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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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: December 17, 2019

Court File No.: Central East Region: Oshawa Court 18-25098

Between:

Her Majesty the Queen

— and —

R.H.

Before: Justice Peter C. West

Heard on: August 21, 2019, September 27, 2019, November 13, 2019

Reasons for Judgment released on: December 17, 2019

Counsel

Ms. M. Newhouse — counsel for the Crown

Mr. S. Yeghoyan — counsel for the accused

WEST J.:

Introduction

[1] R.H. pleaded guilty to charges of sexual interference, making child pornography and accessing child pornography on March 6, 2019. An agreed statement of facts was filed and marked as Exhibit 1. Sentencing submissions were adjourned to June 10, 2019. The charges relate to two young persons, C.S. and S.L.-J. The victim impact statement of S.L.-J. was marked as Exhibit 2. A pre-sentence report, dated June 7, 2019, authored by Erin Robertson, Probation and Parole Officer was marked as Exhibit 3. A psychological Report of Dr. Jeffrey Abracen, Ph.D., C. Psych., dated June 14, 2019, together with his C.V. was marked as Exhibit 4. An addendum to Dr. Abracen's report was marked as Exhibit 6. The victim impact statement of C.S. was marked as Exhibit 5. Sentencing has been adjourned on a number of occasions, for various reasons. The Crown's oral submissions were made on August 21, 2019, however, the defence submissions had to be adjourned to November 13, 2019, because of time running out. Mr. Yeghoyan requested he be allowed to file written submissions on December 2, 2019, because he wished to obtain a further report from Dr. Abracen respecting future risk. A two page letter was filed, with appendices, by Mr. Yeghoyan on December 2, 2019. This letter, with appendices, was marked as Exhibit 7. It was agreed by all parties that my sentence would be adjourned until December 17, 2019, as I intended to provide written reasons. These are those reasons.

Position of the Parties

[2] R.H.'s matter was judicially pre-tried on a number of occasions and it was always his intention to plead guilty to some of the charges. The Crown is seeking a nine (9) year penitentiary sentence, with the following ancillary orders: a D.N.A. order under ss. 487.04 and 487.051 as a primary designated order on all charges; a SOIRA order pursuant to s. 490.012(1) for life, pursuant to s. 490.013 (multiple convictions) and a s. 161 prohibition order for life, pursuant to s. 161(a)(a.1)(b)(c) and (d). The defence is seeking a three to four (3-4) year penitentiary sentence and a 10 year s. 161 order. Mr. Yeghoyan takes no issue with the other two ancillary orders.

Factual Background

[3] On January 3, 2018, S.L.-J. attended a police station complaining that she and her boyfriend C.S., were being threatened by a man who had sexually abused C.S. since he was a young boy.

[4] R.H. is related to C.S.'s stepfather and used to attend C.S.'s home where he would wrestle with and sit close to C.S. and at different times R.H. put his hand on C.S.'s thigh. When C.S. was 10 years old, R.H. began to take him on 1-3 day, parent-approved, road trips to Niagara Falls, Buffalo and Windsor to sightsee and watch sporting events. C.S. recalled sleeping in the same bed as R.H. and waking up with their hands on each other's private body parts.

[5] Between 2015 to 2017, R.H. took C.S. to hotels throughout Durham and the GTA and once to R.H.'s home in Toronto where they performed oral sex on each other. They would meet up about every one to three months. C.S. told police they had anal intercourse where C.S. felt compelled by R.H. to insist on penetrating R.H. and urinating on R.H. The Agreed Statement of Facts set out when R.H. tried to refuse, C.S. would hurt R.H. To this day R.H. still suffers physical pain as a result of these interactions. R.H. was under the belief that some of these interactions were recorded, based on the way he perceived C.S. to be holding his cellular phone during the incidents. Dr. Abracen's report (Exhibit 4, p. 1) reflects that the sexual "activities escalated to where R.H. forced C.S. to perform oral and anal sex (on at least a few occasions)," which is a somewhat different version from what is contained in the Agreed Statement of Facts. There was a lot of communication over Skype, via text messages and sometimes over their cell phones.

