WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application.

In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Ontario Court of Justice

Date: January 30, 2017

Court File No.: Halton 16-1308

Between:

Her Majesty the Queen

— and —

D.H.

Before: Justice D.A. Harris

Heard on: May 10, 2016 and November 16, 2016

Reasons for Sentence released on: January 30, 2017

Counsel:

• Monica MacKenzie, for the Crown
• H. Kim Taylor, for the defendant D.H.

REASONS FOR SENTENCE

HARRIS D.A. J.:

Charges and Guilty Pleas

[1] D.H. pled guilty to:

• indecent assault on a female, M.R., which occurred between July 23, 1969 and July 23, 1976 in Halton Hills; and
• sexual assault on E.W., which occurred between July 31, 1983 and July 31, 1988, in Hamilton.

[2] Indecent assault was an indictable offence. Crown counsel elected to proceed by indictment with respect to the sexual assault.

[3] Mr. D.H. is before me today to be sentenced.

Crown and Defence Positions

[4] Crown counsel suggested that I should sentence him to imprisonment for 18 months followed by probation for two years. She also requested the following ancillary orders:

1. An order that Mr. D.H. comply with the provisions of the Sex Offender Information Registration Act (SOIRA) for life;
2. An order pursuant to section 161 of the Criminal Code, restricting Mr. D.H.'s access to females under 16 years of age, for life;
3. a DNA order; and
4. a weapons prohibition.

[5] Counsel for Mr. D.H. suggested that I impose a conditional sentence of imprisonment for up to two years less one day, followed by probation for three years. He agreed that it was appropriate for me to make a SOIRA order, a weapons prohibition for five years, and a DNA order. He opposed the making of an order pursuant to section 161, suggesting that it would not be legal and that, in any event, I could adequately cover the same areas with conditions in the conditional sentence and probation orders.

Sentencing Framework

[6] I find that a sentence of imprisonment for six months, blended with a conditional sentence of imprisonment for two years less a day followed by probation for three years is appropriate. My reasons for this are set out under the following headings:

1. The law regarding conditional sentences of imprisonment,
2. The fundamental purpose and principles of sentencing,
3. The facts underlying the offence,
4. The impact on the victims,
5. The background of Mr. D.H., and
6. Analysis.

CONDITIONAL SENTENCE OF IMPRISONMENT

[7] The conditional sentence came into being when section 742.1 of the Criminal Code was proclaimed in 1996.

[8] The Supreme Court of Canada subsequently stated in R. v. Proulx that "Parliament clearly mandated that certain offenders who used to go to prison should now serve their sentence in the community."

[9] The Supreme Court of Canada stated further that an offender who meets the criteria of section 742.1 will serve a sentence under strict surveillance in the community instead of going to prison. His liberty will be constrained by conditions to be attached to the sentence. In case of breach of conditions, the offender will be brought back before a judge who may order him to serve the remainder of the sentence in jail, as it was intended by Parliament that there be a real threat of incarceration to increase compliance with the conditions of the sentence.

[10] Section 742.1 lists five criteria that a court must consider before deciding to impose a conditional sentence. These are:

1. the offender must be convicted of an offence that is not specifically excluded by the legislation;
2. the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment;
3. the court must impose a term of imprisonment of less than two years;
4. the safety of the community would not be endangered by the offender serving the sentence in the community; and
5. a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

[11] The first four criteria are prerequisites to any conditional sentence. These prerequisites answer the question of whether or not a conditional sentence is possible in the circumstances. Once they are met, the next question is whether a conditional sentence is appropriate. That decision turns upon a consideration of the fundamental purpose and principles of sentencing set out in sections 718 to 718.2.

Charter Argument on Conditional Sentence Availability

[12] In this case, counsel disagreed as to whether the first prerequisite has been satisfied.

[13] Crown counsel argued that a conditional sentence of imprisonment was not available when Mr. D.H. committed his offences. The sentence did not exist then. She also argued that by the time that he was charged, his offences were excluded pursuant to amendments to the Criminal Code.

[14] Counsel for Mr. D.H. argued that there was an intervening period (between 1996 and 2007) during which, had Mr. D.H. been charged, his offences would not have been excluded. He argued further that pursuant to section 11(i) of the Canadian Charter of Rights and Freedoms, Mr. D.H. is entitled to the benefit of the lesser punishment.

[15] I agree with counsel for Mr. D.H.

[16] Section 11(i) of the Charter provides that:

11. Any person charged with an offence has the right

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

[17] I agree with the comments of Hearn J. in R. v. Mehanmal that this section is to be interpreted liberally. It refers to the time of commission of the offence and the time of sentencing, but also to the period in between. Clearly, the punishment for Mr. D.H.'s offences has been varied between the time of commission and the time of sentencing. Accordingly, he has the right to the benefit of the lesser punishment.

[18] I also find that the next three prerequisite criteria have been satisfied.

[19] The offences were not punishable by a minimum term of imprisonment.

[20] Crown counsel agreed, as do I, that I should impose a sentence of imprisonment for less than two years.

[21] Finally, I find that Mr. D.H. serving his sentence in the community, subject to appropriate conditions, would not endanger the safety of the community. He has not committed any further offences in the past 28 years. He has been assessed as a low risk of reoffending. I am satisfied that, with the appropriate safeguards in place, there is no danger that he would return to crime following the imposition of a conditional sentence.

[22] That then leaves the question of whether a conditional sentence is appropriate in all of the circumstances of this case. In making this decision, I must consider the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code.

FUNDAMENTAL PURPOSE AND PRINCIPLES OF SENTENCING

[23] The fundamental purpose of sentencing as expressed in section 718 is to contribute to respect for the law, the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the objectives of denunciation; deterring the offender and other persons from committing offences; separating offenders from society, where necessary; assisting in rehabilitating offenders; providing reparation for harm done to victims or to the community; and promoting a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

[24] The relevance and relative importance of each of these objectives will vary according to the nature of the crime and the circumstances of the offender.

