WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
R.D.
Before Justice G.P. Renwick
Heard on 04 September 2025
Reasons for Sentence released on 08 September 2025
J. Gardezi counsel for the prosecution
S. Wagman and S. Grewal counsel for the Defendant R.D.
REASONS FOR SENTENCE
INTRODUCTION
1Following a contested trial, I found the Offender guilty of sexual assault and sexual interference committed against a 13-year old female over several dates from December 2020 until January 2021.
2Pursuant to the principles in R. v. Kienapple, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729, the prosecutor sought a stay of sexual assault and seeks the Offender to be sentenced to 15 months imprisonment for sexual interference, along with ancillary Orders. The Offender seeks a conditional sentence or intermittent jail (if the sentence is low enough), citing the Offender’s personal circumstances and the nature of the offence.
3The conviction relates to repeated incidents of sexual touching over clothing of the complainant’s breasts and thighs. The Offender was a trusted family friend and the offences occurred in the complainant’s home and during car rides.
4These reasons explain why a 12-month sentence of imprisonment is appropriate.
GOVERNING PRINCIPLES
5The fundamental purpose of sentencing under s. 718 of the Criminal Code is to promote respect for the law and a just, peaceful, and safe society. The sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1). It must also reflect parity, restraint, and the need to consider all reasonable sanctions other than imprisonment (s. 718.2).
6In R. v. Friesen, 2020 SCC 9, the Supreme Court emphasized that sentences for sexual offences against children have historically been too low and must better reflect the harm caused and the moral blameworthiness of the offender. The Court reaffirmed that denunciation and deterrence are paramount in sentencing for sexual offences involving children.
7In R. v. Proulx, the Supreme Court spoke about the principle of restraint when considering imprisonment:
Parliament has sought to give increased prominence to the principle of restraint in the use of prison as a sanction through the enactment of s. 718.2(d) and (e). Section 718.2(d) provides that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances", while s. 718.2(e) provides that "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders". Further evidence of Parliament's desire to lower the rate of incarceration comes from other provisions of Bill C-41: s. 718(c) qualifies the sentencing objective of separating offenders from society with the words "where necessary", thereby indicating that caution be exercised in sentencing offenders to prison...[1]
8The Supreme Court has instructed that section 718 requires a sentencing judge to consider more than simply denunciation, deterrence, and rehabilitation. The court must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused by an offender, while attempting to rehabilitate or heal the offender.2
9Although the rehabilitation of the Offender is a secondary consideration in the overall calculus of an appropriate sentence in this case (behind denunciation and deterrence and along with restraint and totality), it is still a factor I must consider.
DISCUSSION
10The following aggravating factors exist:
i. The complainant was a child. At the time of the offence she was 13 years old;
ii. The Offender was in a position of trust over the complainant. He was checking in on the complainant or providing her car rides on her mother’s behalf;
iii. Some of the instances of sexual touching occurred in the complainant’s home, a place where she was entitled to feel safe;
iv. The complainant has suffered emotional trauma which has disrupted her education and emotional well-being; and
v. The offending was repeated over a period of time, suggesting a pattern of behaviour rather than an isolated lapse of judgment.
11These factors are consistent with those identified in similar cases relied upon by the prosecution: R. v. Rustaie, [2024] O.J. No. 6250 (C.J.), R. v. Lloyd, [2021] O.J. No. 5163 (C.J.), and R. v. H.A.C., [2021] O.J. No. 7686 (C.J.). In those cases custodial sentences of a similar duration were imposed for similar conduct.
12There are also mitigating factors present:
i. The Offender is a first offender, with no prior criminal record;
ii. The Offender has the support of his wife and a family friend;
iii. The Offender suffers from asthma and diabetes;
iv. The Offender has been on bail for four years, without incident;
v. The Offender has expressed remorse for the complainant; and
vi. The Offender consented to the ancillary Orders sought.
13While these factors are mitigating, they do not rise to the level of exceptional circumstances that would justify a conditional sentence. As noted by the Ontario Court of Appeal, conditional sentences for sexual offences against children are only appropriate in rare and exceptional cases: R. v. M.M., 2022 ONCA 441.
