Her Majesty the Queen v. Stuckless

[Indexed as: R. v. Stuckless]

Ontario Reports

Court of Appeal for Ontario

Rouleau, Pepall and Huscroft JJ.A.

June 18, 2019

146 O.R. (3d) 752 | 2019 ONCA 504

Case Summary

Criminal law — Sexual offences — Sentence — Accused sexually abusing 18 young boys over period of more than 20 years while employed in positions of trust — Sentence of 6.5 years' imprisonment for 102 counts of sexual offences being demonstrably unfit — Sentence varied to ten years' imprisonment.

The accused pleaded guilty to 43 counts of indecent assault on a male, 47 counts of gross indecency and ten counts of sexual assault. He pleaded not guilty but was found guilty of two additional counts of gross indecency. He abused 18 young boys between 1965 and 1985 while employed in positions of trust. The offences involved sexual touching, digital penetration and fellatio. In 1998, the accused was sentenced to a term of six years' imprisonment for other offences against 24 boys. The sentencing judge in this case found that denunciation and deterrence demanded a very lengthy period of incarceration in this case. However, taking into account expert evidence that the accused posed a very low to low risk for future sexual offending, she concluded that a lengthy period of incarceration was not necessary in order to protect the public. She considered the sentence she would have imposed for each offence per victim, and concluded that if those sentences were imposed consecutively, the result would be a sentence of more than 30 years, which she described as excessive and outside the established range. She considered the Crown's submission that a 12-year sentence was appropriate, and found that the facts in this case were not sufficiently different to justify a doubling of the sentence the accused received in 1998. She sentenced the accused to 6.5 years' imprisonment, less six months' credit for the three years he spent on restrictive bail. The Crown appealed.

Held, the appeal should be allowed.

Per Huscroft J.A.: The sentence was demonstrably unfit. Once the sentencing judge evaluated the individual sentences per victim that would have been appropriate, it was difficult to see how she could go on to conclude that a total sentence of 6.5 years was appropriate. She appeared to have overlooked the significant evolution in sentencing jurisprudence relating to the sexual abuse of children that has taken place since the accused was sentenced in 1998. She also erred in considering the decision of the Ontario Court of Appeal in R. v. D. (D.) to have established a cap on the range of available sentences for sexual offences against children. The magnitude and gravity of the accused's offending required a penitentiary sentence in the low to mid double-digit range. Nothing less would meet the need for denunciation and deterrence in the circumstances of this case. It was not appropriate to adjust the sentence because the accused committed the offences during a period in which he committed other offences for which he had already been punished. The proportionality principle operates having regard to the circumstances of the offences for which an accused person is being sentenced. It was not appropriate to speculate as to the sentence the accused would have received if all of his crimes committed during the relevant period had been before the court when he was sentenced in 1998. The 1998 sentence was not to be considered as forming a part of, or mitigating, the sentence to be imposed. The sentence should be varied to ten years' imprisonment, less the six-month credit granted by the sentencing judge. Absent the significant mitigating factors, including the accused's guilty plea to most of the charges and the sentencing judge's findings concerning his rehabilitation, a lengthier sentence would be warranted.

Per Pepall J.A. (concurring): The sentence was demonstrably unfit. The sentencing judge mischaracterized the gravity and scope of the offences. The seriousness of the accused's conduct was not reduced by the absence of sexual intercourse. Although changes set out in the Criminal Code for sexual offences against children cannot be applied retrospectively, the court need not be oblivious to what the changes suggest about Parliament's view of the gravity of such offences. The accused's conduct constituted a serious invasion of the sexual integrity of his victims. The sentencing judge erred by focusing on the physical acts rather than the victims' sexual integrity. She also erred in her treatment of the number of victims. Most of the cases reviewed by the sentencing judge involved far fewer victims. She reconciled that issue by stating that, in those cases, each victim was abused more frequently and for longer periods of time than the accused's victims. The gravity of the harm imposed by the accused's conduct was not diminished because there were fewer instances of abuse per victim. Even one instance of sexual abuse can permanently alter the course of a child's life. The sentence should be varied to ten years' imprisonment, less a credit of six months for time spent on bail.

Per Rouleau J.A. (dissenting): The sentencing judge did not commit the errors identified by Huscroft and Pepall JJ.A. She correctly applied the principle of proportionality, such that appellate intervention was not warranted.

APPEAL by the Crown from the sentence imposed by M.B. Greene J., [2016] O.J. No. 3030, 2016 ONCJ 338.

Gregory Tweney and Philippe Cowle, for appellant.

Lydia Riva, for respondent.

HUSCROFT J.A.:

Overview

[1] This is a horrific case of sexual abuse. The question on appeal is the fitness of the sentence.

[2] Gordon Stuckless was convicted on 102 counts of sexual offences against 18 young boys, abuse that was committed during a period of over 20 years. He pleaded guilty to 43 counts of indecent assault on a male; 47 counts of gross indecency; and ten counts of sexual assault. He pleaded not guilty but was found guilty of two additional counts of gross indecency. He was found not guilty of two counts of buggery.

[3] The sentencing judge imposed a sentence of six-and-a-half years, less six months' credit for the three years the respondent spent on restrictive bail. The resulting six-year sentence was imposed for each of the 102 counts concurrently.

[4] The Crown seeks leave to appeal the sentence imposed by the sentencing judge.

[5] I have concluded that the sentence imposed was demonstrably unfit. I would grant leave to appeal and allow the appeal for the reasons that follow.

Background

[6] Gordon Stuckless is a sexual predator. The magnitude of his offending is staggering. The harm that he has caused is incalculable.

[7] Stuckless abused 18 young boys, most of them nine to 11 years old, over a period of more than 20 years. He preyed upon boys who were vulnerable: boys raised by single parents; boys whose parents were busy working; boys who were in special programs at school. One of his victims was a relative of his.

[8] He acquired a series of positions of trust in order to gain access to young boys, working as a teacher's assistant, an assistant gym teacher and at a community centre. He took on volunteer activities, coaching minor league hockey and lacrosse. He was also employed at Maple Leaf Gardens.

[9] Stuckless groomed his victims, providing them with hockey sticks and sports memorabilia, promising to introduce them to Toronto Maple Leaf players, taking them to movies and hockey games, and so on, all with a view to gaining an opportunity to abuse them. He also used psychological and physical threats. He sexually abused the boys in cars, in the woods, at schools, at hockey rinks, in movie theatres, at a dental office and at Maple Leaf Gardens. He abused some of the boys in their own homes while he was a guest of their families. He assaulted many of the victims numerous times over a period of several years.

[10] Stuckless has an extensive record of similar behaviour. In 1998, he was sentenced to a term of six years' imprisonment for offences committed against 24 boys. He has now been convicted of sexually abusing approximately 50 boys over a period of three decades, from 1965-1995.

[11] At the outset of what was scheduled to be a lengthy preliminary inquiry in 2014, Stuckless re-elected to be tried in the Ontario Court of Justice and pleaded guilty to 100 counts on the information. A trial was held on four remaining counts, in which two of the 18 victims testified. Stuckless was convicted of two counts of gross indecency in relation to digital penetration of two of his victims, M.S. and L.F., but acquitted of two counts of buggery because the trial judge had a reasonable doubt whether the victims were penetrated by Stuckless's penis or his finger.

[12] Many of the relevant facts were agreed upon, but a Gardiner hearing was held to determine aggravating factors in respect of five victims: the two victims who testified at trial and three other victims (S.K., K.P. and J.D.), all of whom testified.

The Sentencing Judge's Decision

[13] The Crown initially proposed to make a dangerous offender application and the sentencing judge ordered an assessment pursuant to s. 752.1 of the Criminal Code, R.S.C. 1985, c. C-46. Dr. Mark Pearce expressed the opinion that, despite the results of actuarial risk assessment tools including the PCL-R, the SORAG and the Static-99R, which predicted that the respondent was a moderate to high risk to reoffend, he considered the respondent a "very low to low risk for future sexual offence".

[14] The Crown chose not to proceed with the dangerous offender application and sought a global sentence of 12 years, imposed concurrently on each count. Stuckless sought a sentence of five years, less credit for the time spent on restrictive bail.

[15] The sentencing judge acknowledged the overarching principle that the sentence imposed must be proportionate to the gravity of the offence and the degree of responsibility of the offender. She noted, further, that although there are several objectives of sentencing, the case law has established that in sentencing child sex abusers, the focus must be on denunciation, deterrence and protection of the public. The sentencing judge accepted that denunciation and deterrence demanded a lengthy period of incarceration in this case -- in her words, they "scream out" for a lengthy sentence. However, based on Dr. Pearce's opinion, which she accepted, she concluded that a lengthy period of incarceration was not necessary in order to protect the public.

[16] The sentencing judge then assessed the aggravating and mitigating factors. The numerous aggravating factors included:

(1) the age of the victims;

(2) the respondent's breach of trust;

(3) the significant and profound victim impact;

(4) the sexual abuse occurred in places that should have been safe havens for the victims;

(5) the respondent targeted vulnerable children and vulnerable families;

(6) the respondent threatened two of the victims;

(7) the respondent's conduct was calculated, premeditated and manipulative;

(8) the offences were invasive and escalated with some victims;

(9) the offences involved persistent, systematic and prolonged abuse over three decades;

(10) there were numerous victims.

[17] The sentencing judge found that Stuckless's decision to plead guilty to 100 counts was a meaningful mitigating factor. Although she rejected much of his evidence at trial and found him to be both unreliable and at times not credible, the sentencing judge accepted that he was truly remorseful for his conduct. In addition, she found that he was dedicated to his rehabilitation: he had lived in the community without incident since he completed a six-year sentence in 2001; continued to take the medication Lupron to control his sexual urges; and worked with a community-based organization that helped him to avoid re-offending. The sentencing judge also accepted that Stuckless had himself been a victim of sexual abuse in his youth, which she considered a relevant factor.

[18] The sentencing judge considered the sentence she would have imposed for each offence per victim before assessing the impact of the principle of totality. She considered that four years was appropriate for offences involving forced digital penetration and prolonged sexual abuse; three to four years was appropriate for offences involving digital penetration or attempted digital penetration and a couple of other incidents of sexual assault; two to three years was appropriate for offences involving sexual touching in excess of 20 incidents per child; two years was appropriate for repeated offences involving sexual touching; and one to two years was appropriate for offences involving between one and six acts of fellatio on each victim. The sentencing judge concluded that if the sentences relating to each child victim were imposed consecutively, the result would be a sentence of more than 30 years, which she described as an excessive sentence outside the range.

[19] The sentencing judge then addressed the Crown's submission that a 12-year sentence was appropriate. She considered that the facts in this case were not sufficiently different to justify a doubling of the sentence the respondent received from this court in 1998, charges to which he had also pleaded guilty: R. v. Stuckless (1998), 41 O.R. (3d) 103, [1998] O.J. No. 3177 (C.A.) ("Stuckless 1998"). She also considered that a 12-year sentence was not in accordance with the case law and would fail to take into account Stuckless's rehabilitation, his years of non-offending in the community and his remorse.

[20] The sentencing judge concluded that a six-and-a-half-year sentence was appropriate. I set out her conclusion [at para. 121]:

When I consider all the evidence presented through this extended sentencing hearing, the range of sentence recognized by the appellate courts and all the relevant principles of sentencing including the need to focus on denunciation and deterrence that [ sic ] a sentence of six and a half years ought to be imposed. This sentence takes into account the aggravating factors, the prolonged and persistent nature of the abuse, the vast number of victims, the profound impact on the victims, the prior sentence in 1998 and Mr. Stuckless' prospects for rehabilitation . . . while also taking into account the fact that Mr. Stuckless has already served a six year sentence for offences in the same time frame, the fact that there are fewer victims in this case, that he has been in the community since 2001 without committing further offences and that he has been voluntarily taking Lupron.

[21] The six-and-a-half-year sentence was reduced to six years to account for pre-trial credit.

Discussion

The respondent's crimes

[22] I have described the respondent's crimes in general terms. The generality of this description risks understating the magnitude and gravity of his offending, so it is necessary to outline in greater detail exactly what he did to each victim. The following details are taken from an agreed statement of fact, as well as the sentencing judge's ruling on the Gardiner hearing. Two of the victims asked to be exempt from the publication ban under s. 486.4 of the Criminal Code, and their names are listed below.

[23] T.J. was 11 years old when he met the respondent, who was working as an assistant gym teacher at his school. The respondent masturbated T.J., fondled his penis, attempted to perform oral sex on him and masturbated to the point of ejaculation in front of him. The sentencing judge found that T.J. was digitally penetrated by the respondent. Throughout their interactions, the respondent promised to give T.J. Toronto Maple Leafs gear. He also threatened to tell T.J.'s father that he had misbehaved if T.J. told anyone about the abuse. The sentencing judge found that this was a substantial threat because the respondent knew that T.J.'s father had been abusive toward him.