[6] C.S. said he had to pretend to love R.H. and be in a relationship with him. C.S. told police he averaged one to three photos a day of his face and privates—mostly clothed and sometimes unclothed, which he sent to R.H. This occurred over a two and a half year period of time. The unclothed photos were sent between September to November 2017. C.S. would tell R.H. he was going to masturbate over a webcam so R.H. could watch. C.S. was expected to communicate with R.H. every day, otherwise R.H. got upset. R.H. used his cell phone to take a total of six (6) pictures of C.S. in the hotels they attended on three (3) separate occasions.

[7] After C.S. disclosed the sexual abuse to his girlfriend, S.L.-J., she began to converse with R.H. anonymously, pretending to be C.S. She then contacted R.H. and offered to take C.S.'s place. R.H. told her C.S. was not allowed to have a girlfriend, as C.S. would not allow R.H. to have a girlfriend. S.L.-J. sent approximately 25 images of herself, some clothed and some nude, to R.H. C.S. described to S.L.-J. a penalty system and deadlines he had to follow and R.H. had to follow as well. Penalties were accumulated by, for example, forgetting to email one another or not saying good night. Both R.H. and C.S. had to kill the penalties by performing sexual acts – each act was worth so many penalty points. Dr. Abracen's report reflected that R.H. "introduced rules to their encounters and the victim would be forced to engage in sexual acts as a way of addressing certain 'penalties.'"

[8] On January 4, 2018, a search warrant was executed at R.H.'s apartment and several devices were seized. Police found nude pictures of C.S. on the accused's USB drive. Relevant emails and photos were harvested from S.L.-J.'s computer, as well as R.H.'s computer. C.S. told police his cell phone and laptop had been destroyed, and that his desktop was never used for these communications.

Offender's Circumstances

[9] R.H. is currently 53 and is not married. He resides with his 79 year old mother and has expressed concern over who will care for her if he is incarcerated. R.H. reported to the probation officer he was sexually abused multiple times when he was younger. He has only recently been able to discuss his past. He described how he was abused when he was 11, 12 and 14 by different family members (a cousin and an aunt) and a family friend's daughter.

[10] He outlined how he had another sexual relationship with a young male he coached in baseball. According to R.H., this person was 16 years of age at the time when the age of consent was 14. R.H. stated this youth would perform fellatio on R.H. most of the time and occasionally R.H. would reciprocate because "I'm a nice guy." He maintained he would not have acted on his attraction to this 16 year old boy if the young person "had not come to him." However, it should be noted, the laws relating to sexual exploitation have existed since 1985 and a person in R.H.'s position, as someone in a position of authority or trust respecting a person 16 to 18, which would clearly include a baseball coach, would be committing the offence of sexual exploitation, notwithstanding this boy's consent.

[11] R.H. did not complete his high school education and has worked at different jobs, including gas stations, general labour, factories, landscaping and odd jobs through temp agencies. As he got older he worked in car dealerships driving cars for trades or deliveries. He was also employed as a mini school bus driver for special needs children 5 days a week.

[12] For six years he volunteered as a baseball coach in Scarborough. R.H. advised he continued coaching the same team as the boys grew up and still socializes with some of them to this day. He also assisted with time keeping and security with the Greater Toronto Hockey League from 2007 and 2014.

[13] R.H. obtained his truck driving licence eight years ago. He described this as "his dream job" He would drive Monday to Thursday, sometimes on Friday, into the United States and back with weekends off. He continued this employment until his arrest in 2018. He has been the recipient of social assistance since February 2018.

[14] Apparently in 2013, R.H. was a passenger in a car that was involved in a very serious motor vehicle accident where another vehicle spun out of control striking the car he was in. Mr. Yeghoyan provided a list of the medications R.H. continues to take to relieve his on-going pain. According to what R.H. told the probation officer, he was able to continue driving a truck to the U.S. for approximately five years after this accident.

