them.
The majority for the SCC in R. v. Lacasse, 2015 SCC 64 underscored the primary function to be performed by an appellate court in reviewing the appropriateness of dispositions chosen by sentencing judges as follows:
“[P]roportionality is the cardinal principle that must guide appellate courts in considering the fitness of a sentence imposed on an offender. 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.”
Denunciation and Deterrence:
In my view, the principles of denunciation and deterrence are paramount when one sentences an offender for the sexual touching of a child.
The message must be delivered to M.R. and others like him that if one takes the risk of engaging in this conduct and the inherent breach of trust that accompanies a crime of this nature, one can expect to go to jail. People like M.R. ought to learn from the punishment meted out to him what their fate will be, should they do as he did.
Separation from Society:
Offenders must be separated from society where necessary. Clearly, incarceration must always be the penal sanction of last resort.
To my mind, it will only be in extremely rare and exceptional cases where jail can be avoided by the sexual abuser of a child.
Rehabilitation:
M.R. is approaching middle age. I do not consider him to be steadfastly set in his way. His distrust of authority and chosen lifestyle speaks to what I can only describe charitably as ‘distorted thinking’. My hope is that he will approach treatment which can be offered to him institutionally with a less suspicious, open mind.
His current lack of insight into the issues which need to be addressed (i.e. the Positive Pedophile Index) does not bode well for his rehabilitation and reintegration into society. I take Crown counsel’s point on this subject; however, I do not consider M.R. to be ‘a lost cause’.
Promotion of a Sense of Responsibility and Acknowledgement of Harm:
As aforementioned, a sentence crafted to promote a sense of responsibility within him when he maintains his innocence is a difficult task. Of course, to say he was wrongfully convicted is his right. I will not punish him any more or any less for doing so. I am nevertheless deeply concerned about his amenability to rehabilitation.
The sentence I settle upon must reflect the severe psychological harm his conduct visited upon his stepdaughter, N.B., and her mother, his ex-common law partner, A.B.
Succinctly, N.B. described the ordeal she was put through in her Victim Impact Statement (“VIS”), and the person who caused it as “something and someone who forever changed the course of my life”. She was “a little girl . . . still figuring out life”. M.R.’s conduct “ripped her heart in ways nobody else can”.
She immediately suffered the indignity of being “questioned by teachers and staff” and “interrogated by [her] own friends” leading to “rumours” of “allegedly having sex with [her] stepdad”. She stopped going to school altogether as a result. Her ability to find employment has been affected to this day.
She then felt isolated. Her mental health worsened. She had flashbacks and began hitting and cutting herself. Fortunately, she has been able to put this practice of self-harm behind her.
As she explained it, M.R. was “someone [she] looked up to . . . not just as a father, but someone who’s supposed to serve and protect”, and “someone who would walk her down the aisle one day”.
N.B. wishes he “could understand the damage [he’s] done”. She doubts she can “ever trust another man again”. She was left with “ruined relations with friends, family and partners” because of what he did to her.
A.B., the mother of N.B. and M.R.’s former partner in her VIS described how her daughter, his victim, is now “overwhelmed with fear, anxiety, anger, hate, blame and a loss of trust in others”. A.B. states that N.B. has been left with “emotional scars that may never fully heal”, while A.B. herself lives with her “own constant sense of guilt, anger and helplessness”.
M.R.’s crime, A.B. points out, has also affected the two younger girls who M.R. and A.B. share. As A.B. explained, the girls “may not know the full truth, but they know enough to understand that their father did something terribly wrong to their sister”.
A.B. commented that “the damage he has caused has made it nearly impossible for [her] to believe that anyone could ever truly be safe to be let into [their] lives again”. A.B. bemoans the fact that her daughters “no longer have a father figure”. She described this as “a wound” that will not heal. They are “all victims of his betrayal”.
Sadly, I am not certain that M.R. will ever be able to acknowledge the harm he has visited not only on N.B., but A.B. and his own two younger daughters as well.
Aggravating and Mitigating Circumstances:
- I find the following features of the offences committed by M.R. to be aggravating:
a) the sexual touching of his stepdaughter was an egregious breach of trust,
b) the offence was committed upon a member of his family, N.B., who found herself particularly vulnerable and eager to restore a relationship with the only father figure she had ever known,
c) N.B. was a young person only 14 years of age at the time,
d) the offence left a lasting impact upon N.B., and she may remain scarred by it her entire life, and
e) M.R.’s decision to provide any type of intoxicant to his 14-year-old daughters was an extremely poor exercise of judgement on his part to say the least.