[25] The fundamental principle of sentencing is that the punishment should be proportionate to the gravity of the offence and the degree of responsibility of the offender. The punishment should fit the crime. There is no single fit sentence for any particular offence.

[26] Doherty J.A. of the Ontario Court of Appeal stated in R. v. Hamilton that:

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.

[27] He went on to state that:

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.

[28] He then quoted Rosenberg J.A. who had previously described the proportionality requirement in R. v. Priest:

The principle of proportionality is rooted in notions of fairness and justice. For the sentencing court to do justice to the particular offender, the sentence imposed must reflect the seriousness of the offence, the degree of culpability of the offender, and the harm occasioned by the offence. The court must have regard to the aggravating and mitigating factors in the particular case. Careful adherence to the proportionality principle ensures that this offender is not unjustly dealt with for the sake of the common good.

[29] Proportionality is the fundamental principle of sentencing, but it is not the only principle to be considered.

[30] Section 718.01 of the Criminal Code provides that "When a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct".

[31] Section 718.2(a)(ii.1) provides that evidence that an offender, in committing an offence, abused a person under the age of eighteen years, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[32] Section 718.2(a)(iii) provides that evidence that an offender, in committing an offence, abused a position of trust or authority in relation to the victim, shall be deemed to be an aggravating circumstance and that the sentence should be increased to reflect that.

[33] The offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation. Section 718.2(a)(iii.1) of the Criminal Code provides that this too is an aggravating circumstance, and that the sentence should reflect that.

Sentencing Principles for Child Sexual Abuse

[34] The Ontario Court of Appeal has provided considerable direction with respect to sentencing adults who have sexually abused young victims.

[35] In R. v. D.D., the Ontario Court of Appeal "discussed the plight of children in general and the principles and objects of sentencing that must take precedence when adult predators choose to exploit innocent young children". The relevant considerations and principles are summarized below:

1. Our children are our most valued and our most vulnerable assets.

2. We as a society owe it to our children to protect them from the harm caused by sexual predators.

3. 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.

4. 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.

5. 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.

6. 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.

[36] The fundamental message that the Court of Appeal has sought to convey is that:

The harm occasioned [to children] by [adult sexual predators] is cause for grave concern. Children are robbed of their youth and innocence, families are often torn apart or rendered dysfunctional, lives are irretrievably damaged and sometimes permanently destroyed. Because of this, the message to such offenders must be clear - prey upon innocent children and you will pay a heavy price!

[37] Finally, the Court of Appeal made it clear in R. v. Stuckless that the absence of overt force and the absence of penetration "does not automatically relegate the sexual abuse of children to the lower range of sexual offences". Abella, J.A. went on to state:

There is no question that "additional force", collateral crimes and penetration are aggravating facts, but their absence does not transform them into mitigating circumstances nor neutralize the other aggravating factors found in this case, the abuse of trust, the number of victims, the frequency of the assaults and their devastating impact on the lives of the victims. These offences were individually and collectively unconscionable. Any characterization which purports to diminish their magnitude is unacceptable.

Historical Context of Sentencing Provisions

[38] At the time that Mr. D.H. committed the indecent assault, the maximum sentence was imprisonment for five years and he could have been whipped.

[39] At the time that he committed the sexual assault, the maximum sentence was imprisonment for ten years.

[40] I must, however, also consider the fact that Parliament has since amended the Criminal Code such that the offence of indecent assault on a female has been replaced by sexual assault and there is now a mandatory minimum sentence of imprisonment for one year where the victim of the sexual assault was under 16 years of age. The maximum sentence is imprisonment for 10 years.

[41] The new mandatory minimum sentence does not apply to Mr. D.H. but I am satisfied that I should view this amendment as a reflection of Parliament's intention that such offences should be treated more seriously than they were before.

[42] Andre J. certainly accepted that argument in R. v. Wasiluk, stating that:

In my view, a statutory increased penalty is a legislative signal that the sentencing paradigm has shifted towards a regime of tougher sentences than that which previously existed.

Restraint Principles

[43] On the other hand, I must also consider section 718.2(d) of the Criminal Code which provides that "an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances".

[44] I must also consider the impact of section 718.2(e) which provides that "... all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders."

[45] The Supreme Court of Canada discussed the application of this section in Gladue v. The Queen and said that section 718.2(e) applies to all offenders, and that imprisonment should be the penal sanction of last resort. Prison is to be used only where no other sanction or combination of sanctions is appropriate to the offence and the offender.

[46] The Supreme Court also noted that section 718 now requires a sentencing judge to consider more than the long-standing principles of denunciation, deterrence and rehabilitation. Now a sentencing judge must also consider the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. As a general matter restorative justice involves some form of restitution and reintegration into the community. A conditional sentence is much more effective than jail in achieving these restorative justice goals.

Conditional Sentence as Punitive Sanction

[47] I must also note that the Supreme Court of Canada expressly said in R. v. Proulx, supra that a conditional sentence is "a punitive sanction capable of achieving the objectives of denunciation and deterrence" although it is not as effective as a sentence of real imprisonment.

[48] I also note that:

there need not be any equivalence between the duration of the conditional sentence and the jail term that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence.

[49] I can therefore impose a conditional sentence that is longer in duration than the jail term that I might otherwise have imposed.

Blended Sentences

[50] Further, since I am to sentence Mr. D.H. for more than one offence, I can impose a "blended sentence".

[51] It is settled law that it is improper to blend a custodial sentence with a conditional sentence in the context of a single offence.