[15] R.H. described frequently using alcohol when he was in his teens to his late twenties. He has only been drunk once in the last five years, as alcohol does not mix well with his medications. In his early 20s he smoked hash weekly and used cocaine twice. He used acid once. He became afraid of using illicit drugs when a friend, high on cocaine, jumped off a building. His addiction is gambling, which was confirmed by those contacted by the probation officer.

[16] R.H. advised the probation officer he is a person who believed it was important to help others, which he believes is what has gotten him into trouble. He described being the happiest he has ever been while the offences were occurring. His free time in the past was spent attending sporting events, volunteering for children's hockey and baseball leagues and going to the casino. He "loved going to the park and would just sit there."

[17] R.H. discussed the facts surrounding the offences at length and described how he got to know the victim and started to take him on weekend trips out of town when C.S. was 10 years old. He began to have a sexual attraction to C.S. after he reached puberty at the age of 12. The sexual activity increased over the years and it "got to the point where I just did it without being asked." R.H. claimed he attempted to stop the interactions on multiple occasions and he recounted C.S. would get upset if he did not come over. He said he thought, "If this is how I make him happy, it's what I'll do."

[18] When R.H. discussed the anal intercourse and urinating he said these were things he was not interested in and that C.S. would "make him do it." These incidents occurred in C.S.'s home, hotels and R.H.'s car. R.H. would then correct himself saying, "I keep saying he made me, he didn't, I let him do it." R.H. described C.S. having something on him that no one else did and he believed C.S. had "power and utter control" over him. R.H. told the probation officer, "it's tough to understand that I'm being punished for being raped…I get it cause I'm the adult but it's tough…that's the only part I'm really upset about…that I let a kid rape me, I let him do it." R.H. said he did not feel he was a bad person. He noted when he was with C.S. he was "a much happier person…the only time in [his] life [he] was happy." This included the sexual contact, "but not when it got more violent and extreme." He stated, "I cared for the kid too much…that was my problem…but I don't know if I can say that because if I cared so much, I wouldn't have let the other stuff happen."

[19] R.H. admitted, "there's a lot of blame to go around and I take it all…it all comes down to me." He thinks males are very attractive, but said he does not feel sexually attracted to males, rather, he is attracted to the person themselves, rather than their looks. Yet he told the probation officer, "the young teen look is attractive. I never went looking for it but there's a weakness there." He claimed he never thought he liked the look of that kid and he never thought, "hey I like the look of that kid, I need to get to know him" and "as a result he did not feel he was a risk as he never searched for it."

[20] R.H. told the probation officer he pled guilty to protect C.S. from going through a trial. He believed C.S. would not have told anyone and he is not happy everything is now out in the open. R.H. said he is "sorry for all the bad stuff that happened, but I'm not sorry because he made my life better for a little bit." He said he recognized he was the adult and should have stopped any sexual activity but noted C.S. "did it intentionally to make [R.H.] a better person." He claimed he was "blind to what was going on…once it started, it was too late to stop it." He informed the probation officer that he has learned a lot through this, he now knows his trigger points and that he will never allow someone to control him again.

[21] The probation officer expressed concern that R.H. did not take full responsibility for his actions and did not believe he could stop any of the sexual activities once they started. R.H. repeatedly blamed the victims but would then correct himself by saying he let C.S. do it. R.H. admits to an attraction to the "young teen look" and has admitted to two sexual relationships with teen males, yet he claims they both initiated the sexual contact. He denied searching for anyone who matched this description yet spent much of his spare time placing himself around children. While R.H. seemed to recognize he was the adult and should have stopped the behaviour, he completely ignored the fact the victims were not old enough to give consent. A further concern was R.H.'s justification to himself and others for why the behaviour occurred by blaming it on his own sexual abuse as a child. It was the probation officer's opinion that unless R.H. is able to change the above thought patterns and beliefs, he will continue to place himself in similar situations in the future. I will discuss these issues later in my reasons.