- The mitigating factors are:
a) M.R. is a first offender, and
b) he is somewhat amenable to treatment given his willingness to cooperate with Dr. Gulati and to subject himself to almost all forms of testing for purposes of preparation of the Report.
Parity:
- Section 718.2(b) of the Code provides:
“A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances.”
The Case Law:
Crown and defence counsel drew my attention to several authorities attempting to assist the Court in identifying the appropriate range for the sentence which ought to be imposed upon M.R.
Below I will refer to the case law which I find to be particularly helpful to my task of arriving at a proper sentence for him.
I would note firstly that any pre-Friesen cases are of limited to no value. Friesen signaled a cataclysmic change in how sentencing judges are to treat sexual offences committed by adults upon children. For far too long, the legal consequence of sexually abusing a minor was alarmingly lenient. Indeed, defence counsel referred me to the decision of R. v. Habinski, 2015 ONCJ 509, where just five years before Friesen was decided, Harris J. imposed a sentence of 60 days and three years of probation, where the adult offender had touched the breasts of a 15-year-old girl he had employed, and whose pants he later pulled down in order to touch the lips of her vagina. Times have certainly changed since then.
I agree with Crown counsel that Gomery J., as she then was when she wrote the Reasons for Sentence in W.S., settled upon an appropriate new range for the offence of sexual touching. Depending on the circumstances of the case and the moral blameworthiness of the offender, her review of the cases led her to conclude that sentences can now vary between nine months and five and a half years.
A case relied upon by the defence, R. v. J.W.W., 2025 BCSC 849, involved facts where an offender was convicted of sexually touching a victim almost 30 years ago when she was between the ages of five and ten years old. The offender masturbated himself to the point of ejaculation on three occasions. He then rubbed semen on her back. There was also one incident of him having taken her hand and used it to masturbate him. Milman J. sentenced the offender to 30 months imprisonment.
J.W.W. is readily distinguishable on the basis that it was an historical case. Any attempt by a sentencing judge to impose meaningful punishment is often difficult in a historical context. The person the offender was three decades ago is rarely the man he is at present. Indeed, Milman J. considered it to be an “important mitigating factor” that the “offending conduct occurred decades ago”. He had led an otherwise “productive life”. He had been “caring and generous to many others”. That is not this case.
Almost all the delay in M.R.’s case between the offence date and now was attributable to his difficulties in retaining counsel, changing counsel, and retaining an expert to assist in his defence. M.R. is still very much of the same quality and character at 42, his present age, as he was at 37, when he committed his crime.
In R. v. P.H., 2024 ONCJ 155, my colleague, Kim J., was dealing with an offender who had sexually touched a child between the ages of three and four on four separate occasions. The touching involved digital penetration and contact with the external area of the victim’s vagina. On one occasion, the victim felt pain when the offender scratched the inside of her vagina.
Kim J., upon his review of the cases, settled upon a range between 18 and 36 months of imprisonment. Ultimately, he imposed two years less a day imprisonment to be followed by two years of probation. His decision, it appears, was compelled by a desire to mete out an extended period of supervision for the offender. At paragraph 51 he wrote, “ . . . a penitentiary term beyond two years would preclude my ability to impose a probation order, which could adequately address the protection concerns expressed by the victim and her mother”.
Another case provided by the defence for my consideration, R. v. S.P.W., 2021 NSPC 24, involved the biological father on multiple occasions during access visits having his daughter between the ages of four and six years old touch his penis, masturbate him to the point of ejaculation and taste the semen. The sentencing judge imposed a 56-month penitentiary term. However, Tax J. emphasized the mitigating effect of the guilty plea and the genuine remorse demonstrated by the offender.
On the contrary, M.R. put the Crown to the strict proof of its case against him beyond a reasonable doubt. He will not be punished for this of course, but this does indeed constitute an absence of a mitigating factor. Additionally, there has been no expression of remorse beyond his acknowledgement that giving cannabis edibles to his 14-year-old daughters was bad judgement on his part.
The decision of my colleague, Richardson J., in R. v. T.A., 2022, ONCJ 528, was quite factually divergent from the case before me. It is of little value as a result. It involved over the clothes touching of the breast and vaginal areas of a step-granddaughter, when she was just nine or ten years of age, by the step-grandfather, who, at the time of sentencing, was 70 years old. It did not involve digital penetration as in M.R.’s case. Additionally, unlike M.R., T.A. pleaded guilty and was genuinely remorseful for what he had done. Notwithstanding, Richardson J. imposed a sentence of two years less a day and three years of probation.