[52] However, "when an accused is being sentenced for more than one offence, it is legally permissible to blend a custodial sentence with a conditional sentence so long as the sentences, in total, do not exceed two years less one day and the court is also satisfied that the preconditions in s. 742.1(b) have been met in respect of one or more but not all of the offences."

[53] Before applying these principles, I must take into account the facts underlying the offences, the impact on the victim and the background of Mr. D.H.

THE OFFENCES

Offence Against M.R.

[54] Mr. D.H. is the biological father of E.W. He is the uncle (by way of marriage) of M.R. E.W. and M.R. are cousins. The events involving M.R. occurred prior to the birth of E.W.

[55] During the early 1970's the accused spent a significant amount of time at the R. family residence. He would frequently give hugs and massages to M.R. and her three siblings.

[56] By 1972 she was 7 years of age and had become aware that the massages she was receiving were different than the massages her brothers were receiving. Notably, Mr. D.H. would frequently put her on his lap while massaging her. She could tell something was in his pants but at the time she was unsure what it was. She now recognizes that he had an erection during these incidents.

[57] By 1973 he was discussing his sex life and sexual preferences with her whenever they were alone. During these conversations he would not touch her. He would also frequently talk about religion and "God's Love" with her when they were alone. During these "God's Love" conversations he would begin to massage her upper back and then begin fondling her upper chest and vaginal area - all over top of her clothes. This behaviour was repeated numerous times.

[58] In the spring of 1974, when she was 8 or 9 years of age Mr. D.H. was again at her residence and was reading a bedtime story to her and her younger brother. All three were in the brother's bedroom, on the bed. Mr. D.H. was in the middle and flanked by the two children. While reading the story, he began to fondle M.R. with his hand, touching her chest. He then proceeded to fondle her vagina, over top of her clothes. He then slid his hand under her pajama bottoms and inserted his finger into her vagina. She winced and jerked her body away from him. He read a few more lines from the book and then left the room.

[59] M.R. reported the above information to the Halton Regional Police Service on April 9th 2015.

Offence Against E.W.

[60] Sometime between January 1st 1981 and December 31st 1984, E.W. was in her residence along with her sister and their father, Mr. D.H. She was between 3 and 6 years of age at the time. They were in his bedroom. He was standing naked in front of the two girls who were on the bed. Mr. D.H. instructed E.W. to touch his penis. She did as she was instructed, and squeezed the head of his penis and then stared into the urethral opening.

[61] Sometime between January 1st 1986 and December 31st 1987, E.W. was in her residence along with her mother and her father. During the evening hours she entered her parents' bedroom where both parents were lying on the bed. She climbed onto the bed and laid down on her stomach, in between her parents. She was wearing a nightie and did not have on underwear. She then felt his hand of the accused touch her upper leg. He continued to move his hand over her buttocks and then used his finger to rub her vagina, from the clitoris to the vaginal opening. She immediately jumped up and left the room.

[62] She reported these incidents to the Hamilton Police Service on April 28, 2015.

[63] Mr. D.H. was arrested on June 12th 2015. He was released on a Promise to Appear and an Undertaking to an officer in charge.

IMPACT ON THE VICTIMS

[64] I received Victim Impact Statements from both victims. They were also interviewed for the Pre-sentence Report.

Impact on M.R.

[65] In the Pre-sentence Report, M.R. stated that she met Mr. D.H. as a toddler and was the flower girl in his marriage to her aunt when she was three years old. He was the "fun-loving uncle" who wanted to be around the children all the time instead of the adults. She reported being terrified and shocked by his subsequent sexually abusive behaviour. At the age of 12, she was finally able to stand up to him and walk away from him; she reported feeling empowered finally being able to sever their communication. Thereafter, he became mean-spirited and demeaning toward her, frequently making disparaging remarks about her physical appearance and later, when she was an adult, belittling her career choice.

[66] M.R. wrote the following in her Victim Impact Statement:

EMOTIONAL:

Do not feel safe within social structures where I am constantly in tension and am numb and withdrawn. I fight intense feelings of anger and sadness- starting at a young age to present. I isolate myself and have little to no trust with others.

I had always wanted to marry and have children- to this point I have never even dated and remain single. I smile for others and pretend things are good so I don't impact people in a negative way.

I put most of my energy into work to keep my job. This effort depletes my energy and ability to involve myself with other things in life.

The sexual statements and information given to me as a young child along with the continued touching, filled my head with things I did not understand. I did not process this in a healthy way and it impacts me ongoing.

I carry shame that was ingrained as a child.

PHYSICAL:

I eat emotionally when coping with day to day anxieties and have lost 200 lbs 2 times since 2008. (There are documented notations through Bernstein and later a trainer- I note this as I usually tend to think people don't believe me- another struggle.)

I battle this every day of my life. Eating has helped me numb intense emotions. I have not been able to understand an alternative. I work hard at trying to keep healthy and work with a trainer, but struggle to get ahead of it.

Impact on E.W.

[67] In the Pre-sentence Report E.W. reported that the effects of her father's offending behaviour have had a significant and traumatic impact on her. She advised of severe depression and anxiety, a history of self-harm and substance abuse issues, sexual experimentation and interactions from a young age and a history of intimate relationships with abusive males. She stated that she has had no contact with Mr. D.H. since 2005 and advised that at present, she does not wish to communicate with him. She did say, however, that she would like to have the option of contact and communication if she so chooses in the future.

[68] E.W. wrote in her Victim Impact Statement:

PHYSICAL:

Used (and still use) sleep as a refuge/coping mechanism- can sleep at odd times through the day if conflict in family/depressed- once I was told at a young age that I had slept for over 24 hours. I used to throw up all over the house all the time (sometimes from anxiety, other times for no apparent reason).