[24] K.P. was 13 years old when the respondent, who was working as an assistant gym teacher at his school, first assaulted him by grabbing his penis. K.P.'s father was an alcoholic and the family struggled financially. The respondent arranged with K.P.'s father to drive him to his hockey games, and proceeded to abuse K.P. 20-30 times over an 18-month period. The respondent would masturbate himself while rubbing K.P.'s groin or watching his penis, or would make K.P. masturbate him. The respondent masturbated K.P. in the gym teacher's locker room. The sentencing judge found that the respondent threatened to run K.P. over with a vehicle and make it look like an accident if he told anyone about the abuse. The respondent also groomed K.P. by taking him to the movies and giving him hockey sticks from NHL players, brand name clothing and food.

[25] R.C. was 11 or 12 years old when he met the respondent, who was the local hockey coach, at a hockey rink. The respondent groomed R.C. by providing him with access to Maple Leaf Gardens and promising to introduce him to his favourite hockey player. The respondent took R.C. to a secluded area and masturbated him on several occasions and required R.C. to masturbate him. The respondent took R.C. into a basement room at Maple Leaf Gardens on six to ten occasions, and on each occasion R.C. would masturbate the respondent. The respondent told R.C. that if anyone found out, he would tell everyone that R.C. was a "fag".

[26] S.F. was ten years old when the respondent befriended him and his family. The respondent was an overnight guest in S.F.'s family home on a weekly basis. The respondent masturbated in front of S.F. several times daily and fondled S.F.'s genitals. This occurred 25-75 times in the basement of S.F.'s home, and additionally at movie theatres. The respondent also masturbated S.F. and performed fellatio on him on approximately five occasions.

[27] J.D. was 11 years old when he was taken to a room at Maple Leaf Gardens by John Paul Roby, an usher at the Gardens and now a convicted pedophile. J.D. was forced to perform fellatio on the respondent, who ejaculated.

[28] The respondent abused M.S. when he was nine to 12 years old. The respondent masturbated M.S. on numerous occasions, masturbated himself while fondling M.S., and performed fellatio on M.S. The last incident of abuse involved anal penetration. The respondent denied charges of buggery and gross indecency and a trial was held, at which M.S. testified. The trial judge found that M.S. honestly believed that he had been penetrated by the respondent's penis. M.S. screamed in pain and begged the respondent to stop, but he did not. The trial judge was left with a reasonable doubt on the count of buggery because M.S. did not see the object that penetrated him, but she found the respondent guilty of gross indecency.

[29] K.D. was 13 years old when he met the respondent, who was then an assistant gym teacher at his school and coach of the school hockey team. The respondent befriended K.D. and his single mother, and as a regular visitor to the family home would masturbate K.D. after offering to tuck him and his brothers into bed. This happened on at least four occasions.

[30] D.B. was only eight years old when he met the respondent at a travelling carnival. He recalls telling his mother that the respondent had touched him and being very shaken up. Four years later, he saw the respondent at Maple Leaf Gardens on two occasions. The respondent followed him into a washroom and masturbated him, and did so again some months later after offering to drive him home.

[31] P.S. was a 12-year-old student when the respondent, then an assistant gym teacher at his school, abused him on three occasions while he was getting changed in the change room. The respondent fondled his penis, attempted to perform fellatio on him on another occasion and once performed fellatio on P.S. until he managed to escape.

[32] C.B. was 12 years old when the respondent coached his hockey team. The respondent befriended him and his parents, and took C.B. to Maple Leaf Gardens and out for meals. On approximately seven occasions, the respondent took C.B. to a school where he masturbated him, performed fellatio on him and would masturbate himself until he ejaculated into a Kleenex.

[33] K.M. was nine years old when the respondent was a teacher's assistant at his school. The respondent was also his hockey coach. K.M. was in a class for students with behavioural problems and the respondent often would refuse to allow him to leave the class for recess, on the pretext that he had done something wrong. Each time this occurred, the respondent would masturbate K.M. On another occasion, K.M. was kept behind following a hockey game and the respondent put his hands on K.M.'s knees and thighs while K.M. was in his underwear, but the assault stopped when the respondent was interrupted by the school principal.

[34] S.M. was 11 years old when he was befriended by the respondent, who took him to wrestling matches, golfing and to the movies. On numerous occasions, the respondent took S.M. to a dental office he cleaned, and there he licked S.M.'s ears and armpits while he sat in a dental chair. He performed fellatio on S.M. until S.M. ejaculated, then masturbated himself until ejaculation. On several occasions the respondent did the same thing to S.M. at a home where he was house-sitting.

[35] J.S. was 13 years old when the respondent was a teacher's assistant in a special class he attended. The respondent threatened the students with the prospect of being held back. The sentencing judge found that the respondent stroked J.S.'s penis, performed oral sex on him and attempted to digitally penetrate his anus. This behaviour was repeated on a second occasion.

[36] G.P. (deceased) met the respondent when he was 12 years old. The respondent, who was the coach of his hockey team, befriended G.P. and took him to movies and hockey games at Maple Leaf Gardens. The respondent also befriended G.P.'s parents. He was welcomed into the family home and was permitted to take G.P. for a sleepover at a neighbourhood farm. The respondent touched G.P.'s penis and buttocks while he was in the hockey change room.

[37] S.L. was ten or 11 years old when he met the respondent, who was a teacher's assistant at his school and coach of his minor hockey team. The respondent befriended S.L. and took him to Maple Leaf Gardens, to movie theatres and fishing. He also befriended S.L.'s parents and was welcomed into the family home. While they were in his car, the respondent grabbed S.L.'s penis over his clothing. At the hockey arena change room, the respondent put his hand into S.L.'s underpants to grab his penis.

[38] B.B. was ten years old when he met the respondent, who was a teacher's assistant at his school. The respondent groomed him by taking him to hockey games at Maple Leaf Gardens and to the movies. The respondent was always touching and rubbing against B.B. and would grab his penis. The respondent masturbated B.B. at the movies, in the school change room and on three occasions in a swimming pool at a private home.

[39] S.K. was ten years old and sometimes lived in a foster home. The respondent was a teacher's assistant at his school, where S.K. was in a class for students with behavioural problems. On numerous occasions the respondent told S.K. that he had done something bad and was not allowed outside for recess. The respondent then masturbated S.K. and tried to push S.K.'s hand towards the respondent's penis. The respondent frequently promised to take S.K. to Maple Leaf Gardens and get a signed hockey stick for him, but would then refuse, telling S.K. that he would not do so because S.K. had been bad. On at least four occasions, the respondent took S.K. from his class to the boys' washroom, where he masturbated him. The sentencing judge was left with reasonable doubt that the respondent had exercised a criminal degree of force to take S.K. to the washroom. The respondent also threatened to take S.K. to the principal's office if he did not go with him to the washroom. S.K. testified at the Gardiner hearing that he felt as though he had to choose between getting in trouble and being sexually abused.

[40] L.F. was abused by the respondent over a period of two years. The trial judge made no findings at the time of sentence as to how old he was, but he testified that he was eight to nine years of age. The respondent fondled him on multiple occasions and performed fellatio on him while masturbating himself. He denied charges of buggery and gross indecency and a trial was held, at which F. testified. The trial judge found that the respondent penetrated F.'s anus and that F. honestly believed that the respondent used his penis. He cried out in pain and asked the respondent to stop, but the respondent did not. The trial judge had a reasonable doubt on the count of buggery because F. did not see the object that penetrated him, but she found the respondent guilty of gross indecency.

The impact of the respondent's crimes

[41] The impact of the respondent's offending has been sustained and profound.

[42] All of the victims suffered terribly at his hands. Virtually all of them met the respondent when he occupied a position of trust and that trust was shattered. Many of the boys stopped playing sports because of him, and hockey in particular -- the game they loved, but a game the respondent had used as part of his grooming strategy. Many of the boys became withdrawn from family and friends and began using alcohol and drugs.

[43] Some victims considered suicide. One victim died of a drug overdose in 2004.

[44] Numerous victims have abused alcohol and drugs throughout their lives. Some went on to have criminal records. Many were beset by depression, anxiety, post-traumatic stress disorder and/or other mental illness. Many have had difficulties establishing and maintaining relationships, both personal and professional, throughout their lives. Many have long been in therapy. Most report that they continue to be affected by the respondent's offending, decades after the abuse they suffered.

[45] The impact of the respondent's crimes extends well beyond the boys to their families: to their parents, who expressed guilt about having failed to protect their children from the respondent, and having failed to see the signs of abuse; to their spouses, who have in many cases lived with troubled partners, unaware of their emotional turmoil; and to their children, with whom many of the victims have been unable to function well as fathers.

The positions of the parties

[46] The Crown submits that the sentencing judge erred in applying the totality principle and that this error caused her to unreasonably discount the substantial sentence that ought to have been imposed. In particular, the Crown points out that the sentencing judge failed to apply the approach set out in R. v. Jewell, [1995] O.J. No. 2213, 100 C.C.C. (3d) 270 (C.A.), which at the outset requires identifying the gravamen of the entirety of the offending behaviour, and likewise the total sentence to be imposed, before imposing sentences for each offence within the confines of that total. Instead, the sentencing judge decided on the appropriate sentence for each count and then adjusted the cumulative sentence in order to give effect to the totality principle.

[47] The Crown also argues that the sentence was demonstrably unfit in any event: it is disproportionate to the gravity and scope of the respondent's crimes and the extent of his moral blameworthiness; it is inconsistent with this court's emphasis on the need for exemplary sentences; and it erodes public confidence. The Crown submits that an appropriate global sentence is ten to 12 years.

[48] The respondent points out that the Crown did not argue that the total sentence should be apportioned amongst the various counts at trial. The Crown did not even mention Jewell or its progeny and cannot now do so on appeal. The respondent says that the sentencing judge made no error in law and characterizes the Crown's position as merely a disagreement as to the appropriate sentence.

[49] The respondent argues that the sentence was fit and emphasizes that the sentencing judge's decision is entitled to deference.

The standard of review

[50] It is well established that judges' sentencing decisions are entitled to deference on appeal. As the Supreme Court held in R. v. Lacasse, [2015] 3 S.C.R. 1089, [2015] S.C.J. No. 64, 2015 SCC 64, at para. 11, "except where a sentencing judge makes an error of law or an error in principle that has an impact on the sentence, an appellate court may not vary the sentence unless it is demonstrably unfit". Put another way, an appellate court can vary a sentence only if (1) it identifies an error of law or principle that affected the sentence imposed; or (2) regardless of any such error, the sentence imposed is demonstrably unfit.

[51] The Supreme Court has emphasized that the appellate inquiry into the fitness of a sentence must remain focused on the fundamental principle of proportionality, noting, at para. 53 of Lacasse:

This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides that a sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender". A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2 ( a ) and ( b ) of the Criminal Code.

The sentence is demonstrably unfit

[52] In my view, the six-and-a-half-year sentence imposed is demonstrably unfit whether or not any errors or law or principle were made in determining it.

[53] Once the sentencing judge found that consecutive sentences would result in a sentence of more than 30 years, her decision to reduce fix the appropriate sentence at six-and-a-half years was a reduction that is indeed "startling", as the Crown submitted. A substantially higher sentence was required.

[54] The ultimate question in determining whether a sentence is demonstrably unfit is whether it is an unreasonable departure from the fundamental principle of sentencing, that the sentence be "proportionate to the gravity of the offence and the degree of responsibility of the offender": Criminal Code, s. 718.1. As the Supreme Court explained, at para. 53 of Lacasse, proportionality is determined on both individual and comparative bases: that is, in relation to the accused and the offence he or she has committed, and by comparison with sentences imposed in similar circumstances. Of course, the court also must consider the principles set out in s. 718.2 in determining a fit sentence, and the relative importance of these principles varies in accordance with the nature of the crime and the circumstances in which it was committed.

[55] Moldaver J.A. set out this court's approach to sentencing in sexual abuse cases in R. v. D. (D.) (2002), 58 O.R. (3d) 788, [2002] O.J. No. 1061 (C.A.), which was decided after this court's decision in Stuckless 1998. He summarized the relevant considerations and principles from that case in R. v. Woodward (2011), 107 O.R. (3d) 81, [2011] O.J. No. 4216, 2011 ONCA 610, at para. 72:

Our children are our most valued and our most vulnerable assets. We as a society owe it to our children to protect them from the harm caused by sexual predators. Throughout their formative years, children are very susceptible to being taken advantage of by adult sexual offenders and they make easy prey for such predators. Adult sexual predators recognize that children are particularly vulnerable and they exploit this weakness to achieve their selfish ends, heedless of the dire consequences that can and often do follow. Three such consequences are now well-recognized: (i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood. Absent exceptional circumstances, in the case of adult predators, the objectives of sentencing commonly referred to as denunciation, general and specific deterrence and the need to separate offenders from society must take precedence over the other recognized objectives of sentencing.