[22] R.H. was seen by a psychologist, Dr. Jeffrey Abracen, C. Psych., who assessed R.H. and determined he was in the "Average range of risk" based on his combined Static-99R/STABLE 2007 scores (Exhibit 4: Report dated June14, 2019 and Exhibit 6: Addendum report dated October 10, 2019). Based on his scores the 5-year predicted rates for sexual recidivism is 9.7%. R.H. "demonstrated difficulties in the following domains assessed by the STABLE 2007: Capacity for Relationship Stability, Emotional Identification with Children, General Social Rejection, Impulsivity, Poor Problem Solving, Negative Emotionality, Sex Drive/ Preoccupation, Sex as Coping and Deviant Sexual Preference." Dr. Abracen observed in his second report, dated October 10, 2019, "such issues can typically be addressed in sexual offender treatment programs which are offered in both community and institutional settings. He recommended R.H. attend sex offender specific treatment to help him address a variety of targets that would likely serve to reduce his risk of future offending."

[23] The observations of the probation officer respecting R.H.'s attempts to justify his conduct and his blaming of the victims are concerning in my opinion when considering the issue of future risk. A further concern is what was told by R.H. to Dr. Abracen concerning these issues. I will address this later in my reasons.

Victim Impact Statements

[24] Both C.S. (Exhibit 5) and S.L.-J. (Exhibit 2) provided victim impact statements (VIS) detailing the emotional impact R.H.'s actions had on them during the sexual abuse and even after it was discovered and stopped and R.H. was arrested. Both described having trouble sleeping at night and the recurrence of flashbacks. Both C.S. and S.L.-J. described inflicting self-harm to themselves as a result of R.H.'s abuse. C.S. had suicidal thoughts and on a number of occasions he made nooses in his room to carry out the act. He became obsessed with death and suffered from severe depression as a result of R.H.'s behaviour and conduct with him.

[25] Both C.S. and S.L.-J. spoke of how R.H.'s abuse towards them damaged their relationships with their families and friends because R.H. was so controlling. R.H. forbade C.S. to form relationships with girls and insisted on C.S. sending messages of adoration to him daily. C.S. described how R.H. groomed and brainwashed him from when he was a child into his late teen years, which he said took away his innocence.

[26] S.L.-J. does not trust people, she does not feel safe and indicated nothing will ever be normal for her because R.H. took her ability to hope and move on. She will never be the same person.

[27] It is my view from reading the victim impact statements that the sexual abuse perpetrated by R.H. in respect of C.S. and S.L.-J. had a significant and serious impact on their emotional well-being and development.

Sentencing Principles to be Applied

[28] The purpose of sentencing is set out in s. 718 to 718.2 of the Criminal Code. I am of the view it is important to indicate what these sections set out because I believe this is where the applicable principles of sentencing are defined for criminal cases.

[29] Under s. 718 of the Criminal Code, the fundamental purpose of sentencing is to contribute to respect for the law and the maintenance of a just, peaceful and safe society by imposing a just sanction. Any sanction imposed must be the result of a fair and balanced consideration of the need to:

(a) Denounce the unlawful conduct;

(b) Deter the offender, and others, from committing such an offence;

(c) Separate the offender from society, where necessary;

(d) Assist in the rehabilitation of the offender;

(e) Provide reparation for harm done to "victims", or the community; and

(f) Provide a sense of responsibility in the offender, while acknowledging the harm done to the "victims" and the community.

[30] Pursuant to s. 718.01, when a court imposes a sentence for an offence that involves the abuse of a person under 18 years of age, it "shall give primary consideration to the objectives of denunciation and deterrence of such conduct."

[31] This statutory requirement was recognized in numerous Ontario Court of Appeal sentencing cases involving sexual predators who groom innocent young children and sexually abuse them over lengthy periods of time, where in R. v. D.D., Justice Moldaver, as he then was, held "absent exceptional circumstances, the objectives of sentencing proclaimed in s. 718 (a), (b) and (c) of the Criminal Code, 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." The same is true for offences involving child pornography (see R. v. Inksetter, 2018 ONCA 474, at para. 16 ; R. v. D.G.F., 2010 ONCA 27, at paras. 21-22).