Closest on its facts to M.R.’s case is R. v. J.D., 2023, ONSC 1088. The Court of Appeal for Ontario upheld the sentence of three years imprisonment imposed at first instance for a 42-year-old offender, who sexually assaulted his wife’s 18-year-old niece by touching her breasts and digitally penetrating her vagina without her consent (see R. v. J.D., 2024 ONCA 286).
The offender lacked any criminal history and was generally of good character. His marriage broke down in the wake of the offence he committed. There were also immigration consequences which would flow from the fact of his conviction and the quantum of the sentence imposed.
The sentencing judge, Conlan J. pointed out at paragraphs 29 and 30 that:
29The aggravating factors, however, are plentiful and serious. The moral blameworthiness of this offender is high. Rehabilitation and the principle of restraint are important, especially for this first-offender, but denunciation and general deterrence are paramount here, in my opinion.
30This was a gross abuse of trust committed by J.D. against, effectively, his niece and a young woman he knew was vulnerable. This sexual assault was varied, including both the fondling of the victim’s breast and the digital penetration of her vagina, and it was not momentary but rather lasted several minutes in its totality. The digital penetration was committed against a helpless person, barely an adult, and it started while she was asleep. This crime has had a devastating effect on the victim, moving her from what was already a fragile and mentally unstable place to one where she feels completely worthless and amounting to nothing.
- The above commentary is particularly apposite in M.R.’s case, except for any immigration consequence, which, of course, as a Canadian citizen, would not apply to him.
A Fit Sentence for M.R. in the Circumstances of the Offences He Committed and His Personal Circumstances:
Although denunciation and deterrence are the sentencing principles of greatest importance, I must exercise restraint in deciding upon the appropriate length of imprisonment for M.R. Only incarceration can serve to address the high level of moral blameworthiness which attached to the crime he committed. However, I do not believe M.R. is incorrigible. He can be rehabilitated.
I find that M.R., as a sexual offender, is not an anomaly. Any man who is found guilty beyond a reasonable doubt of a heinous act such as this, involving the digital penetration of a 14-year-old stepdaughter, is unlikely to change his tune at the sentencing stage. Pride stands in the way of acknowledgement. No one wants to wear the label of child molester or pedophile. Unfortunately for M.R., the evidence overwhelmingly pointed to the fact that he is.
That said, he remains a first offender. He has been assessed as a low risk to reoffend by Dr. Gulati. M.R. can be treated institutionally notwithstanding he may forever maintain his innocence, which is his right, and which must never be regarded as aggravating.
As stated by Holowka J. recently in R. v. Devin Langlois, 2024 ONSC 4500 at para. 49:
It is well-recognized that where an offender has never served a period of incarceration, the shortest sentence possible ought to be imposed: R. v. Hoang, 2024 OCNA 361 at para. 78. See also R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 at para 36.
- I note as well the decision of the Court of Appeal for Ontario, Hoang, one of the cases referred to by Holowka J. above, involved a 38 year old, first time offender. M.R. was similarly aged at 37 when he committed the offence for which he is about to be sentenced.
Conclusion:
Upon assessment of all relevant provisions of the Code, I find that I must jail M.R. for a period of three years for the s. 151 offence. It is as low as I can go under the circumstances and yet respect all relevant principles of sentencing.
There will be a 30-day period of imprisonment to be served concurrently for the offence of distributing cannabis to a minor contrary to s. 9(1)(a)(ii) of the Cannabis Act.
By way of ancillary orders, M.R. shall be required:
a) to provide a sample of his DNA to the authorities under section 487.051 of the Code,
b) to comply with all applicable provision of SOIRA for a period of 20 years,
c) to refrain from possessing a weapon for a period of ten years pursuant to s. 109 of the Code, and
d) under s. 161 of the Code, for a period of 20 years, not to:
(i) attend at a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre,
(ii) be within two kilometres of any dwelling-house where N.B. ordinarily resides or attends school or work,
(iii) seek or obtain any employment, whether or not the employment is remunerated, or become or be a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years, and
(iv) have any contact — including communicating by any means — with a person who is under the age of 16 years, unless it is in accordance with a family court order made after today’s date to permit M.R. to have parenting time with his biological children, assuming on the evidence put before the family court, such contact with his biological children is deemed appropriate.
- Lastly, I will waive the imposition of any victim fine surcharge for M.R. I find it would cause him undue hardship to have to pay even a modest fine, given the amount of time he will serve prior to the likelihood of him being paroled.
DATED: December 16, 2025
March, M.G., J.