[56] Moldaver J.A. emphasized that in sentencing adult sexual predators who have abused children, the focus of the sentencing hearing must be the harm caused to the child. Although the effect on an offender's prospects for rehabilitation is a relevant consideration, "the objectives of denunciation, deterrence, and the need to separate sexual predators from society for society's well-being and the well-being of our children must take precedence": Woodward, at para. 76.

[57] The sentencing judge began her analysis with the protection of the public and found that the respondent was at a low risk to re-offend. She went so far as to say that the protection of the public did [at para. 69] "not necessarily require a further period of incarceration". The sentencing judge then stated that the real focus had to be on the objectives of denunciation and deterrence.

[58] Once the sentencing judge evaluated the individual sentences per victim that would have been appropriate, it is difficult to see how she could go on to conclude that a total sentence of six-and-a-half years was appropriate.

[59] The sentencing judge made two points in this regard. First, she stated [at para. 116] that "the facts in the case at bar are not sufficiently different from the facts from Mr. Stuckless' 1998 convictions to justify doubling the sentencing". Second, she stated that the 12-year sentence proposed by the Crown was not in accordance with the case law and failed to take into account "Mr. Stuckless' successful rehabilitation, his years of non-offending in the community and his remorse".

[60] As to the respondent's 1998 sentence, it is important to emphasize, as this court did in D. (D.), not only that the sentence imposed in Stuckless 1998 was at the lower end of the range of sentences then available but also that appropriate sentences for adults who prey on young children would be significantly higher in future, and that the sentencing objectives of denunciation and deterrence must take precedence over other valid sentencing objectives. Indeed, D. (D.) has been described as the beginning of a "sea change" in this court's approach to sentencing adults who prey on young children: R. v. M. (D.) (2012), 111 O.R. (3d) 721, [2012] O.J. No. 3616, 2012 ONCA 520, at paras. 24-26; see, also, Woodward.

[61] The circumstances of this case are unusual: the respondent is the same offender who was sentenced in Stuckless 1998, and his offences were committed during the same time frame in which he committed the offences in that case. Nevertheless, it was incumbent on the sentencing judge to impose a sentence with regard to the jurisprudence and understanding of sexual offending as it exists today. Previous sentencing decisions are historical portraits, not straitjackets: Lacasse, at para. 57. The sentencing judge appears to have overlooked the significant evolution in sentencing jurisprudence that has taken place since Stuckless 1998.

[62] The sentencing judge also appears to have considered D. (D.) to establish a cap on the range of available sentences, given what she described as the additional aggravating factors at play in that case. Although there were significantly different aggravating factors in D. (D.), I do not agree that there were necessarily more aggravating factors in that case. But in any event, it is important to note that D. (D.) was an appeal from sentence by the accused. There was no Crown cross-appeal and Moldaver J.A. specifically cautioned that, far from being too high, if anything the sentence imposed at trial in that case fell at the lower end of the appropriate range: at para. 4. Thus, while D. (D.) articulates the relevant principles for sentencing adults who prey on children, it was not intended to and does not operate as a cap on sentences.

[63] The Crown has proffered several cases that it says are relevant in determining the appropriate total sentence in this case. The authorities range from sentences of comparable length imposed in cases with far fewer victims (for example, six years in R. v. C. (T.)), to much lengthier sentences imposed in cases with comparable or higher numbers of victims: R. v. Snook, [2014] N.B.J. No. 305, 2014 NBCA 71, 439 N.B.R. (2d) 10 (18 years) and R. v. De Jaeger, [2015] Nu. J. No. 6, 2015 NUCJ 2, affd [2018] Nu. J. No. 34, 2018 NUCA 7 (19 years).

[64] Although s. 718.2(b) of the Criminal Code requires courts to impose similar sentences on similar offenders for similar offences committed in similar circumstances, similarity or likeness -- and hence, the extent to which offenders and offences can be compared -- is a matter of degree, not kind. As Frederick Schauer has explained, likeness is a characteristic that is ascribed or attributed by the court, usually despite significant differences that exist across things being compared: "On Treating Unlike Cases Alike" (2018), 33 Const. Commentary 437, at 446. In other words, the identification of similarity for purposes of determining sentencing parity involves choice -- a decision to treat some prior cases as relevantly similar for purposes of determining the appropriate sentence in another case.

[65] So it is here. Sexual abuse cases are usually similar in some respects and necessarily different in others, and their similarities and differences may be considered more or less significant. In any particular case there may be more or fewer victims; more or fewer instances of abuse suffered by each victim; and different sorts of abuse suffered by each victim. Parsing those similarities and differences is only so helpful in determining sentencing parity. Parity cannot be achieved with anything approaching mathematical precision.

[66] Thus, the guidance Moldaver J.A. provided as to the appropriate sentence in sexual abuse cases, at para. 44 of D. (D.), was general in nature:

To summarize, I am of the view that as a general rule, when adult offenders, in a position of trust, sexually abuse innocent young children on a regular and persistent basis over substantial periods of time, they can expect to receive mid to upper single digit penitentiary terms. When the abuse involves full intercourse, anal or vaginal, and it is accompanied by other acts of physical violence, threats of physical violence, or other forms of extortion, upper single digit to low double digit penitentiary terms will generally be appropriate. Finally, in cases where these elements are accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties will be warranted. (See, for example, R. v. M. (C.A.), [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 in which the Supreme Court restored the 25-year sentence imposed at trial and R. v. W. (L.K.) (1999), 138 C.C.C. (3d) 449 (Ont. C.A.) in which this court upheld a sentence of 18 and a half years imposed at trial.)

[67] In this case, the respondent occupied a position of trust when he perpetrated his abuse, and he perpetrated that abuse on a regular and persistent basis over a substantial period of time. Although this case does not involve anal intercourse -- an aggravating factor that leads to an increased sentence -- the absence of an aggravating factor does not translate into a mitigating factor. D. (D.) is not to be read as suggesting that full intercourse is required in order to raise the possibility of a double-digit sentence. Where intercourse occurs, it is simply one factor among many to be used to determine a fit sentence.

[68] Further, I do not accept that fellatio and digital penetration are somehow lesser forms of sexual abuse than intercourse. It is impossible to conclude that either is on this record.

[69] The sexual abuse in this case involved fondling, masturbation and fellatio, both forced on the victims and forced to be performed by the victims, in addition to digital penetration of three of the victims. It also involved the threat of physical violence and other forms of extortion. The harm caused by this abuse is not to be discounted because it involved sexual activity other than intercourse. The abuse did not involve penetration in every case, but it was no less invasive on that account -- no less a violation of the victims' sexual integrity -- and certainly no less harmful to the victims.

[70] In my view, and in light of the guidance from D. (D.), the magnitude and gravity of the respondent's offending requires a penitentiary sentence in the low to mid double digit range. Nothing less meets the need for denunciation and deterrence in these circumstances.

[71] The question then arises: is it appropriate to adjust the sentence in this case because the respondent committed the offences during a period in which he committed other offences for which he has already been punished?

[72] The answer is plainly no.

[73] The proportionality principle operates having regard to the circumstances of the offences for which an accused person is being sentenced. It is inappropriate to speculate as to the sentence the respondent would have received if all of his crimes committed during the relevant period had been before the court when he was sentenced in 1998: R. v. James, [2013] M.J. No. 48, 2013 MBCA 14, 288 Man. R. (2d) 269, at para. 56.

[74] The respondent avoided detection for much of his offending committed during the relevant period and so escaped punishment for that offending. He cannot now invoke his prior sentence, already served, in order to limit the sentence he receives for having committed the offences presently before the court, simply because these offences were committed during the same time frame: James, at para. 58.

[75] Nor is respondent's 1998 sentence to be treated as a mitigating factor in this case: R. v. Leroux, [2015] S.J. No. 231, 2015 SKCA 48, 460 Sask. R. 1, at para. 60. As the sentencing judge acknowledged, the prior sentence may be considered as part of the respondent's background and may be factually relevant to his prospects for rehabilitation, but the focus must remain on the offences currently before the court. The 1998 sentence is not to be considered as forming a part of, or mitigating, the sentence to be imposed.

The appropriate sentence

[76] Having determined that the sentencing judge imposed a demonstrably unfit sentence, it now falls to this court to fashion the appropriate sentence.

[77] As the sentencing judge recognized, many of the offences in this case would normally result in consecutive sentences. The offences were committed against separate victims, unconnected with each other in time or place. The only common thread was that they were victimized by the respondent, and joined on the same indictment.

[78] When consecutive sentences are imposed, the totality principle is designed to ensure that the imposition of consecutive sentences does not result in a total sentence that is unjust. The application of the principle was explained by this court in Jewell, at p. 279 C.C.C.:

In my view, the appropriate approach in cases such as the two under appeal is to, first, identify the gravamen of the conduct giving rise to all of the criminal offences. The trial judge should next determine the total sentence to be imposed. Having determined the appropriate total sentence, the trial judge should impose sentences with respect to each offence which result in that total sentence and which appropriately reflect the gravamen of the overall criminal conduct. In performing this function, the trial judge will have to consider not only the appropriate sentence for each offence, but whether in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed.

[79] Jewell has been applied consistently in this court. Recent examples include R. v. H. (J.), [2018] O.J. No. 1354, 2018 ONCA 245; R. v. Ahmed (2017), 136 O.R. (3d) 403, [2017] O.J. No. 384, 2017 ONCA 76; and R. v. B. (R.) (2013), 114 O.R. (3d) 465, [2013] O.J. No. 278, 2013 ONCA 36.

[80] By first identifying the gravamen of the entirety of the offending conduct, this approach aids in ensuring that the sentence is proportionate to the offending conduct and the offender before the court. The imposition of consecutive sentences should not lengthen the sentence imposed beyond what is just and appropriate: R. v. M. (C.A.), [1996] 1 S.C.R. 500, [1996] S.C.J. No. 28, at para. 42. At the same time, however, the offending conduct should not be viewed in a compartmentalized fashion that minimizes the interrelation of the crimes and the corresponding heightened gravity of the offences and moral blameworthiness of the offender: R. v. F. (D.G.) (2010), 98 O.R. (3d) 241, [2010] O.J. No. 127, 2010 ONCA 27, at paras. 26-27.

[81] In all of the circumstances, I would impose a global sentence of ten years' imprisonment. I emphasize that, absent the significant mitigating factors, including the respondent's guilty plea to most of the charges and the sentencing judge's findings concerning his rehabilitation, a lengthier sentence would be warranted.

[82] I would apportion the counts on the basis set out in Pepall J.A.'s concurring reasons.

Conclusion

[83] I would grant leave to appeal, allow the appeal, and impose a sentence of ten years' imprisonment. The respondent is entitled to six months' credit for the three years the respondent spent on restrictive bail, making an effective sentence of 9.5 years. The ancillary orders remain in place.

PEPALL J.A. (concurring):

Introduction

[84] As recently stated by the Supreme Court in R. v. Suter, [2018] 2 S.C.R. 496, [2018] S.C.J. No. 34, 2018 SCC 34, at para. 23, it is well established that appellate courts cannot interfere with sentencing decisions lightly. Sentencing is an individualized process that demands a deferential standard of appellate review. Appellate intervention is only permitted where the sentencing judge has committed an error in law or principle that impacted the sentence or otherwise imposed a sentence that was demonstrably unfit: R. v. Lacasse, [2015] 3 S.C.R. 1089, [2015] S.C.J. No. 64, 2015 SCC 64, at paras. 11, 44-46. Appellate review of a sentence is not simply an opportunity to substitute a second opinion for that of the sentencing judge. The court must be convinced that the sentence is not fit, that is, "that . . . the sentence [is] clearly unreasonable": R. v. M. (L.), [2008] 2 S.C.R. 163, [2008] S.C.J. No. 31, 2008 SCC 31, at para. 14. Moreover, deviation from a sentencing range does not in itself justify appellate intervention: Lacasse, at para. 67. On the other hand, as noted by Wagner J. (as he then was) in Lacasse, "[i]t is possible for a sentence to be demonstrably unfit even if the judge has made no error in imposing it": at para. 52.

[85] In this case, the sentencing judge gave considered reasons. In my view however, it is one of those rare instances where the resulting sentence was demonstrably unfit. In concluding that the sentence of six-and-a-half years is unfit, I focus on the sentencing judge's mischaracterization of the gravity of the respondent's offences and their scope, which in turn impugns the reasonableness of the sentencing judge's proportionality analysis.