[32] The "fundamental principle" of sentencing pursuant s. 718.1 of the Code is that a sentence "must be proportionate to the gravity of the offence and the degree of responsibility of the offender." In R. v. Nasogaluak, 2010 SCC 6, at para. 42, the Supreme Court explained the dual role of restraint and censure that proportionality plays in sentencing offenders:

[42] For one, it requires that a sentence not exceed what is just and appropriate, given the moral blameworthiness of the offender and the gravity of the offence. In this sense, the principle serves a limiting or restraining function. However, the rights-based, protective angle of proportionality is counter-balanced by its alignment with the "just deserts" philosophy of sentencing, which seeks to ensure that offenders are held responsible for their actions and that the sentence properly reflects and condemns their role in the offence and the harm they caused...Whatever the rationale for proportionality, however, the degree of censure required to express society's condemnation of the offence is always limited by the principle that an offender's sentence must be equivalent to his or her moral culpability, and not greater than it. The two perspectives on proportionality thus converge in a sentence that both speaks out against the offence and punishes the offender no more than is necessary

[33] As Rosenberg J.A. held in R. v. Priest, at para. 26:

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.

[34] Section 718.2 provides that a sentence should be increased or decreased to account for any aggravating and mitigating circumstances (s. 718.2(a)). A number of aggravating circumstances are set out in this section, which are applicable to the factual circumstances of the charges R.H. was convicted of.

[35] According to s. 718.2 (a)(ii.1), evidence that the offender, in committing the offence, "abused a person under 18 years of age," is statutorily deemed to be an aggravating circumstance of the offence. Therefore, the paramount principles of sentencing in cases involving sexual assaults of young children are denunciation and deterrence. Prior to the enactment of s. 718.01 referred to above, the Ontario Court of Appeal in R. v. Woodward, 2011 ONCA 610, Moldaver J.A., (as he then was) confirmed:

…when trial judges are sentencing adult sexual predators who have exploited innocent children, the focus of the sentencing hearing should be on the harm caused to the child by the offender's conduct and the life-altering consequences that can and often do flow from it. While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant 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.

[36] Further, s. 718.2(a)(iii) provides that evidence the offender, in committing the offence, abused a position of trust or authority in relation to the victim is statutorily an aggravating circumstance of the offence.

[37] Finally, s. 718.2(a)(iii.1) provides that evidence the offence had a significant impact on the victim, considering their age and other personal circumstances, including their health and financial situation, is statutorily deemed to be an aggravating circumstance of the offence.

[38] Section 718.2 also requires that a sentence be similar to other sentences imposed on similar offenders in similar circumstances (s. 718.2(b)), that the combined duration of consecutive sentences not be unduly long (718.2(c)), that an offender not be deprived of liberty if less restrictive sanctions may be appropriate (s. 718(d)), and that all available sanctions other than imprisonment that are reasonable in the circumstances be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders (s. 718.2(e)).

[39] Totality is an expression of the sentencing principle set out in s. 718.1 that a sentence must be proportionate to the gravity or seriousness of the offence and the moral culpability or responsibility of the offender. As well, s. 718.2(c) provides that where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh (see also R. v. Ahmed, 2017 ONCA 76, 346 C.C.C. (3d) 504).

[40] Where an accused is ordered to serve consecutive sentences for multiple offences, the offences are not looked at in isolation. Nor is it simply a mathematical exercise. The cumulative sentence must not exceed the overall culpability of the offender (see R. v. M. (C.A.), supra, at para. 42).

[41] It is not surprising that our courts have imposed significant penal sanctions for offences involving the sexual abuse of children, particularly where the offender is in a position of authority or breaches a position of trust. These sentences reflect a recognition of the serious psychological harm and emotional trauma occasioned to the victims.