Used unhealthy coping mechanisms like self-harm, ie. burning myself with incense, lighters, branding with other metal objects (early teens- 30 years of age)

FINANCIAL:

Started working from the age of 16 to support myself and to be self-sufficient, by 18 years old, I worked two jobs. By 20 years old began living on my own and supporting myself. Finally went on to postsecondary education taking on student loans to pay for my own education while working as well. It took me eight years to pay off these loans. I had to do everything on my own, always living pay cheque to pay cheque- with no familial financial support.

EMOTIONAL:

Started using drugs, alcohol, and smoking, and having sex at an early age – finding ways to escape and numb-out. Exposed to sexual experiences, conversations, pornography. Developed self-esteem and anger issues – especially find this difficult within my own parenting today. Struggled through high school, achieving just passing grades. Struggled with relationships – choosing abusive, sociopathic men. Felt I had to hide stuff/keep thing secretive while at home. I was neglected and left on my own as a small child, caring for myself from a very young age (before 3 years of age). Experience sexual aversions – cannot be kissed on the neck. Dealing with strained relationships in the family -particularly mother - finally rebuilding.

BACKGROUND OF MR. D.H.

[69] I received a Pre-sentence Report, a psychiatric report, two reference letters and a number of short doctor's letters regarding Mr. D.H.'s more recent health problems. These sources provided me with the following information.

Early Life and Medical History

[70] Mr. D.H. is now 70 years of age.

[71] He was born in Welland. His father worked as a furnace design engineer and his mother was an elementary school teacher. He had a sister who was six years older than him. The family moved to Toronto when he was four after Mr. D.H. was diagnosed with brittle bone syndrome and the family required a home outfitted properly for a child with his condition.

[72] Then at the age of five, he recalled riding his tricycle onto his neighbour's driveway, waving to the neighbour and then he fell when his heart stopped. He was rushed to the hospital and was "clinically dead for 20 minutes". He spent the next several years in the hospital. He left the hospital when he was ten years old. At the age of 13, he was diagnosed with a heart murmur, a result of suffering from prolonged rheumatic fever; at the age of 35, the heart murmur resolved itself and he reported no related issues since that time.

[73] Mr. D.H. has very few childhood memories relating to peer relationships and social interactions with others his age as most of his contact and communication was with nurses and medical specialists.

Early Sexual Development

[74] His earliest pleasurable memories were of adults massaging him. His bedroom routine consisted of one of his parents coming into his room, lighting a candle, singing lullabies and giving him a massage.

[75] Mr. D.H. discovered the "amazing pleasure of masturbation" at the age of ten.

[76] His first sexual experience occurred at the age of 11 with his 18 year old babysitter. This consisted of "mutual oral masturbation".

[77] At the age of 12 (according to the Pre-sentence Report) or 17 or 18 (Psychiatric Report) he began having sexual intercourse with his 40 year old piano teacher. This continued for three years. Mr. D.H. did not view these as abusive interactions or breaches of trust or authority, rather he felt honoured by his ability to excite his older female partners. He has had seven sexual partners in his past, all consensual interactions with females either the same age or older than him.

[78] At the age of 14, his father introduced him to pornographic material in the form of books. He was "inspired" by the depictions and was able to determine what interested him sexually.

[79] Growing up, Mr. D.H. was always aware of his parent's intimacy and sexuality. They bathed together and enjoyed frequent sexual intimacy which he was always aware of as they put a sign in their door for privacy.

Education and Employment

[80] Because of his extended stay in hospital, Mr. D.H. did not attend an educational facility until the latter half of grade seven when his family moved to Burlington. In the interim, he was home schooled by his mother. He attended high school in Burlington; during his grade nine year, he went to school for two hours each day, slowly integrating into the mainstream educational system. In grade ten, he moved to a newly built high school and began attending classes full time. He related well with his teachers, however, did not have many friends until grades 11 and 12, when he was fully assimilated back in the school system. He reported no behavioural issues, no suspensions or expulsions and described his grades as mediocre.

[81] After high school, in 1965, he went to McMaster University and obtained his B.A. in religion. He also took some chemistry courses. During university, he worked nights at Stelco and he really enjoyed it. Upon graduation, he took a full-time position there as a chemist. He worked nights for 31 years.

[82] In 2000, at the age of 54, he was offered a "spectacular package" due to the company downsizing and he took early retirement.

[83] In 1991, he had gone back to school and taken courses in reflexology. He received his diploma and graduated as an Ontario Government Certified Reflexologist in 1993.

[84] He secured part time work as a reflexologist in a nursing home from 1994-2002. In 2002, Mr. D.H. suffered an aneurism and it was two years before he was able to resume his reflexology practice full time.

[85] For the past 12 years, he has been working three to four days a week at a wellness centre where he performs treatments on adults and children. He informed that when he is treating minors, there is always an adult present, often the child's mother.

Marriage and Family

[86] He met M.S. in 1967. They married two years later and their first daughter was born in 1976, their second daughter in 1978. They remained married for 27 years and separated in 1996. M.S. described their marriage as positive at the beginning, absent of physical and emotional abuse; however, she stated that things soon began to slowly unravel. She described Mr. D.H. as a wonderful father to their older daughter, spending a lot of with her and caring for her while M.S. was at work. When their second child was born, Mr. D.H. treated their younger daughter very differently, often interacting with her in a more volatile, negative and temperamental manner. It was not until after they separated, and her daughter was an adult, that she discovered that he had touched her in a sexually inappropriate manner.

[87] M.S. characterized Mr. D.H. as charming, highly intelligent, attention seeking and untruthful. He is very charismatic and has a way of easily enveloping others and bringing them around to his way of thinking. He has a very persuasive personality and is able to easily "pull the wool over everyone's eyes". He was very open regarding sex, indicating that he was always very intrigued about all sexual matters. Some of his requests included having group sex with other couples and having an open marriage where either person could freely engage in sexual interactions with other parties. Although M.S. never noted any sexually inappropriate behaviour directed toward children, when their daughters were younger, Mr. D.H. often walked around naked in front of them until she told him that this was not appropriate behaviour. Mr. D.H. had a strong interest in being involved in children's activities such as being a "reading volunteer'' with the students at their daughters' elementary school, inviting the children's chess team over to their home while she was at work and being involved in the children's choir of which their daughter was a member.