Purport of a Demonstrably Unfit Sentence

[86] At paras. 52 to 53 of Lacasse, Wagner J. (as he then was) stated that a sentence would be demonstrably unfit if it constitutes an unreasonable departure from the proportionality principle which holds that a sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender":

[T]he courts have used a variety of expressions to describe a sentence that is "demonstrably unfit": "clearly unreasonable", "clearly or manifestly excessive", "clearly excessive or inadequate", or representing a "substantial and marked departure": R. v. Rezaie (1996), 31 O.R. (3d) 713 (C.A.), at p. 720. All these expressions reflect the very high threshold that applies to appellate courts when determining whether they should intervene after reviewing the fitness of a sentence.

This inquiry must be focused on the fundamental principle of proportionality stated in s. 718.1 of the Criminal Code, which provides that a sentence must be "proportionate to the gravity of the offence and the degree of responsibility of the offender". A sentence will therefore be demonstrably unfit if it constitutes an unreasonable departure from this principle. Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances. Individualization and parity of sentences must be reconciled for a sentence to be proportionate: s. 718.2 ( a ) and ( b ) of the Criminal Code.

[87] In addressing the principle of proportionality, this court in R. v. Hamilton (2004), 72 O.R. (3d) 1, [2004] O.J. No. 3252 (C.A.), at paras. 90-91, elaborated on the meaning of the "gravity of the offence" and the "degree of responsibility of the offender":

The "gravity of the offence" refers to the seriousness of the offence in a generic sense as reflected by the potential penalty imposed by Parliament and any specific features of the commission of the crime which may tend to increase or decrease the harm or risk of harm to the community occasioned by the offence . . . Some of the factors which increase the gravity of the offence are set out in s. 718.2 (a).

The "degree of responsibility of the offender" refers to the offender's culpability as reflected in the essential substantive elements of the offence -- especially the fault component -- and any specific aspects of the offender's conduct or background that tend to increase or decrease the offender's personal responsibility for the crime.

[88] Thus, the inquiry focuses on the gravity of the offence and the degree of responsibility of the offender both in a general sense based on the offences committed, and in relation to the specific features of the commission of those offences by the accused. There is also a need for comparison with other sentencing cases as proportionality is determined on both an individual basis and through a "comparison with sentences imposed for similar offences committed in similar circumstances": Lacasse, at para. 53.

Gravity of the Offences

A. Evolution in the approach to sentencing for sexual abuse of children

[89] My colleague, writing for the majority, has outlined the disturbing features of the commission of the offences in this case, including the respondent's pattern of exploitation and abuse of vulnerable young boys, and his assumption of positions of trust as a coach or teacher in order to gain access to these boys in their youth. I will not repeat those details here, except to note that the pattern of abuse perpetrated by the respondent spanned multiple decades and involved many, many victims, defenceless young boys who were groomed and promised gifts. In addressing the respondent's 1998 convictions for sexual abuse, Abella J.A. (as she then was) wrote, at para. 38, that these offences "were not unconnected, isolated acts of sexual or indecent assault, they were part of a systemic . . . pattern of unrelenting predatory and exploitative sexual conduct involving children".

[90] Society's understanding of the gravity of sexual offences and their impact on children has evolved considerably. Historically, Canadian courts often treated sexual offences against children as deserving of modest sentences. In the respondent's case, he was first convicted of sexually assaulting a young person while he was a teacher's assistant and received a two-month sentence in 1988. In 1996, he was convicted of one count of indecent assault and two counts of sexual assault against young persons and received 14 months. Perhaps the community at large was unaware of the negative impact of sexual abuse on the bodily integrity and self-worth of vulnerable young victims. Perhaps with a diet of murders and aggravated assaults, sexual offences against children seemed less important or reflective of misguided attitudes that suggested a "get over it" approach to victims. With R. v. D. (D.) (2002), 58 O.R. (3d) 788, [2002] O.J. No. 1061 (C.A.), this court opened the door to a fresh approach to sentencing for offences involving sexual abuse of children, and R. v. M. (D.) (2012), 111 O.R. (3d) 721, [2012] O.J. No. 3616, 2012 ONCA 520, pressed further. As my colleague Huscroft J.A. has written, the harm to children subjected to sexual abuse was described in 2011 by Moldaver J.A. (as he then was) in R. v. Woodward (2011), 107 O.R. (3d) 81, [2011] O.J. No. 4216, 2011 ONCA 610. As directed in that decision, the focus in sentencing adult sexual predators is on the harm caused to the child: at para. 76. This direction was amplified by subsequent legislative initiatives on sentencing for offences involving sexual exploitation and abuse against children undertaken by Parliament and which I will address.

[91] However, before turning to a discussion of these changes, it is important to note that the offences in this case were committed between 1965 and 1985. The statutory provisions that govern charges against an accused are those in effect at the time the offence was committed. This raises the issue of the appropriate sentencing principles applicable to determining the fitness of the sentence imposed here.

B. Principles governing sentencing of historic offences

[92] In this case, the respondent was charged with 43 counts of indecent assault on a male; 49 counts of gross indecency; two counts of buggery; and ten counts of sexual assault. Indecent assault, gross indecency and buggery are historic sexual offences which have since been repealed from the Criminal Code. The respondent was convicted of all counts except for the two buggery offences. For his conviction on these 102 counts against 18 boys ages eight to 13, he received a six-and-a-half year sentence less six months' pre-sentence credit for a net sentence of six years. The offences against each victim attracted convictions for both indecent assault and gross indecency, or sexual assault and gross indecency. The sentencing judge did not detail which acts anchored the convictions.

[93] Appellate jurisprudence from across the country directs that an accused should be sentenced "in accordance with the provisions of the Criminal Code and the case law in effect at the time of the sentencing unless they [are] inconsistent with statutory provisions to the accused's benefit" such as maximum penalties set out in the Criminal Code: R. v. Fones, [2012] M.J. No. 407, 2012 MBCA 110, 288 Man. R. (2d) 86, at para. 60; R. v. Paradis, [1991] N.J. No. 215, 92 Nfld. & P.E.I.R. 271 (C.A.), at paras. 10-11; R. v. L. (L.), [2016] Q.J. No. 11113, 2016 QCCA 1367, at paras. 149-151, leave to appeal to S.C.C. refused, 2018 CarswellQue 6151. The Newfoundland Court of Appeal explained the reasoning for this approach in Paradis, at para. 11:

Regard must be had to the offender, to the offence and to the interests of society, at the time of sentencing. It is only at the time of sentencing . . . that the elements of general and individual deterrence, punishment, and rehabilitation, and the degree to which any or all should be applied, can be considered in arriving at a fit sentence.

[94] Criminal laws generally do not operate retrospectively, and an accused is entitled to the benefit of a lesser punishment if the legislated punishment for an offence has changed between the time of the commission of the offence and the time of sentencing: R. v. J. (K.R.), [2016] 1 S.C.R. 906, [2016] S.C.J. No. 31, 2016 SCC 31, at para. 22; R. v. S. (R.), [2015] O.J. No. 2183, 2015 ONCA 291, 334 O.A.C. 239, at para. 21.

[95] A consideration of the seriousness of the offences requires the court to look to the potential penalty imposed by Parliament. In order to determine the legislative parameters governing the sentencing of the respondent in this case, it is necessary to review the historical sexual offences with which the respondent was charged.

(1) Indecent assault

[96] When the respondent committed the offence of indecent assault, it was a gendered offence, split into two provisions -- one governing indecent assault on a male and the other governing indecent assault on a female. The Criminal Code provision governing the offence of indecent assault on a male during the relevant time stated:

Every male person who assaults another person with intent to commit buggery or who indecently assaults another male person is guilty of an indictable offence and is liable to imprisonment for ten years and to be whipped.

The provision was amended in 1972 to remove the words "and to be whipped": Criminal Law Amendment Act, 1972, S.C. 1972, c. 13, s. 70. The term "indecency" was not defined in the Criminal Code, but indecent assault was understood to be "an assault, accompanied with circumstances of indecency": Hamish C. Stewart, Sexual Offences in Canadian Law, looseleaf (Aurora: Canada Law Book, 2004), at 2:300.20.30. Thus, an assault committed "as part of an attempt to . . . force a man to submit to an indecent act would be an indecent assault, and assault involving specific sexual acts might be found to be indecent": Stewart, at 2:300.20.30. The offence of indecent assault was repealed in 1983.

[97] Of the 43 counts of indecent assault, 37 would have been subject to a maximum penalty of ten years' imprisonment and six would have been subject to ten years' imprisonment plus whipping at the time they were committed.

(2) Gross indecency

[98] The Criminal Code provision governing the offence of gross indecency when the respondent committed the 49 offences stated:

Every one who commits an act of gross indecency with another person is guilty of an indictable offence and is liable to imprisonment for five years.

An act of gross indecency was an act which constituted "a marked departure from decent conduct expected of the average Canadian in the circumstances that existed": R. v. Quesnel, [1979] O.J. No. 1166, 51 C.C.C. (2d) 270 (C.A.), at p. 280 C.C.C. An act could be deemed to be grossly indecent by the nature of the act itself, or the circumstances in which the act was committed. Some cases held that certain acts such as buggery, fellatio and cunnilingus were per se grossly indecent regardless of the circumstances: Stewart, at 2:500.10.10. Other acts that were not grossly indecent "in themselves, could become so depending on the circumstances", for example, if they involved a child: Stewart, at 2:500.10.10. The offence of gross indecency was repealed in 1988.

(3) Buggery

[99] When the events took place, the offence of buggery was an indictable offence with a maximum term of imprisonment of 14 years. The Criminal Code did not contain a definition of buggery, but it was defined at common law as "sexual intercourse per anum with another person" or, in other words, anal intercourse: Stewart, at 5.300.10, citing R. v. Ross, [1986] N.W.T.J. No. 3 (S.C.). "Sexual intercourse" was defined, and continues to be defined in s. 4(5) of the Criminal Code, as follows: "For the purposes of this Act, sexual intercourse is complete on penetration to even the slightest degree, notwithstanding that seed is not emitted."

[100] The offence of buggery was repealed and replaced with the offence of "anal intercourse" in 1987. Although the offence of anal intercourse is still enumerated in s. 159 the Criminal Code, the provision was struck down by this court as violating s. 15 of the Canadian Charter of Rights and Freedoms in 1995: R. v. M. (C.) (1995), 23 O.R. (3d) 629, [1995] O.J. No. 1432 (C.A.).

(4) Sexual assault

[101] In addition to the historic sexual offences of indecent assault, gross indecency and buggery, the respondent was convicted of ten counts of sexual assault for incidents that occurred after 1983. The offence of sexual assault was enacted in 1983 and replaced the offences of rape, indecent assault on a female and indecent assault on a male which were repealed by the same amendment to the Criminal Code. The offence of sexual assault removed distinctions based on the gender of the accused and the complainant, and the presence or absence of sexual intercourse, and characterized sexual offences as a form of assault: Stewart, at 3.100; R. v. Cuerrier, [1998] 2 S.C.R. 371, [1998] S.C.J. No. 64, at paras. 10-12, per L'Heureux-Dubé J. At the time the respondent committed the offences, the maximum sentence for sexual assault was ten years for conviction on indictment.

(5) Conclusion

[102] The foregoing review illustrates that two aspects of the Criminal Code regime in effect at the time of the respondent's commission of the offences had to inform the analysis of a fit sentence. First, the statutory maximum sentence for the offences of indecent assault on a male and gross indecency were ten years (plus whipping for six of the 43 counts) and five years respectively, and ten years for sexual assault. Second, prior to 1983, the Criminal Code made a distinction between sexual offences involving "sexual intercourse" and sexual offences involving other sexual acts. Offences involving sexual intercourse, being rape and buggery, carried higher maximum terms of life imprisonment and 14 years respectively, suggesting that Parliament viewed these offences as more serious in nature. Sexual acts not involving "sexual intercourse" fell within the offences of indecent assault and gross indecency. As I will discuss, contemporary appreciation of the harm occasioned by sexual offences suggests that the seriousness of the offence should not be wed to the presence or absence of "sexual intercourse". However, this distinction was made in the Criminal Code at the time the respondent committed the offences of indecent assault and gross indecency, and accordingly the respondent is entitled to the benefit of this distinction in determining the gravity of his offences along with the benefit of lesser maximums than currently exist. However, this does not serve to take the respondent's conduct out of the higher range of these maximums. Put differently, the seriousness of the respondent's conduct is not erased simply due to the absence of sexual intercourse. Although more recent legislative initiatives do not govern the respondent's sentencing, regard may nonetheless be had to the enhanced concern for the sexual abuse of children and the need for emphasis on denunciation and deterrence.