[42] The seriousness of these types of offences, sexual interference: s. 151; making child pornography: s. 163.1(2) and accessing child pornography: s. 163.1(4.1) involving young children are reflected in the maximum sentence of 14 years and the mandatory minimum sentences set out in the Criminal Code for the offences of sexual interference and making child pornography and the maximum sentence of 10 years for accessing child pornography and the mandatory minimum sentence set out in the Criminal Code. It should be noted that the mandatory minimum sentence stipulated in s. 151 of the Criminal Code has been struck down by the Ontario Court of Appeal in R. v. B.J.T., [2019] O.J. No. 4503 as being unconstitutional.

[43] Section 718.3(4)(b)(i) of the Code addresses the imposition of consecutive sentences where an accused is found guilty of more than one offence, where the offences do not arise out of the same event or series of events.

[44] The Tougher Penalties for Child Predators Act, S.C. 2015, c. 23, increased mandatory minimum and maximum sentences for certain sexual offences against children. The minimum sentence for possession of child pornography was increased to one year and the maximum sentence to 10 years, where the Crown proceeds by indictment. There are cases in the Ontario Superior Court which have upheld the mandatory minimum sentence (MMS) and other cases that have struck down the MMS as being unconstitutional. The Ontario Court of Appeal has yet to decide this issue respecting the MMS in child pornography offences.

[45] These provisions also provided that the sentences for certain offences against children were required to be served consecutively. It added s. 718.3(7), which provides:

(7) When a court sentences an accused at the same time for more than one sexual offence committed against a child, the court shall direct

(a) that a sentence of imprisonment it imposes for an offence under section 163.1 be served consecutively to a sentence of imprisonment it imposes for a sexual offence under another section of this Act committed against a child;

(b) that a sentence of imprisonment it imposes for a sexual offence committed against a child, other than an offence under section 163.1, be served consecutively to a sentence of imprisonment it imposes for a sexual offence committed against another child other than an offence under section 163.1.

[46] In R. v. Inksetter, 2018 ONCA 474, Hoy A.C.J.O. observed at para. 24:

[...] Parliament's legislative initiatives signal Canadians' concerns regarding the increasing incidence of child pornography. Sentencing decisions that precede these amendments must be viewed with some caution.

[47] Of course, I must always consider the sentencing principle of rehabilitation, particularly given R.H. is a first offender, however, any sentence imposed must be grounded in the facts of R.H.'s case and be proportionate to the gravity of the offences committed by R.H. and his moral culpability. As indicated in R. v. Woodward, supra, at para. 76: "While the effects of a conviction on the offender and the offender's prospects for rehabilitation will always warrant 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."

[48] Bearing in mind these sentencing objectives and principles, I turn now to a consideration of the aggravating and mitigating circumstances of R.H.'s case.

Aggravating and Mitigating Circumstances

[49] In my view, the following aggravating circumstances are reflected in the facts of this case:

• In committing these crimes, R.H. abused children under the age of 18 years of age, which as noted is deemed to be an aggravating circumstance by s. 718.2 (a) (ii.1);

• In committing the offences R.H. clearly abused a position of authority or trust in respect of C.S. as he was the first cousin of C.S.'s step-father and was 35 years C.S.'s senior. He was placed in a loco parentis position as a result of C.S.'s parents allowing R.H. to take C.S. on overnight excursions sightseeing in other cities and to sporting events. This factor is deemed to be an aggravating circumstance as noted above by s. 718.2(a)(ii), warranting the imposition of significant sentences to ensure that children are protected from abusive caregivers;

• R.H. began to groom C.S. at the age of 10 years old when he would take C.S. on overnight outings for 1-3 days, parent-approved, road trips to Niagara Falls, Buffalo and Windsor to sightsee and watch sporting events. In R. v. G.C.F., the court treated grooming as an aggravating circumstance in a sexual assault case involving a child. By the age of 13, R.H. was sexually abusing C.S. on a regular basis and it continued for a period longer than two years. R.H. also implemented an intricate system of rewards and penalties. C.S. was required to send R.H. daily photos of his face and private areas, mostly clothed and sometimes unclothed. Police located nude images of C.S. on a USB drive in R.H.'s apartment. The sexual abuse continued for over two and a half years.