[88] In the last three years of their marriage, she learned that he was having extra-marital affairs and they separated, in part, because he fell in love with another woman.

[89] According to Mr. D.H., the marriage was devoid of affection, intimacy, sexuality and emotion from the very beginning and they attended for marriage counselling numerous times during their 27 years together. There was no physical or emotional abuse present. There was also no active or regular sex life. M.S. did not find sex pleasant and they only had sex on three or four occasions, and this was in order to conceive their two children. However, there was infidelity by both parties. Both he and his wife had sexual partners outside of their marriage, each with the other's consent, knowledge and permission.

[90] While his children were young, he admitted that he often walked around the home naked and advised that his daughter "would surely have seen (his) penis at some time". Around the time when the children reached the age of seven, he reported that he began to cover his genitals while in the home.

[91] Just after their 25th wedding anniversary they attended with a counsellor who suggested they terminate their marriage; they separated immediately following in 1994 and divorced two years later. He was deeply saddened by the divorce and experienced feelings of depression.

[92] He advised that his younger daughter (E.W.) moved in with his wife and he relocated to Dundas, Ontario with his older daughter. Several months later, he took a leave of absence from work and went to live with a friend for several months in the United States, leaving his 18 year old daughter behind to reside in their apartment by herself. Upon his return to his apartment, he found an eviction notice.

[93] In 1998, after living with a friend for a few months, he moved into a motel in Grimsby, Ontario and remained living there for the next two and a half years. During this time, he reported regular contact with his older daughter and sporadic contact with his younger daughter. He suffered his second aneurism while residing in the motel.

[94] Over the next several years, he was involved in two relationships. One ended by mutual agreement and the other woman he was dating passed away.

[95] Contact with his daughters lessened over the years. He attended at both of their weddings but in 2005, his younger daughter, E.W. advised him that she wanted no further contact with him. Then five years ago, his older daughter told him that she also did not want any further contact or communication with him and accused him of being a "child molester''.

[96] Mr. D.H. reported minimal contact with extended family members as a child and he has no relationships with any family presently with the exception of his sister. She resides in Cape Breton. He last saw her 25 years ago. They remain in communication via letter writing as she does not have a telephone. She is aware of his present Court matters and has been supportive through her correspondence.

[97] His parents both died in 1974. His father was killed by a drunk driver one block away from the family home. Neighbours ran to his home and told his mother of the accident. She then died from a heart attack immediately upon hearing the news. Mr. D.H. reported that it was difficult to lose two parents within five minutes of each other, but "beautiful for them".

Current Relationship and Living Situation

[98] In 2002, Mr. D.H. met K.P. on an on-line dating website. They moved in together several months later and resided in Mississauga for two years before moving to Burlington in 2004. They have resided in the same apartment for the past 12 years. He described his relationship with her as comfortable and loving and stated that although she suffers from agoraphobia which results in her rarely leaving their home; they enjoy activities such as watching TV and spending time together.

[99] They engaged in sexual relations for the first year but she was not comfortable with their sexual intimacy and their sexual interactions decreased to once or twice a year for the following several years. For the past six years there have been no sexual interactions at all in their relationship. He is content with that situation. It is noted though that he masturbates three or four times a week.

[100] K.P. described their relationship in positive terms, free of mental and physical abuse. They share common interests and goals and communication is positive. Mr. D.H. is caring, gentle, interesting and compassionate. He has no anger management issues. In the past year, they have faced numerous challenges including financial issues, health concerns and the present court matters. These have placed a significant emotional and financial strain on them.

[101] They are experiencing financial difficulties since she lost her job at a bank last year and has been unable to secure employment since. Mr. D.H. is presently in receipt of a pension plus CPP and OAS.

[102] Mr. D.H. is satisfied with his chosen retirement career and advised that his future plans include teaching reflexology for several years and eventually hiring someone to take over his practice when he is 77 years old.

[103] K.P. expressed shock and disbelief at Mr. D.H.'s arrest. She has never noted any inappropriate sexual behaviour involving children and she does not believe that he engaged in the behaviour for which he was charged.

[104] Mr. D.H.'s friends and professional colleagues describe him as a caring, engaging and compassionate individual. They expressed shock at the offences and stated that during the years they have known him, they have never noted any inappropriate sexual behaviour toward children.

Health and Psychological Assessment

[105] Mr. D.H. is not in good health.

[106] Seven years ago he had a brain aneurysm. Since that time, he has suffered from a type of epilepsy. He had gall bladder surgery in late 2015. He has been declining rapidly since then. He has fainting spells several times a day and continues to undergo medical testing to determine the cause. He is in constant physical pain.

[107] He also has been treated for depression and anxiety by his general practitioner. He saw a psychiatrist for consultation on February 29, 2016. He was diagnosed with mood and anxiety not otherwise specified. This suggests that he demonstrated some depression and anxiety in response to recent psychosocial stressors. He was prescribed Prozac.

[108] Blood tests showed his serum testosterone to be 34.2nmol/l. This is quite high for a man of his age. There is no direct link between serum testosterone and sexually offending, but Dr. Glancy wrote that the fact that his sex drive is moderately high and his serum testosterone is high for his age suggests that relapse prevention treatment should be instituted.

[109] Mr. D.H. has consistently denied any sexual thoughts of fantasies involving children. He was not very interested in females his own age as a teenager, but preferred older women. Since then he has preferred females age 35 or older.