C. Legislative changes to sentencing for the sexual abuse of children

[103] The evolution of Parliament's and thus Canadians' view of the gravity of offences involving the sexual exploitation and abuse of children can be ascertained from Parliament's treatment of sentencing principles and ranges applicable to these sexual offences. Since 2005, Parliament has advanced a number of legislative changes to the sentencing principles applicable to sexual offences against children.

[104] In 2005, Bill C-2, entitled An Act to Amend the Criminal Code (Protection of Children and Other Vulnerable Persons), S.C. 2005, c. 32, was enacted to "protect children and other vulnerable persons from sexual exploitation, violence, abuse and neglect": "Legislative Summary -- Bill C-2: An Act to amend the Criminal Code (protection of children and other vulnerable persons) and the Canada Evidence Act" (Parliamentary Information and Research Services, October 2004), at p. 1. Bill C-2 added mandatory minimum penalties, and increased the maximum penalty for certain sexual offences against children. The Bill also amended the "Purpose and Principles of Sentencing" portion of the Criminal Code by making abuse of a person under the age of 18 an aggravating factor, and directing courts to give primary consideration to the objectives of denunciation and deterrence in sentencing for offences involving abuse of a person under the age of 18: see Criminal Code, ss. 718.01, 718.2 ( a )(ii.1).

[105] The significance of these amendments was discussed by Saunders J.A. of the British Columbia Court of Appeal in R. v. W. (D.R.), [2012] B.C.J. No. 2646, 2012 BCCA 454, 330 B.C.A.C. 18, at paras. 32-34:

It would be fair, I think, to describe s. 718.01 and the other augmented provisions for offences concerning abuse of children as an attempt by Parliament to re-set the approach of the criminal justice system to offences against children.

I recognize that there are many clear examples in cases pre-dating the Act that responded firmly to offences against young people . . . but there has been significant legislative action, all to the emphasis of protection of young people . . .

With these observations, I would say that the range of sentences drawn from a former era may not reflect the appropriate balance of principles now required by the Criminal Code.

[106] In 2012, Parliament increased the mandatory minimum sentences introduced by Bill C-2 for sexual offences involving children through Bill C-10, known as the Safe Streets and Communities Act, S.C. 2012, c. 1. The mandatory minimum penalties for ss. 151 (sexual interference of a person under the age of 16), 152 (invitation to sexual touching of a person under the age of 16) and 153 (sexual exploitation of a young person) were increased from 14 days to 90 days on summary conviction, and from 45 days to one year for conviction on indictment.

[107] In 2015, Parliament then increased the maximum sentence for these offences from ten years to 14 years through Bill C-26: Tougher Penalties for Child Predators Act, S.C. 2015, c. 23. Bill C-26 also introduced s. 718.3(7) which requires the court to impose a consecutive sentence where an offender is sentenced at the same time for a child pornography offence and another sexual offence committed against the same child; or, as would be the case here but for the dates of the offences, where the offender is sentenced at the same time for sexual offences other than child pornography offences committed against more than one child. Section 718.3(7) is still subject to the totality principle set out in s. 718.2(c): see R. v. C. (S.) (2019), 145 O.R. (3d) 711, [2019] O.J. No. 1286, 2019 ONCA 199, at para. 12.

[108] The current 14-year maximum penalty for sexual offences against children certainly exceeds the maximum penalty of ten years for indecent assault against a male that is applicable to the respondent's offences. As mentioned, recourse to new statutory maximums is unhelpful insofar as the appropriate sentence is guided by the maximum penalties in effect at the time of the commission of the offences. However, as noted by this court in R. v. Sanatkar, [1981] O.J. No. 137, 64 C.C.C. (2d) 325 (C.A.), at p. 327 C.C.C., the maximum penalty provided for an offence is an important indicator of the gravity of an offence. The Alberta Court of Appeal stated in R. v. King, [2013] A.J. No. 3, 2013 ABCA 3, 542 A.R. 43, at para. 20, that although changes set out in the Criminal Code for sexual offences involving children cannot be applied retrospectively, the court "need not be oblivious to what [the changes] suggest about Parliament's view of the gravity of such offences" (emphasis added).

[109] This principle is illustrated in this court's decision in Woodward. There, the appellant was sentenced to six-and-a-half years' imprisonment for child luring and a single incident of sexual abuse involving fellatio and vaginal intercourse with a 12-year-old in December 2008. The offences were committed in September 2006. The appellant argued that the sentence imposed was unfit and that a range of 12 months to 24 months for the offence of child luring had been established in this court's decision in R. v. Jarvis, [2006] O.J. No. 3241, 214 O.A.C. 189 (C.A.). Moldaver J.A. (as he then was) rejected this submission and noted, at para. 58, that even if Jarvis did purport to set a range of 12 to 24 months for the offence of luring, that range needed to be revised given the 2007 amendment to the Criminal Code in which Parliament doubled the maximum punishment for the offence from five to ten years.

[110] In R. v. S. (J.) (2018), 142 O.R. (3d) 81, [2018] O.J. No. 4095, 2018 ONCA 675, Strathy C.J.O. considered the fitness of a sentence imposed for offences involving sexual abuse of young children and child pornography. In considering the relevant sentencing principles, Strathy C.J.O. discussed the significance of the 2015 amendments to the Criminal Code including the amendment introducing s. 718.3(7) which requires sentences for certain offences against children to be served consecutively. He stated, at paras. 96, 98: "Moreover, although the provision was not in effect at the time of the offences, it is appropriate to note that the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, increased mandatory minimum and maximum sentences for certain sexual offences against children . . . Parliament's concern is reflected in increasing judicial concern about the sexual abuse of children" (emphasis added).

[111] In a similar vein, the Alberta Court of Appeal considered the significance of Parliament's increase of penalties for offences involving sexual abuse of children stating in R. v. B. (E.J.), [2018] A.J. No. 911, 2018 ABCA 239, 72 Alta. L.R. (6th) 29, at para. 40, leave to appeal to S.C.C. refused [2018] S.C.C.A. No. 441: "The changes reflect both Parliament's and society's recognition that people who use positions of trust, authority or dependency to sexually exploit a young person should be subject to serious penalties." See, also, R. v. Norton, [2016] M.J. No. 235, 2016 MBCA 79, 330 Man. R. (2d) 261, at paras. 18-25; R. v. Rayo, [2018] Q.J. No. 4202, 2018 QCCA 824, at para. 125; R. v. S. (P.E.), [2018] M.J. No. 305, 2018 MBCA 124, 368 C.C.C. (3d) 500, at paras. 58-61.

[112] As the foregoing review of Parliament's legislative initiatives and appellate jurisprudence from across the country suggests, there has been significant recognition of the impact of sexual abuse on a child, particularly when that abuse is perpetrated by a person in a position of trust or authority. Parliament's legislative reforms governing sexual offences signal that society's denunciation of this conduct must be reflected in the sentences imposed by courts. These legislative amendments, while not applicable to the offences committed by the respondent, indicate a significant societal recognition of the gravity of sexual offences against children. This recognition is not an alteration of weight to be assigned to a factor, or justification for imposing a higher sentence than is fit in the circumstances. Understanding the gravity of the offences in a general sense is an important aspect of imposing a proportionate sentence. It serves to contextualize the seriousness of the offences and recognizes that sentencing should not be divorced from a contemporary understanding of the harm occasioned by the offences. The legislative amendments are not a standalone justification for imposing a higher sentence, nor do I rely on them for that purpose. As mentioned, they simply reflect society's better understanding of harm caused by these offences to victims and the community, and the need to address this harm in the sentencing process as argued by the Crown.

D. Sentencing judge's treatment of the gravity of the offence

[113] Turning to the sentencing judge's reasons in this case, the sentences attributed by the sentencing judge to each grouping of victims and her treatment of the number of victims abused by the respondent are indicative of her characterization of the gravity of the offence. In my view, they demonstrate that she failed to adequately capture the gravity and scope of the offences committed by the respondent, and as a result, she imposed an unfit sentence.

[114] I do not propose to review the sentencing judge's reasons which have already been described in my colleague's reasons. I will limit my discussion to her sentencing allocations and her treatment of the number of victims.

[115] In determining the appropriate sentence in this case, the sentencing judge reviewed the range of sentences imposed by courts for sexual offences against children, including the principles enunciated in the 2002 decision of this court in D. (D.). The sentencing judge summarized her review of the principles articulated in the case law, at para. 107 of her reasons:

It is my view, that what can be gleaned from this case law is that for sexual assaults on children that are limited to fondling and don't take place persistently over long periods of time lower sentences in the range of 2-3 years seem to be appropriate. As the level of sexual abuse, the number of victims and the number of incidents of abuse increases, the sentences increase up to double digits for the more egregious and persistent acts of abuse. In many of the cases I have reviewed, the acts of violence were worse and the sexual abuse included acts of anal intercourse. While in almost all the cases there were fewer victims, the number of individual acts of abuse tend to be quite similar to the number of acts of abuse in the case at bar because in many of the cases, each victim was abused more frequently and for longer periods of time than Mr Stuckless' victims. These differences, in some respects are not that meaningful. At the end of the day all the cases reviewed had key facts in common which include:

a) breach of trust; b) prolonged and persistent sexual abuse; c) on young children; and d) with profound effects on the victims.

[116] The sentencing judge then determined the sentence that she could have imposed for the offences per victim, and then considered the impact, if any, of the totality principle. In doing so, the sentencing judge grouped the victims based on the type of sexual contact, and the frequency and duration of the abuse that they suffered. The sentencing judge's allocations, at paras. 109-114, were as follows:

For the offences involving M.S. which included forced digital penetration and prolonged sexual abuse on him a sentence in the range of 4 years would have been appropriate.

For the offences on L.F. which included forced digital penetration and prolonged sexual abuse a sentence in the range of 4 years would be appropriate.

For the offences on T.J. and J.S. that also involved digital penetration or attempted digital penetration but included only a couple of other incidents of sexual assault, a sentence in the range of 3 to 4 years would have been appropriate.

For the offences on K.D., R.C., D.B., K.M., G.P., S.L., B.B. and S.K. given the number of incidents involved with each victim and the nature of the sexual abuse, a sentence in the range of [2] years for each victim would be appropriate.

For the offences on KP and SF here the sexual acts were limited to sexual touching but involved in excess of 20 incidents per child a sentence in the range of [2 to 3] years per victim would have been appropriate.

For the offences on JD, PS, CM and SM which included between one and six acts of fellatio on each victim, a sentence in the range of [1 to 2] years would have been appropriate for each victim.

[117] The description of the acts perpetrated on these boys omitted important details. For instance, both M.S. and L.F. were also subjected to fellatio on a number of occasions, and when the respondent penetrated them, both screamed in pain and begged the respondent to stop without success. With victim K.P., the respondent sexually abused him over 20 times over 18 months and threatened to run him over with a car (though K.P. did not believe he would follow through with the threat). Moreover, many of the convictions involved fellatio or attempted fellatio. The offences against T.J. involved attempted fellatio, and both J.S. and S.F. were subjected to fellatio in addition to the abuse summarized by the sentencing judge. S.F. estimated that the respondent abused him between 25-75 times. K.D. was abused by the respondent in his own home on at least four occasions when the respondent put K.D. to bed. The offences against both S.K. and K.M. occurred when the respondent was a teaching assistant, and the respondent took advantage of his position at the school to falsely accuse the boys of wrongdoing to hold them back after school and sexually abuse them.

[118] The sentencing judge determined that if each of the sentences outlined above were to be imposed consecutively, it would amount to a sentence of more than 30 years. Such a sentence would be excessive and outside the range identified in the case law. The sentencing judge determined that a sentence of six-and-a-half years ought to be imposed in light of the totality principle: at para. 121. Although not fatal in this case, I do note that the sentencing judge did not apply the totality principle in the manner set out in R. v. Jewell, [1995] O.J. No. 2213, 100 C.C.C. (3d) 270 (C.A.).

[119] As I will describe, this sentence was not proportionate to the gravity of the respondent's offences, their scope and the respondent's degree of responsibility. This is a manifestly unfit sentence, a sentence that is unresponsive to the call for exemplary sentences in cases involving prolonged sexual abuse of multiple victims, and that serves to erode public confidence in our system of justice.