14The Offender is not a Canadian citizen and he also faces the collateral consequence of deportation to Jamaica, following the completion of his custodial sentence. While this consequence is significant and may impact his future in Canada, it does not outweigh the need for a custodial sentence in light of the seriousness of the offence. As held in R. v. Pham, 2013 SCC 15, immigration consequences may be considered at sentencing, but they cannot override the principles of proportionality, denunciation, and deterrence, or skew the sentencing process.
15The sentencing authorities relied upon by the Offender to justify community custody were largely unhelpful because they involved situations of exceptional circumstances (for example a global pandemic), a guilty plea (where the offender had also received treatment), or a joint request by both parties for a conditional sentence of imprisonment.
SENTENCE IMPOSED
16I have taken into account that the Offender is a first offender. He deserves the least restrictive form of punishment commensurate with his culpability. A sentence of imprisonment is required but it must not be likely to crush the Offender’s spirit and hinder his rehabilitation. There is no alternative form of punishment that equally responds to this offence, the moral blameworthiness of this Offender, and the harm he has caused.
17In the absence of any exceptional circumstances, a conditional sentence of imprisonment is insufficient to deter others or appropriately denounce this offence.
18I have considered the sentencing authorities submitted by the parties, the aggravating and mitigating features of this offence, the collateral consequences facing the Offender, and the fact that is it unknown if the Offender suffers from paedophilia or his offending was merely predatory and opportunistic.[3]
19A sentence of 12 months imprisonment is appropriate. This length of imprisonment reflects the gravity of the offence, the harm caused to the complainant, and the Offender’s moral blameworthiness. It is also the least restrictive custodial sentence that adequately addresses the principles of denunciation, deterrence, and proportionality. Lastly, this length and form of custody also accounts for the Offender’s prior unblemished character in the short period of time he has been in Canada and his several years on bail.
20Following his release, the Offender shall be subject to 2 years of probation with the following conditions:
Keep the peace and be of good behaviour;
Report to a probation officer within 5 days of release and thereafter as directed;
Notify your Probation Officer in advance of any changes of name, address, or occupation;
Have no contact with the complainant (who will be named in the Order);
Do not attend at or within 50m of any place where the complainant is found or known to be, including her place of residence, education, employment, or worship;
Do not possess any weapons as defined by the Criminal Code;
Complete any treatment or counselling for sexual boundaries as required by the Probation Officer; and
Complete any releases of information that will enable your Probation Officer to monitor your attendance and completion of any required treatment or counselling.
21The following ancillary Orders are imposed on consent.
22While in custody, the Offender is prohibited from contacting the complainant (who will be named in the Order) directly or indirectly, pursuant to s. 743.21(1) of the Criminal Code.
23While in custody, pursuant to s. 487.051(1) of the Criminal Code, the Offender will submit to a sampling of his deoxyribonucleic acid (“DNA”) to be analyzed and to have the results uploaded into the national DNA databank. The Offender’s DNA is to be taken by a qualified person in circumstances that are hygienic, that respect the Offender’s bodily integrity and privacy, and that respect his health and safety. Force may be used to extract the Offender’s DNA if he does not submit to the DNA sampling voluntarily.
24The Offender must comply with the provisions of the Sex Offender Information and Registration Act for 20 years (s. 490.013(2)(b) of the Criminal Code).
25Pursuant to s. 109 of the Criminal Code, the Offender is prohibited from possessing the listed items for 10 years.
26Pursuant to s. 161 of the Criminal Code, for ten years following release from imprisonment, the Offender is prohibited from:
i. Attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present;
ii. Attending a daycare centre, schoolground, playground, or community centre;
iii. Seeking, obtaining, or continuing any employment or voluntary position in any capacity that involves being in a position of trust or authority towards persons under the age of 16 years; and
iv. Having any contact or communicating by any means with a person who is under the age of 16 years, unless in the direct company of an adult who is aware of your conviction.
27For the Offender’s sake and the sake of our community if he remains in Canada, it is hoped that the Offender becomes fully rehabilitated upon the completion of his sentence.
Released: 08 September 2025
Justice G. Paul Renwick
3Parenthetically, it is also unknown whether this Offender is at a low, medium, or high risk to re-offend.
Footnotes
- R. v. Gladue, 1999 CanLII 679 (SCC), [1999] S.C.J. No. 19 at paras. 43 and 48.
- 2000 SCC 5, [2000] S.C.J. No. 6, at para. 17.