[110] Dr. Glancy provided a report which concluded with the following assessment:

The Structured professional judgment method of prediction of future risks suggest a low risk of future sexual violence. It is generally recognized in the field that incest offenders have a low risk of future sexual violence. Factors that are of concern include a slightly raised some testosterone and relatively high sex drive, and some minimization sexual violence. It is generally recognized that incest offenders (that is offenders against family members) tend to be driven by other factors rather than sexual deviation, such as substitution and abuse of power in the relationship. A significant factor is that 30 years have gone by without further offenses. Generally speaking the greatest risk of recidivism occurs within the first 2-5 years. Another significant factor is that the evaluee is 69 years old. Canadian figures showed that for most sex offenders risk of recidivism over the age of 70 is minimal. Taken together these factors lead to the conclusion that the future risk of sexual violence is very low.

[111] Alcohol has never been a problem. He drank socially until 14 years ago. He has not consumed any since then. He has never used illegal drugs.

[112] He had no prior criminal record.

[113] The Pre-sentence Report contains the following observations:

The subject reported promptly for the two scheduled Pre-Sentence Report interviews. He presented as polite and cooperative. He pled guilty to the offences before the Court and stated that he accepts responsibility for certain aspects of his behaviour adding that as soon as he realized that his actions could be interpreted as "wrong", he stopped. When discussing his behaviour, the subject admitted to physical contact with the victims; however, maintained that he did not have any sexual thoughts or feelings resulting from his actions. He acknowledged the harm that he caused the victims.

ANALYSIS

Difficulty of Sentencing

[114] Determining the appropriate sentence in a case like this is extremely difficult. First of all, I realize that whatever sentence I impose, at least one side and possibly both will be disappointed. The friends and families of the victims may see the sentence as being too lenient while the friends and family of D.H. may see it as being too harsh.

[115] Further, no sentence can undo or even begin to remedy the harm done to the victims.

[116] Further, sentencing is not an exact science. The determination of the sentence that is just and appropriate in a given case is "a highly individualized exercise that goes beyond a purely mathematical calculation."

Sentencing Principles in This Case

[117] General deterrence and denunciation are clearly the most important principles of sentence in this case, but I must not lose sight of the other principles.

[118] I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of Mr. D.H. and yet, at the same time, one that is responsive to his unique circumstances.

[119] I must consider both the aggravating factors and the mitigating factors when determining the appropriate sentence here.

Aggravating Factors

[120] The aggravating circumstances can be found in the facts surrounding the offences.

[121] Mr. D.H. committed offences against two different victims.

[122] Both victims were very young. The offences against M.R occurred when she was between 7 and 9 years old. E.W. was between 5 and 9 years old.

[123] The offences involved breaches of trust. M.R was his niece. E.W was his daughter. Fathers and uncles are supposed to protect daughters and nieces from potential sexual predators. They are not supposed to become predators themselves.

[124] The offences involving M.R. occurred over a two year period. The offences involving E.W. began 9 years later and occurred over a 5 year period.

[125] The sexual acts included touching M.R. in the area of her chest and her vagina, over her clothing. He penetrated M.R.'s vagina with his finger on one occasion. He instructed E.W. to squeeze his penis and she did this. On another occasion, he used his finger to rub her vagina from her clitoris to the vaginal opening.

[126] The impact on them has been traumatic. In light of the fact that they have not got over this after so many years suggests that they never will.

Mitigating Factors

[127] There are also a number of mitigating factors.

[128] Mr. D.H. pled guilty. I take this to be an acceptance of responsibility as well as an expression of remorse. Most importantly, it made it unnecessary for M.R. and E.W. to testify. They were spared the ordeal of revisiting their victimization in a public courtroom.

[129] I do note however that the pleas were not early ones and in fact came after trial preparation had begun.

[130] Further, while accepting that Mr. D.H. has expressed his remorse, I also note that he still minimizes his offences at times and appears to fall far short of full insight into what he did and the impact that this had on his victims.

[131] He had no prior criminal record.

[132] He has strong support from his family and those friends who have stood by him. This could bode well for his future rehabilitation, except that his current partner does not believe that he committed the offences.

[133] There is no suggestion of a problem with either drugs or alcohol.

[134] He has not offended since 1988.

The Passage of Time

[135] With regard to this fact, I note that there are very real limits on the degree to which the passage of time from when the offences occurred can be a factor to be taken into account in fixing where on the appropriate range a sentence should be imposed.

[136] The lapse of time does not in any way render inapplicable the principles of general deterrence and denunciation.

[137] The only sentencing principles which may be affected by the lapse of time are those of individual deterrence and rehabilitation. If the accused, during the intervening years, has led an exemplary life in all respects, including non-repetition of sexual offences, and upon the matter ultimately being reported to the authorities and during the resulting investigation and prosecution he is remorseful, then the principles of individual deterrence and rehabilitation may arguably, by themselves, not justify a stern sentence of the kind which would have been obligatory many years earlier. It will be noted, however, that if, despite having led an exemplary life, the offender lacks remorse, and any potential discount must be less than it otherwise would have been.

[138] With that in mind, I restate my earlier comment that while accepting that Mr. D.H. has expressed his remorse, I also note that he still minimizes his offences at times and appears to fall far short of full insight into what he did and the impact that this had on his victims.

Collateral Consequences

[139] Mr. D.H. has suffered collateral consequences that include the loss of reputation within the community. This case received some attention in the news media following the issuing of a press release by the Halton Regional Police. He changed congregations within his church. Family members other than the victims have cut off contact with him. His older daughter did this, accusing him of being a "child molester".

Health Considerations

[140] Mr. D.H.'s health is not good.

[141] He suffered a brain aneurysm several years ago and now suffers from a type of epilepsy.

[142] He had gall bladder surgery in January 2016 and has been in pain daily since then.

[143] He is currently being treated by his general practitioner for depression and anxiety.