E. Analysis

(a) Sentences allocated based on sexual acts

[120] As Rowe J. observed in R. v. Jarvis, [2019] S.C.J. No. 10, 2019 SCC 10, 52 C.R. (7th) 62, at paras. 124-125, there is extensive jurisprudence from the Supreme Court that defines sexual offences in terms of the violation of one's autonomy and sexual integrity. It is well settled that "sexual assault" is described as an assault "committed in circumstances of a sexual nature, such that the sexual integrity of the victim is violated": R. v. Chase, [1987] 2 S.C.R. 293, [1987] S.C.J. No. 57, at p. 302 S.C.R. Rowe J. observed that the interests of personal autonomy, physical integrity and dignity protected by the criminalization of sexual offences "represent a shift in the conception of sexual offences away from sexual propriety and towards a focus on sexual integrity": at para. 127. In discussing this shift in emphasis, Rowe J. quoted from Professor Elaine Craig, Troubling Sex: Towards a Legal Theory of Sexual Integrity (Vancouver/Toronto: UBC Press, 2012), at p. 68:

[T]his shift from focusing on sexual propriety to sexual integrity enables greater emphasis on violations of trust, humiliation, objectification, exploitation, shame, and loss of self-esteem rather than simply, or only, on deprivations of honour, chastity, or bodily integrity (as was more the case when the law's concern had a greater focus on sexual propriety).

[121] The necessity of focusing on sexual integrity over sexual propriety in the context of sexual abuse of children is evident in the case law which affirms that the gravity or seriousness of the abuse does not turn solely on whether there is penetration or not. In R. v. Leroux, [2015] S.J. No. 231, 2015 SKCA 48, 460 Sask. R. 1, the 74-year-old accused was convicted of eight counts of indecent assault, and two counts of gross indecency for abuse against eight complainants. The Saskatchewan Court of Appeal found that the sentencing judge had erred in principle by concluding that a "major sexual assault" is one that involves penetration, and dividing the offences committed by the accused into two classes -- major sexual assaults involving penetration, and assaults that did not involve penetration. The court stated, at para. 67:

[W]hen it comes to the sustained sexual abuse of a child, the absence of penetration cannot be said to discount the seriousness of the offence. Rather, the absence of penetration is a circumstance that must be considered when determining the seriousness of the offence in question, along with all of the other circumstances, including the age of the victim, the physical and psychological harm done to the victim, the duration of the abuse, the nature of the abuse, the abuser's position with respect to the victim, etc.

[122] Similarly, in R. v. Stuckless (1998), 41 O.R. (3d) 103, [1998] O.J. No. 3177 (C.A.) ("Stuckless 1998"), Abella J.A. stated, at para. 42: "The absence of penetration does not automatically relegate the sexual abuse of children to the 'lower range' of sexual offences. . . . These offences were, individually and collectively, unconscionable. Any characterization which purports to diminish their magnitude, is unacceptable." Leroux and Stuckless 1998 instruct that while penetration is certainly an aggravating factor and must be considered when sentencing an offender, the seriousness of the offence does not turn on the presence or absence of penetration. The court must look beyond the nature of the physical acts themselves to the interests protected by the criminalization of sexual offences, and the circumstances in which the offences were committed.

[123] The approach the sentencing judge adopted in determining the appropriate sentence was to classify the offences based on the nature of the sexual act. In describing the aggravating factors, at para. 71(h), the sentencing judge stated that "[a]ll of Mr. Stuckless' offences were invasive and escalated with some victims from sexual touching to forced fellatio to digital penetration". While this suggests that the sentencing judge recognized that forced fellatio and digital penetration are more invasive than sexual touching, her reasons disclose that the nature of the sexual contact dominated her consideration of the gravity of the offences, and the appropriate sentence to allocate for the abuse of each victim.

[124] While physically different, digital penetration and fellatio constitute a serious invasion of the sexual integrity of the victim. Put differently, if sentencing courts are to focus on the "harm caused to the child by the offender's conduct" as Moldaver J.A. (as he then was) instructs in Woodward, at para. 76, distinctions among these forms of sexual abuse may be unhelpful and are not determinative of the seriousness of the offence. Is fellatio any less intrusive than digital penetration? Surely not.

[125] Indeed, the factual circumstances of this case underscore the point that the impact on the physical and psychological integrity of the victims is often no different simply because the penetration is found to be digital rather than penile. As the sentencing judge noted in her reasons, while it was unclear whether the respondent penetrated Mr. F. and M.S. with his penis or finger, both victims cried out in pain, asked the respondent to stop, and the respondent nevertheless persisted: at paras. 29-30. In these circumstances, where the line between a conviction for buggery versus indecent assault was drawn based only on the fact that the victims were unable to see what part of the respondent's body was being used to penetrate them against their will, it is difficult to conceive how digital penetration was a lesser violation of their bodily integrity than penile penetration. Even accepting that the punishment was lower in light of the differing maximums for indecent assault and buggery, a four-year sentence for Mr. F. and M.S. and a global six-and-a-half year sentence would be demonstrably unfit.

[126] As I have noted, at the time of the commission of the offences, the Criminal Code distinguished between sexual offences involving "sexual intercourse", and those that did not. The respondent is entitled to the benefit of this statutory distinction. However, in light of the legislated sentencing parameters and the necessary focus on harm to the child, the gravity of the offences before the court should not be reduced to the low to medium spectrum of indecent assault, which carried a maximum of ten years (and in some cases whipping) per count, due to the absence of anal intercourse, which carried a maximum of 14 years per count. Given the separate offence of buggery, the respondent's conduct would clearly fall at the serious end of the offence of indecent assault.

[127] It is unquestionable that the respondent's conduct constituted a serious invasion of the sexual integrity of his victims. Even within the sentencing parameters circumscribing the offence of indecent assault of a male, when viewed in the context of the circumstances of the commission of the offences, the gravity or seriousness of the abuse perpetrated by the respondent was significant.

[128] The emphasis placed by the sentencing judge on the physical acts rather than the sexual integrity of the victims is evident from the sentences she determined would be appropriate for the different groupings of victims. To reiterate, the sentencing judge attributed four years to offences against the victims that involved forced digital penetration and prolonged sexual abuse; three to four years for offences involving digital penetration or attempted digital penetration, along with other incidents of abuse; and one to two years for between one to six acts of fellatio.

[129] The sentencing judge's conclusion not only draws an unjustifiable distinction between digital penetration and fellatio but also contradicts her summary that "for sexual assaults on children that are limited to fondling and don't take place persistently over long periods of time lower sentences in the range of 2-3 years seem to be appropriate": para. 107. While a deviation from sentencing ranges alone is not a basis upon which to disturb a sentence on appeal, in this case the sentences attributed to each grouping of victims illuminates the sentencing judge's view of the gravity of the offences. Implicitly she found that the abuse involving one to six acts of fellatio fell below the level of sentence appropriate for fondling, and the abuse involving digital penetration was only slightly above the low range of sentence she identified for fondling.

[130] In my view, she unreasonably underestimated the gravity of the respondent's offences. In R. v. M. (D.), this court elaborated on the principles set out in D. (D.) and Woodward. Feldman J.A. noted, at para. 36, that while D. (D.) involved multiple child victims (four to be exact), the principles enunciated in D. (D.) have been and should be applied in cases involving a single child:

Second, and most importantly, while the court in D.D. set specific ranges for categories of cases described by the court that were similar to the facts in D.D., Moldaver J.A. also made two things clear: 1) ranges of sentence are only guidelines; they leave trial judges with the flexibility "to do justice in individual cases." (para. 33); 2) for conduct where an adult in a position of trust sexually abuses children on a consistent basis and over an extended period of time, a higher range of sentence is called for. Depending on the specific facts, a penitentiary sentence, ranging from upper single digit to low double digit or beyond is appropriate. Although Moldaver J.A. referred to "children" in the plural, it is the conduct that is aimed at; while the number of victims will be a factor, the instruction from D.D. does not become inapplicable where there is only one victim.

[131] Further still, D. (D.) was decided in 2002, well before Parliament's amendments to the Criminal Code between 2005 and 2015. As has been acknowledged by this court, and other appellate courts across Canada, sexual offences against children must be interpreted in the context of these amendments and what they signal about the gravity of the offence. The sentence imposed by the sentencing judge fails to capture the seriousness of the offences generally, and the circumstances in which the respondent committed them. These offences were not isolated acts, rather they were part of a systemic pattern of abuse and exploitation. The respondent's pattern of abuse involved building a relationship of trust with his victims by taking on positions as a teacher or hockey coach. He often targeted children of single parents or children who were experiencing difficulty in their homes. He would groom his victims and then subject them to all manner of sexual abuse, sometimes with threats of violence, leaving his victims with feelings of fear and shame that prevented them from reporting the abuse. It bears emphasis that the respondent was convicted of over 100 counts of sexual offences against 18 different children.

[132] This brings me to my next point -- the sentencing judge's treatment of the number of victims.

(b) Treatment of the number of victims

[133] In setting out the aggravating factors, the sentencing judge made mention, at para. 71(j), that the respondent had numerous victims. However, most of the cases reviewed by the sentencing judge involved far fewer victims. The sentencing judge reconciled this issue, at para. 107, by stating: "While in almost all the cases there were fewer victims, the number of individual acts of abuse tend to be quite similar to the number of acts of abuse in the case at bar because in many of the cases, each victim was abused more frequently and for longer periods of time than Mr. Stuckless' victims."

[134] Frequency and duration of abuse are important factors to consider in attempting to achieve parity in sentencing. However, by minimizing the significance of the number of victims, the sentencing judge failed to appreciate the depth of harm occasioned on both the victims and the community by the respondent's conduct.

[135] In this case, the number of victims is a factor that responds to the principles of denunciation, deterrence and proportionality. An offender's assault of a large number of victims should neither be treated as less morally blameworthy or equally as blameworthy as an offender who assaults fewer victims more frequently. The gravity of the harm imposed by the respondent's conduct cannot be diminished because there are fewer instances of abuse per victim such that it can be equated to cases involving fewer victims but more incidents. The shortcoming in the sentencing judge's analysis is reflected in her summary of the victim impact. The impact on the victims was not reduced due to the number of assaults they experienced. Sentencing in child sexual abuse cases must focus on the harm occasioned on each of the victims. As this court noted in Woodward, at para. 72, the consequences of child sexual abuse are now well-recognized:

(i) children often suffer immediate physical and psychological harm; (ii) children who have been sexually abused may never be able, as an adult, to form a loving, caring relationship with another adult; (iii) and children who have been sexually abused are prone to become abusers themselves when they reach adulthood.

Pre-sentence reports involving child sex offenders frequently provide a testament to this last point.

[136] As is evident from the victim impact in this case, even one instance of sexual abuse can permanently alter the course of a child's life. The gravity of this harm cannot and should not be overlooked in sentencing offenders who abuse multiple children. Indeed, although inapplicable to this case, Parliament has recognized this with the 2015 legislative amendments requiring the imposition of consecutive sentences in cases involving sexual offences against more than one child.

[137] The sentencing judge mischaracterized the gravity of the offence due to her emphasis on the physical act perpetrated on the victims by the respondent and by her conflation of the number of incidents with the number of victims in her consideration of proportionality. This contributed to her imposition of an unfit sentence. Proportionality requires the court to place both the gravity of the offence and degree of responsibility of the offender at the centre of the sentencing process. Indeed, Wagner J. in Lacasse described proportionality as the "cardinal principle" of sentencing. Here, the sentencing judge failure to appropriately capture the gravity of the offence, it follows that the sentence imposed cannot reasonably be said to be proportionate. The sentence of six-and-a-half years imposed in this case failed to effectively capture the gravity of the respondent's offences and thus was manifestly unfit.

A Fit Sentence

[138] This brings me to what would be a fit sentence.

[139] I readily recognize that although the respondent's actuarial risk of reoffending was described as moderate to high, the sentencing judge agreed with Dr. Pearce that the respondent posed no real risk to reoffend and that he had been taking the drug Lupron.

[140] Considering the sentencing judge's findings relating to the respondent's rehabilitation and remorse, his age, the position of trust he held, the harm he perpetrated on the 18 young boys, aged eight to 13, the other aggravating and mitigating factors identified by the sentencing judge, and the maximum punishment applicable to these historical offences that serves to moderate the available sentence, I am of the view that a global sentence of ten years less six months for pre-sentence credit on account of house arrest for a net sentence of nine-and-a-half years is a fit sentence in all the circumstances.

[141] Turning to the cases that the sentencing judge identified as comparable, this sentence is somewhat higher than the sentence of eight years imposed in Leroux on an offender who had abused eight young boys while working as a dormitory supervisor at a residential school. Leroux was also a case involving historic sexual abuse and sexual offences of indecent assault and gross indecency. While Leroux involved some aggravating factors not present in this case, it also involved many fewer victims. Similarly, the case of R. v. James, [2013] M.J. No. 48, 2013 MBCA 14, 288 Man. R. (2d) 269, in which a hockey coach was sentenced to five years for prolonged abuse of two young boys also involved fewer victims. In considering James, the sentencing judge rightly concluded that a sentence of five years would not properly reflect the extent of the harm caused by the respondent in this case and the number of victims he abused.

[142] Having determined that ten years is a fit global sentence, I must assign sentences for each offence. Here, the goal is to impose sentences with respect to each offence which result in the ten-year sentence and "which appropriately reflect the gravamen of the overall criminal conduct": Jewell, at p. 279 C.C.C. In imposing sentences for each offence, a court must "consider not only the appropriate sentence for each offence, but whether in light of totality concerns, a particular sentence should be consecutive or concurrent to the other sentences imposed": at p. 279 C.C.C. Thus, the sentence allocations per offence are bounded by the applicable statutory maximums I have described, and the totality principle. The totality principle serves to ensure that a combined sentence is not unduly long or harsh, and the total sentence imposed on an offender who commits multiple offences is just and appropriate: R. v. Johnson, [2012] O.J. No. 2255, 2012 ONCA 339, 285 C.C.C. (3d) 120, at paras. 17-19.

[143] Many of the sentences in this case could be imposed consecutively given that the offences against each victim are distinct and may be viewed as separate events. However, in light of the totality principle and my earlier analysis, I would assign the following sentences to run concurrently:

-- for the offences of indecent assault against M.S. and Mr. F., victims subjected to digital penetration and/or fellatio, and additional violence over and above that which is inherent in sexual offences against children, sentences of eight years and for the offences of gross indecency against them, sentences of four years;

-- for the offences of indecent assault against T.J., S.F., J.D., P.S., C.B., S.M., J.S. and the offences of sexual assault against C.B., victims subjected to abuse, sometimes prolonged abuse, and digital penetration and/or fellatio but no additional violence, sentences of seven years, and for the offences of gross indecency against them, sentences of four years;

-- for the offences of indecent assault against K.P., who was subjected to prolonged abuse and threats, a sentence of six-and-a-half years, and for the offences of gross indecency against him, a sentence of four years;

-- for the offences of indecent assault against R.C., who was subjected to prolonged abuse, a sentence of six years and for the offences of gross indecency against him, a sentence of four years; and

-- for the offences of indecent assault against K.D., D.B., B.B. and S.K. and the offences of sexual assault against K.M., B.B. and S.K., victims subjected to inappropriate touching and/or masturbation by the respondent, sentences of four years, and for the offences of gross indecency against them, sentences of four years.

[144] I would then assign the following sentences to run concurrently to each other within this group but, as a group, to run consecutively to the sentences imposed above:

-- for the offences of indecent assault against S.L. and the offences of sexual assault against G.P., victims subjected to fondling by the respondent, I would impose sentences of two years, and for the offences of gross indecency against them, sentences of one year.

[145] This apportionment results in a global sentence of ten years (i.e., eight years for the first group of offences plus two years for the second group of offences) and a net sentence of nine-and-a-half years after deduction for pre-sentence credit. This is an apportionment in the context of the global sentence appropriate in this case. It is not to be taken as indicative of the appropriate sentence for any of the counts on an individual basis.

Disposition

[146] For these reasons, I would grant leave to appeal and allow the appeal of sentence.

[147] The conduct of the respondent called for an exemplary sentence. However, the sentence that was imposed on him was neither just nor appropriate, and certainly not exemplary. I am not the first to say that offenders must understand that sexual abuse of children cannot be countenanced and I will not be the last. But, an exemplary sentence may at least go some way to serve to deter others from embarking on vulturine predacious conduct comparable to that pursued by the respondent.

ROULEAU J.A. (dissenting):

Overview

[148] This appeal raises only one issue: whether the sentence imposed on Mr. Stuckless was demonstrably unfit, such that it warrants appellate intervention. As my colleagues explain in their reasons, the circumstances in which an appellate court may vary a sentence are narrow. Absent an error of law or an error in principle that had an impact on the sentence, intervention from this court will only be justified if the sentencing judge imposed a sentence that is demonstrably unfit: R. v. Lacasse, [2015] 3 S.C.R. 1089, [2015] S.C.J. No. 64, 2015 SCC 64, at para. 11.

[149] To be demonstrably unfit, the sentence imposed must depart unreasonably from the principle of proportionality. As explained in Lacasse [at para. 53]:

Proportionality is determined both on an individual basis, that is, in relation to the accused him or herself and to the offence committed by the accused, and by comparison with sentences imposed for similar offences committed in similar circumstances.

[150] In concluding that the respondent's sentence was demonstrably unfit, my colleague Huscroft J.A. identifies two principal concerns. These concerns focus on the use of Mr. Stuckless' previous sentence by the sentencing judge and her treatment of this court's decision in R. v. D. (D.) (2002), 58 O.R. (3d) 788, [2002] O.J. No. 1061 (C.A.). The result, in his view, is that the sentencing judge placed insufficient weight on the aggravating factors present in this case, and imposed an unfit sentence.

[151] My colleague Pepall J.A., for her part, focuses her discussion on two other concerns. She first concludes that the sentencing judge underestimated the gravity of the offences, pointing to recent parliamentary reforms to support her point. She also finds that the sentencing judge inadequately considered the number of victims and the harm they suffered.

[152] With respect, I am of the view that these concerns are not made out on the record. On the contrary, it is clear from the sentencing judge's reasons that she correctly applied the principle of proportionality, such that appellate intervention is not warranted in the instant case.

Analysis

[153] The sentencing in this case concerned numerous serious sexual offences committed against children and the harm caused to the many victims was incalculable. My colleagues take no issue with the sentencing judge's findings of fact, nor do they suggest that she applied the wrong sentencing principles. They have not identified any aggravating and mitigating factors different from those recognized by the sentencing judge.

[154] The sentencing judge's reasons demonstrate a thorough understanding of the gravity of the offences and the applicable sentencing principles. After an eight-day sentencing hearing, including two days of victim impact evidence from the majority of Mr. Stuckless' victims and extensive submissions by counsel, the sentencing judge understood that "the objectives of denunciation and deterrence in this case scream[ed] out for a lengthy period of incarceration": at para. 59.

[155] The sentencing judge correctly observed the following [at para. 55]:

[I]n sentencing child sex offenders the focus of the sentence must be on denunciation, general deterrence and protection of the public. While the other objectives are still relevant, they are not the primary focus of sentencing.

In her view, it was important that the sentence "send a clear message that adult offenders who put the lives of innocent children at risk will pay a very heavy price" and that it "acknowledge the harm suffered by all of Mr. Stuckless' victims and the courage and strength of all the victims that have come forward": at para. 1.

[156] At sentencing, the Crown argued that a 12-year sentence was warranted in part because Mr. Stuckless represented a continuing danger to the public. As a result, the Crown urged the sentencing judge to give considerable weight to the principle of protection of the public in the determination of a fit sentence. This submission was, however, rejected by the sentencing judge, as she found that Mr. Stuckless, while he was a pedophile, represented no real risk to the public. This conclusion played an important role in her determination of the appropriate sentence. It is one of several unusual features of the sentencing in this case. It both explains the sentencing judge's rejection of the Crown's proposed sentence and supports the finding that a six-and-a-half year sentence was, in all of the circumstances, fit.

[157] Another unusual feature is that Mr. Stuckless was found guilty in 1997 of similar offences committed against 24 boys within the same time period as the offences now before the court. For these offences, this court considered a six-year sentence to be appropriate: R. v. Stuckless (1998), 41 O.R. (3d) 103, [1998] O.J. No. 3177 (C.A.) ("Stuckless 1998"). That sentence has now long been served. As I will explain later in my reasons, this sentence was a useful benchmark that could be used by the sentencing judge as a starting point when she fashioned an appropriate sentence in this case.

[158] After assessing Mr. Stuckless' conduct since serving his sentence on the earlier charges, including the therapy he has received and the fact that he has been taking Lupron (a sex drive reducing drug) since 2002, the sentencing judge agreed with the expert evidence led at the hearing to the effect that Mr. Stuckless, who was 67 years old at the time, posed no real risk to reoffend. In fact, the trial judge went one step further by concluding, in effect, that Mr. Stuckless had been successful in his rehabilitation: at paras. 76, 116.

[159] The sentencing judge also compared Mr. Stuckless' offences and circumstances to those of offenders in approximately ten cases, identifying relevant similarities and differences with this case. In my view, the Crown has not demonstrated that these comparisons were flawed, nor have my colleagues made such a finding. The sentencing judge's review of the jurisprudence demonstrates that she properly assessed the relevant cases and the sentence she set aligns with established precedent.

[160] The sentencing judge's reasons demonstrate that the sentence she fashioned accounts for both bases according to which proportionality is determined. She considered Mr. Stuckless' personal circumstances, including his successful rehabilitation, and the offences he committed. She then situated these features relative to other relevant sentencing decisions. Balancing these considerations, she concluded that a six-and-a-half-year sentence was fit in the circumstances. This result was consistent with the principle of proportionality and did not constitute an unreasonable departure therefrom.

A. The sentencing judge did not misuse Stuckless 1998

[161] Contrary to my colleague Huscroft J.A., I do not consider that the sentencing judge "overlooked the significant evolution in sentencing jurisprudence" that has taken place since this court's decision in Stuckless 1998. The sentencing judge twice acknowledged that this court's decision in D. (D.) stood as the "leading authority" in sentencing for crimes of this nature, and that the sentence she imposed must be guided by that decision.

[162] In D. (D.), this court confirmed that the sentence imposed on Mr. Stuckless in 1998 was within the appropriate range of sentences to be imposed in the post-D. (D.) era, albeit "at the lower end of the appropriate range of sentences for crimes of the magnitude committed by Stuckless": at para. 4.

[163] The sentencing judge was careful not to apply Stuckless 1998 blindly. She acknowledged that the range of sentences for sexual assault on children had increased since that sentence was imposed. She also found that the convictions she was dealing with involved more serious conduct than those in the 1998 sentence, including a few incidents of violence beyond what was implicit to the sexual offences, as well as four incidents of digital penetration.

[164] However, as explained by the sentencing judge, the 1998 sentence was also relevant as the catalyst for Mr. Stuckless' road to rehabilitation. She noted that, in 1998, there had been only a prospect of rehabilitation, but that rehabilitation was now a fact. This created an unusual situation. As Mr. Stuckless was being sentenced for offences committed in the same time period as those underlying the 1998 sentence, he could, for sentencing purposes, be viewed as a first offender despite these earlier convictions. He would also benefit from the court's knowledge that the prior sentence had resulted in his successful rehabilitation and that he no longer constituted a risk to the public.

[165] Stuckless 1998 thus provided a good starting point for the determination of a fit sentence in the present case. The sentencing judge took the aggravating factors that were not present in 1998, as well as the additional mitigating factors that were also present in this case, to determine that a somewhat higher sentence than the 1998 sentence would be necessary for a fit sentence to meet the principle of proportionality.

[166] As a result, the use of the 1998 sentence, in the circumstances, contributed to, rather than departed from, the respect for the proportionality principle. It reflected both an awareness of personal considerations, especially Mr. Stuckless' rehabilitation, and an exercise in comparing the facts of the underlying offences to those of similar cases.

B. The sentencing judge did not consider herself limited to the D. (D.) ranges

[167] Another concern raised by my colleague Huscroft J.A. is that the sentencing judge "appears to have considered D. (D.) to establish a cap on the range of available sentences, given what she described as the additional aggravating factors at play in that case".

[168] I do not share this concern. Nowhere does the sentencing judge say that D. (D.) somehow set hard and fast categories, nor does she fixate on the presence or absence of any specific aggravating or mitigating factor to justify a given level of sentence.

[169] The sentencing judge identified important differences between aggravating and mitigating factors involved in D. (D.) and in the case before her. It was ultimately for her to determine the weight to be given to these differences and to determine where, in the sample of comparable sentences, the sentence in this case should fall.

[170] The sentencing judge was well aware of the aggravating features present but concluded that a sentence in the range of eight years or higher would not "take into account all the mitigating factors" she highlighted: at para. 119. As explained in Lacasse [at para. 78]:

[D]etermining the weight to be given to aggravating or mitigating circumstances falls strictly within the sentencing judge's discretion. The decision to weigh such factors in a given way is not in itself an error that opens the door to appellate intervention unless the weighing is unreasonable.

More than mere disagreement with the sentencing judge's weighing is required in order to justify appellate intervention. The sentencing judge's weighing must be found to be "unreasonable".

[171] Moreover, the fact that my colleague would have selected a different range from D. (D.) does not necessarily render the sentence demonstrably unfit. In Lacasse, the court held [at para. 51]:

[T]he choice of sentencing range or of a category within a range falls within the trial judge's discretion and cannot in itself constitute a reviewable error. An appellate court may not therefore intervene on the ground that it would have put the sentence in a different range or category.