[144] This however is not a mitigating factor in this case. The status of an offender's health may be a relevant consideration on sentencing, but in this case there was no evidence put before me that his medical conditions could not be properly treated while he was incarcerated. The Ontario Court of Appeal has repeatedly pointed out that correctional authorities are bound by statute to provide such medical care.

Age Considerations

[145] Advanced age may be a mitigating feature. After all, it is harder for an older person to serve a prison term. Further, they have a shorter life expectancy once they are released. As a general rule, however, advanced age does not entitle a person who has committed an offence of the kind we are dealing with here to a non-custodial sentence. The most such an offender can hope for is a reduction in the time he would otherwise have served.

[146] I am not prepared to find that 70 years qualifies as "advanced age". I am however prepared to accept that it would be more difficult for Mr. D.H. to serve a jail sentence because of the combination of his age and physical condition and to take that into account in determining the appropriate length of any such sentence.

Risk Assessment

[147] It is a mitigating factor that Dr. Glancy assessed Mr. D.H. and concluded that the future risk of sexual violence is very low.

[148] Crown counsel argued that I should give little weight to that assessment. She pointed out correctly that there were discrepancies between what Mr. D.H. told Dr. Glancy regarding his sexual relations with his first wife and what she told the author of the Pre-sentence Report regarding the same subject.

[149] I disagree.

[150] I noted those discrepancies. I also noted other discrepancies between what Mr. D.H. told Dr. Glancy and what he told the author of the Pre-sentence Report. I also noted that there was no testing done to provide an objective assessment of whether Mr. D.H. has any pedophilic tendencies. All I have is his statement that he does not versus the fact that he sexually assaulted two young girls in the past. With respect to all of these matters, I have no way to assess the credibility of the conflicting stories and make an informed determination as to which I believe. Mr. D.H. gets the benefit of my lack of certainty regarding this.

[151] More importantly, it was clear from Dr. Glancy's report that these were not relevant factors in his assessment of any risk that Mr. D.H. might pose. The factors that he did rely upon were:

1. Incest offenders have a low risk of future sexual violence;

2. 30 years have gone by without further offences. Generally speaking the greatest risk of recidivism occurs within the first 2-5 years;

3. Mr. D.H. is 69 (now 70) years old. Canadian figures showed that, for most sex offenders, risk of recidivism over the age of 70 is minimal;

4. Taken together these factors lead to the conclusion that the future risk of sexual violence is very low.

[152] None of these assumptions are controversial. Accordingly, I am prepared to accept Dr. Glancy's conclusion.

[153] In passing, I note that Dr. Glancy also agreed that there was some minimization of sexual violence by Mr. D.H.

Conditional Sentences in Similar Cases

[154] Crown counsel argued correctly that a review of Ontario cases makes it clear that conditional sentences have rarely been imposed in cases of a breach of trust involving the sexual touching of children by adults. That includes a number of cases which could be described as similar to that of Mr. D.H.

[155] On the other hand, counsel for Mr. D.H. argued just as correctly that "rarely" does not mean "never" and he provided me with a number of such cases in which conditional sentences were imposed. Again some of these could be described as similar to that of Mr. D.H. Further, these cases referred to other cases in which conditional sentences were also imposed.

[156] In the end, the cases that counsel referred to simply tell me that it is open to me to impose either a jail sentence or a conditional sentence. That then brings me back to where I began this analysis. I must craft a sentence that is proportionate to the gravity of the offence committed and the degree of responsibility of Mr. D.H. and yet, at the same time, one that is responsive to his unique circumstances.

Conclusion on Sentencing Approach

[157] In that regard, I find that these offences require a jail sentence to clearly denounce Mr. D.H.'s behaviour and to make it clear to any like-minded individuals that if they sexually abuse children, they will face serious consequences.

[158] The length of the jail sentence will be six months. That is considerably shorter than might otherwise have been the case, but the length has been tempered because of the following.

[159] The jail sentence will be blended with a concurrent conditional sentence of imprisonment for two years less one day, followed by probation for three years.

[160] The conditional sentence of imprisonment will include a home confinement term for the first year. So for that year, Mr. D.H. will be either in jail or subject to the home confinement. I am satisfied that this will provide some further punishment, although perhaps not as much as it would for other offenders. I say that because it appears that Mr. D.H. currently does not go out much, if any, more than he will be allowed to pursuant to my order.

[161] The combined conditional sentence and probation will provide for restrictions on Mr. D.H. for the longest period of time possible. Those will include restrictions that might otherwise be contained in ancillary orders that are not available here.

Section 161 Order

[162] Crown counsel requested that I make an order pursuant to section 161(1) of the Criminal Code prohibiting Mr. D.H., for the rest of his life, from:

(a) attending a public park or public swimming area where persons under the age of 16 years are present or can reasonably be expected to be present, or a daycare centre, schoolground, playground or community centre;

(a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where the victim identified in the order ordinarily resides or of any other place specified in the order; and

(b) seeking, obtaining or continuing any employment, whether or not the employment is remunerated, or becoming or being a volunteer in a capacity, that involves being in a position of trust or authority towards persons under the age of 16 years.

[163] I am not satisfied that (a) is appropriate here. I believe that (a.1) definitely is appropriate and that a variation of (b) would also be appropriate. However, section 161 was not enacted until 1993 and therefore this provision was not in place when Mr. D.H. committed his offences. In R. v. K.R.J., the Supreme Court of Canada held that retrospective application of section 161(1)(c) contravened section 11(i) of the Charter. I suspect that the same reasoning would apply with respect to sections 161(1)(a), (a.1) and (b).

[164] The terms of the conditional sentence and probation can however include similar restrictions on Mr. D.H., albeit for a shorter period.

Weapons Prohibition

[165] With respect to a weapons prohibition, I note that section 98 (the predecessor to the current section 109) only allowed a five year weapons prohibition. Such weapons prohibitions are sentences as defined by section 673 of the Criminal Code and again, by virtue of section 11(i) of the Charter, Mr. D.H. is entitled to the lesser punishment.

Global Sentencing Approach

[166] Finally, I wish to make it clear that nothing should be read into the fact that I imposed a jail sentence for one offence and a conditional sentence plus probation for the other. I am viewing the offences globally and the blended sentence should be viewed in the same fashion. The combination of imprisonment for six months blended with the maximum period of a conditional sentence of imprisonment and probation, should satisfy the principles of denunciation and deterrence, both general and specific, while also addressing the remaining principles of sentencing.

SENTENCE

[167] For the above reasons, I sentence Mr. D.H. as follows:

[168] With respect to the indecent assault offence involving M.R., Mr. D.H. is sentenced to imprisonment for six months.

[169] With respect to the sexual assault offence involving E.W., Mr. D.H. is sentenced to a conditional sentence of imprisonment for two years less one day, to be served in the community. This will run concurrent to the above sentence. It will be followed by probation for three years.

Conditions of Conditional Sentence

[170] The terms of the conditional sentence of imprisonment will require that Mr. D.H.:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. report in person to a supervisor within two working days and thereafter report when required by the supervisor and in the manner directed by the supervisor;

4. notify the supervisor in advance of any change of name or address, and promptly notify the supervisor of any change of employment or occupation;

5. remain within the Province of Ontario unless written permission to go outside the Province is obtained from the court or the supervisor;

6. cooperate with his supervisor. He must sign any releases necessary to permit the supervisor to monitor his compliance and he must provide proof of compliance with any condition of this order to his supervisor on request;

7. live at G[…] Road, Burlington, Ontario, or a place approved of by the supervisor and not change that address without obtaining the consent of the supervisor in advance;

8. a home confinement condition will be in effect for the first year of the sentence;

9. during that time he will remain in his residence at all times except:

   a) between 1 pm and 5 pm on Saturdays in order to acquire the necessities of life,

   b) for any medical emergency involving him or any member of his immediate family (spouse, child, parent, sibling),

   c) for going directly to and from or being at school, employment, court attendance, religious services and legal or medical or dental appointments for himself or K.P.,

   d) for going directly to and from or being at assessment, treatment or counselling sessions,

   e) he will confirm his schedule in advance with his supervisor setting out the times for these activities,

   f) with the prior written approval of the supervisor. The written permission of the supervisor is to be carried with him during these times,

   g) while serving his sentence of imprisonment in a jail or reformatory.

10. During the period of home confinement, he must present himself at his doorway upon the request of his supervisor or a peace officer for the purpose of verifying his compliance with his home confinement condition.

11. not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with M.R or E.W., except with the prior written consent of the above named person, filed in advance, by that person, with the supervisor. This may be cancelled by the person in any manner at any time.

12. not be within 20 metres of any place where he knows them to live, work, go to school, frequent, or any place he knows them to be, except with the prior written consent of the above named person, filed in advance, by that person, with the supervisor. This may be cancelled by the person in any manner at any time.

13. not have any physical contact with any female person who is under the age of 16 years, unless he does so under the direct supervision of a responsible adult person who is aware of his offending;

14. attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the supervisor, including the Sexual Offender Relapse Prevention (SORP) program or any other program recommended by his supervisor;

Conditions of Probation

[171] The terms of the probation order will require that Mr. D.H.:

1. keep the peace and be of good behaviour;

2. appear before the court when required to do so by the court;

3. notify the court or the probation officer in advance of any change of name or address and promptly notify the court or the probation officer of any change of employment or occupation;

4. report in person to a probation officer within two working days of completing his conditional sentence of imprisonment and after that, at all times and places as directed by the probation officer or any person authorized by a probation officer to assist in his supervision;

5. cooperate with his probation officer. He must sign any releases necessary to permit the probation officer to monitor his compliance and he must provide proof of compliance with any condition of this order to his probation officer on request;

6. not contact or communicate in any way, either directly or indirectly, by any physical, electronic, or other means, with M.R. or E.W., except with the prior written consent of the above named person, filed in advance, by that person, with the probation officer. This may be cancelled by the person in any manner at any time.

7. not be within 20 metres of any place where he knows them to live, work, go to school, frequent, or any place he knows them to be, except with the prior written consent of the above named person, filed in advance, by that person, with the probation officer. This may be cancelled by the person in any manner at any time.

8. attend and actively participate in all assessment, counselling or rehabilitative programs as directed by the probation officer, including the Sexual Offender Relapse Prevention (SORP) program or any other program recommended by his probation officer;

9. not have any physical contact with any female person who is under the age of 16 years, unless he does so under the supervision of a responsible adult person who is aware of his offending;

Ancillary Orders

[172] I also make the following ancillary orders.

[173] These are primary designated offences and I make an order pursuant to s. 487.051 of the Criminal Code, authorizing the taking from Mr. D.H. of any number of samples of one or more bodily substances, including blood, that are reasonably required for the purpose of forensic DNA analysis.

[174] These are also designated offences pursuant to section 490.011 of the Criminal Code. Accordingly, I make an order pursuant to s. 490.012 of the Criminal Code, that Mr. D.H. comply with the provisions of the Sex Offender Information Registration Act for life.

[175] Finally, pursuant to section 109 (then section 98) of the Criminal Code, for the next five years Mr. D.H. is prohibited from owning, possessing, or carrying any firearm, crossbow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance.

[176] I am not satisfied that the provisions of s. 161 of the Criminal Code are applicable here and I am not making an order pursuant to that section.

[177] Mr. D.H. will have six months following his release from jail to pay the victim fine surcharges.

Released: January 30, 2017

Signed: "Justice D.A. Harris"