[172] In my view, the sentencing judge did not consider D. (D.) as a cap on the range of available sentences. It was another benchmark -- albeit an important one -- that she applied in fashioning Mr. Stuckless' sentence. Her comparison of D. (D.) to the present case, as well as her choice of a sentencing range within the ones enumerated in that decision, are owed deference. Absent the identification of an unreasonable departure from the proportionality principle, appellate intervention is not justified.

C. Legislative changes that took place after the offences were committed should not be considered on this appeal

[173] My colleague Pepall J.A. argues that the sentencing judge in this case "unreasonably underestimated the gravity of the respondent's offences". To support her argument, she references this court's decision in R. v. M. (D.) (2012), 111 O.R. (3d) 721, [2012] O.J. No. 3616, 2012 ONCA 520, and relies on legislative changes introduced by Parliament in recent years.

[174] I see no error in the sentencing judge's consideration and application of D.M. D.M. was, in effect, a reiteration of the message delivered by this court in D. (D.) and, in any event, was applied by the sentencing judge. Further, as I will explain, my colleague's reliance on legislative changes to support her decision to impose a higher sentence is unfair and unwarranted.

(1) The argument was not made on appeal

[175] The legislative changes surrounding the offences with which the respondent was charged, as well as the legislative changes to the sentencing for the sexual abuse of children, were not argued on this appeal, nor were these changes mentioned in the parties' submissions.

[176] The 2005 and 2012 changes were not even raised at the sentencing hearing. In his sentencing submissions, the trial Crown noted the recent passage of the Tougher Penalties for Child Predators Act, S.C. 2015, c. 23 ("Bill C-26"). Although he acknowledged that it could not be applied in this case, he asked the sentencing judge to recognize the "clear and strong recognition from Parliament for the need for tougher penalties". The trial Crown also mentioned the Victims Bill of Rights Act, S.C. 2015, c. 13, which my colleague did not refer to in her reasons. Concerns over the sentencing judge's consideration or use of the 2015 Acts were not raised on this appeal.

[177] Moreover, not only do the offences predate the 2015 Acts -- making them inapplicable -- but Mr. Stuckless' guilty plea also pre-dates them. Mr. Stuckless pleaded guilty on April 22, 2014 and would certainly not expect that the sentence that may be imposed would be increased because the court would take into account a subsequent statutory amendment. This unfairness is exacerbated by the fact that the delay between his plea and sentencing is largely attributable to the Crown's decision to assess the respondent in relation to a dangerous offender application, an application that it ultimately abandoned.

(2) What Parliament did when it amended the Criminal Code and the impact of these changes

[178] My colleague argues that "Parliament's legislative reforms governing sexual offences signal that society's denunciation of this conduct must be reflected in the sentences imposed by courts". She acknowledges that the amendments are not applicable in this case but nonetheless finds that they "indicate a significant societal recognition of the gravity of sexual offences against children" and reflect society's better understanding of harm caused by these offences to victims and the community, and the need to address this harm in the sentencing process.

[179] I take no issue with the need for sentences to reflect society's understanding of the harm caused by offenders to victims and the community. This is the daily fare of sentencing judges: see Lacasse, at paras. 48, 102. In fact, it was the recognition of the horrific consequences of child sexual abuse that led this court, in D. (D.), to substantially raise the sentences imposed on these offenders. D. (D.) brought about a "real sea change" to the sentencing of offenders who sexually assault children: M. (D.), at para. 26. A review of the various statutory amendments since D. (D.) shows that, in essence, they enact the principles developed by this court in D. (D.) and other courts well before Parliament chose to codify them: see, e.g., R. v. De Jaeger, [2015] Nu. J. 6, 2015 NUCJ 2, at para. 130, affd [2018] Nu. J. 34, 2018 NUCA 7; R. c. Bergeron, [2013] J.Q. no 10, 2013 QCCA 7, EYB 2013-216007, at para. 70.

[180] The sentencing judge's reasons show that she clearly understood the need to address the harm caused to victims and the community. She referenced and applied the principles that my colleague argues flow from the various statutory amendments, albeit as flowing from this court's decision in D. (D.) and cases such as De Jaeger. At the very outset of her reasons, she stated [at para. 1]:

[T]he starting point must be that the sentence I impose must protect the public and ensure that Mr. Stuckless will never again hurt another child. My sentence must also send a clear message that adult offenders who put the lives of innocent children at risk will pay a very heavy price. My sentence must also acknowledge the harm suffered by all of Mr. Stuckless' victims and the courage and strength of all the victims that have come forward.

[181] To suggest that the legislative amendments supported the imposition of a sentence in excess of that reached as a result of the application of the D. (D.) principles is unjustified as it would, in effect, involve the application of the same aggravating factors twice to the same offences.

[182] Later in her reasons, however, my colleague references the 2005, 2012 and 2015 amendments and states that this court and other appellate courts across Canada have acknowledged that "sexual offences against children must be interpreted in the context of these amendments and what they signal about the gravity of the offence".

[183] To the extent that my colleague is thereby suggesting that the statutory amendments signaled the need for sentencing judges to change how they would otherwise appropriately assess the gravity of these offences resulting in higher sentences, I respectfully disagree. Such an interpretation would, in effect, amount to a retrospective application of legislated changes regarding sentence.

[184] Section 11(i) of the Canadian Charter of Rights and Freedoms provides that a convicted person is entitled to the benefit of the lesser punishment that is in place between the time of the commission of the offence and the time of sentencing. The use of post-offence legislative changes to alter the weight to be assigned to a given factor, and thus increase the sentence that would otherwise be imposed, amounts to doing indirectly what cannot be done directly and is thus in violation of the Charter.

[185] It is well-established that a legislative amendment setting or increasing a minimum sentence should generally not be applied retrospectively: see R. v. J. (K.R.), [2016] 1 S.C.R. 906, [2016] S.C.J. No. 31, 2016 SCC 31, at para. 22. In my view, there is no substantive difference between a higher sentence that results from the retrospective application of a parliamentary amendment setting a minimum sentence and a higher sentence that is due to the retrospective application of an amendment "signalling" that offences must be considered to be more serious. Both scenarios involve the consideration of post-offence legislation to give a higher sentence to an offender. In both cases, therefore, this results in a violation of s. 11(i) of the Charter.

D. The sentencing judge did not omit important details and she properly considered the significance of the number of victims and the harm they suffered

[186] My colleague Pepall J.A. also argues that, when the sentencing judge allocated the sentence among the charges, she omitted important details, such as the fact that two of the victims had screamed in pain while being assaulted and that one victim was threatened with being run over by a car. Each of these facts, however, were set out in the sentencing judge's reasons: at paras. 12, 29 and 30. There is no basis for the suggestion that, while being aware of these facts, the sentencing judge somehow neglected to factor them in her assessment of the appropriate sentence.

[187] My colleague suggests that the sentencing judge did not give adequate consideration to the victims in this case. According to my colleague, the sentencing judge minimized the significance of the number of victims and failed to appreciate the depth of harm caused by the respondent.

[188] I disagree. The profound psychological impact the assaults had on the victims was central to the sentencing judge's reasoning and determination of the appropriate sentence. She specifically stated that the sentence proposed by the defence did not "properly reflect the extent of the harm caused by Mr. Stuckless and the large number of victims who have suffered": at para. 119.

[189] The sentencing judge had the benefit of eight days of hearings on sentencing, including extensive testimonies from some of the victims. At the very outset of her reasons, the sentencing judge stated that her sentence needed to "acknowledge the harm suffered by all of Mr. Stuckless' victims": at para. 1. She said that "[i]t [was] difficult, if not impossible, to put into words the harm that Mr. Stuckless has caused so many people": at para. 50. She found that the victim impact statements were "tangible, overwhelming at times and utterly heart wrenching" and recognized the "extensive harm each victim has suffered": at para. 50.

[190] The sentencing judge also readily acknowledged that "[t]he harm suffered does not go away" and that "the memories, the flashbacks, the post-traumatic stress disorder, the broken relationships, lost dreams, all continues even today so many years later": at para. 52.

[191] A fair reading of the reasons demonstrates that the sentencing judge considered the number of victims and its significance in her analysis and appreciated the extent of the harm that the victims suffered, and still suffer today.

Conclusion

[192] There is no denying that these were truly horrendous crimes with severe impacts on the numerous victims. The aggravating factors present in the case were extensive, including the number of victims, abuse of trust, the use of manipulation and the prolonged and persistent nature of the abuse. The sentencing judge was, however, aware that her role involved more than the assessment of the harm caused to the victims. As she explained [at para. 72]:

I am mindful that given the harm caused by Mr. Stuckless over so many years to so many people that it is difficult and often unpopular to even suggest any mitigation. I am required, however, by law, to consider all the evidence objectively, put emotion aside and make findings of fact on the evidence presented before me.

[193] The mitigating factors included Mr. Stuckless' remorse, the abuse he suffered as a child, his guilty plea, his low risk of reoffending, his presence in the community without incident since 2001 and his dedication to his rehabilitation, as he had been taking Lupron since 2002.

[194] The resulting sentence is not a minimization of the harm of the victims. Rather it is, as it must be, a balancing exercise that must take both aggravating and mitigating factors into account.

[195] Ultimately, what is relevant at this stage of the proceedings is whether the six-and-a-half-year sentence imposed is demonstrably unfit, such that this court may intervene. In my opinion, having regard to the deference that is owed to sentencing judges, the answer is no.

[196] The sentencing judge's reasons exhibit a full appreciation of the relevant sentencing principles, aggravating factors, personal circumstances and relevant case law. She conducted extensive jurisprudential comparisons, and her assessment was a proper application of the proportionality principle. Absent an unreasonable departure from that principle, it is not open for this court to vary the sentence.

[197] Indeed, as stated by Sharpe J.A. in R. v. C. (S.) (2019), 145 O.R. (3d) 711, [2019] O.J. No. 1286, 2019 ONCA 199, "[a] longer sentence could discourage guilty pleas and undermine the interest of rehabilitation": at para. 35. In this case, as it is not clear that a longer sentence would "appreciably add to the deterrent effect of the sentence that was imposed", this court should defer to the sentencing judge's assessment of the proper sentence: C. (S.), at para. 35.

[198] For these reasons, I would grant leave to appeal sentence but, with one exception, dismiss the appeal. The parties agree that the six-year net sentence imposed for the counts of gross indecency should be reduced to the maximum of five years, concurrent to the sentence imposed on the other counts.

Appeal allowed.

Notes

1 The Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, enacted s. 718.3(7) of the Criminal Code to require that sentences of imprisonment for sexual offences against multiple children be served consecutively. This law does not apply in the circumstances of this case. It was not raised by the parties and its impact need not be addressed here.

2 Criminal Code, S.C. 1953-54, c. 51, s. 148; Criminal Code, R.S.C. 1970, c. C-34, s. 156.

3 An Act to amend the Criminal Code in relation to sexual offences and other offences against the person and to amend certain other Acts in relation thereto or in consequence thereof, S.C. 1980-81-82-83, c. 125, s. 9 (came into force 1982, effective date of repeal January 4, 1983).

4 Criminal Code, S.C. 1953-54, c. 51, s. 149; Criminal Code, R.S.C. 1970, c. C-34, s. 157.

5 An Act to amend the Criminal Code and the Canada Evidence Act, R.S.C. 1985 (3d Supp.), c. 19, s. 4 (came into force in 1987, effective date of repeal January 1, 1988).

6 Criminal Code, S.C. 1953-54, c. 51, s. 147; Criminal Code, R.S.C. 1970, c. C-34, s. 155.

7 An Act to amend the Criminal Code and the Canada Evidence Act, S.C. 1987, c. 24, s. 3.

8 In 2016, Bill C-32, An Act related to the repeal of section 159 of the Criminal Code was introduced in the House of Commons to repeal s. 159.

9 The one year mandatory minimum sentences enumerated in ss. 151 and 152 of the Criminal Code have been struck down as unconstitutional in a number of Superior Court decisions including R. v. T. (B.J.), 2016 ONSC 6616 and R. v. Hussein, [2017] O.J. No. 3567, 2017 ONSC 4202 (S.C.J.). T. (B.J.) has been appealed to this court. One of the grounds of appeal relates to the constitutionality of the mandatory minimum. The appeal was heard by this court in February 2019. The judgment is currently under reserve (C62978).

10 The Crown's submissions before the sentencing judge referenced the most recent amendments to the Criminal Code relating to sexual offences against children and which were part of a series of legislative reforms that included the 2005 and 2012 amendments.

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