• The sexual abuse began as fondling and then progressed to both R.H. and C.S. performing oral sex on each other. The sexual abuse escalated where C.S. felt compelled by R.H. to perform anal intercourse on R.H. and urinate on him. Dr. Abracen's report refers to R.H. forcing C.S. to perform oral sex and anal sex (on at least a few occasions). In my view this is a significant aggravating circumstance to be considered on sentence when assessing the gravity of the offence. R.H. maintained in the PSR that it was C.S. who initiated this conduct and at one point R.H. indicated C.S. "made [him] do it," which is inconsistent with the Agreed Statement of Facts and what he told Dr. Abracen. As I will discuss later in my reasons for sentence the blame shifting engaged in by R.H. is directly related to the issue of his future risk towards children, which given his lack of insight is both troubling and concerning.

• C.S.'s girlfriend became aware of the sexual abuse and felt she had to step in by pretending to be C.S. in the social media postings. At the age of 17 she became R.H.'s victim as well, where she was required to send images of herself, both clothed and nude. S. L.-J. sent R.H. 25 images of herself both nude and unclothed, which R.H. deleted after viewing them. It is an aggravating circumstance that the sexual abuse involved two victims under the age of 18. The large number of incidents over an extended period of time, involving C.S., is also aggravating.

• The fact R.H.'s conduct had a significant impact on C.S. and S.L.-J. is an aggravating circumstance pursuant to s.718.2(a)(iii.1) of the Code, where a sentencing judge must take into consideration whether the offence has had a significant impact on a victim, having regard to his or her age and other personal circumstances, including the victim's health and financial situation.

• The Ontario Court of Appeal in Woodward, supra, and R. v. D.D., at para. 36, Moldaver J.A. (as he then was) considered the potential long-lasting trauma and impact of sexual abuse on a child and their families and observed:

…while there may have been a time, years ago, when offenders like the appellant could take refuge in the fact that little was known about the nature or extent of the damage caused by sexual abuse, that time has long since passed. Today, that excuse no longer holds sway. The horrific consequences of child sexual abuse are only too well known.

• The victim impact statements of C.S. and S.L.-J. both reflect the significant and long-term impact R.H.'s behaviour has had on them.

• In my view the control exercised by R.H. over C.S., from the time he was a child, age 10, in terms of C.S. having to text or email R.H. every day, expose himself over Skype masturbating, with penalties for not communicating daily is also an aggravating circumstance. These penalties were created by R.H. and involved C.S. performing sexual acts, which were worth so many points in order to eliminate the points accumulated as penalties. Apparently, R.H. would also get penalties if he did not communicate daily and this would result in R.H. performing sexual acts on C.S., which in my opinion were just further examples of R.H. sexually abusing C.S. for his own pleasure. R.H. took the position in the PSR that C.S. was controlling him, however, given the age difference, the position of trust and authority held by R.H. towards C.S., I find it was R.H. who controlled C.S., which is an aggravating circumstance.

• The PSR reveals a lack of insight and awareness of the significant harm he caused to the victims of his sexual abuse. Further, R.H. engages in shifting the blame for his conduct to the victims who he maintained came onto him and initiated the sexual contact. R.H. admits to being attracted to the "young teen look." All of these issues raise serious concerns as to R.H.'s future risk to young teen boys.

[50] R.H. does not have a criminal record despite engaging in similar behaviour with at least one other youth, age 15, prior to C.S. because this behaviour was not uncovered by police until after C.S. and S.L.-J. complained. R.H. admitted to the probation officer of being involved with another 16 year old boy prior to the charges involving C.S. Consequently, R.H. is before the court as a first offender, who is also facing a first sentence in the penitentiary. The fact R.H. is a first offender is a mitigating circumstance to be considered on sentence (see R. v. Priest, at paras. 17-20 ; R. v. Borde, at para. 36 ; R. v. Tan, 2008 ONCA 574, at paras. 30-33 , R. v. Batisse, 2009 ONCA 114, at paras. 32-36).

[51] R.H. pleaded guilty to the charges, which is a mitigating circumstance to be taken into account in determining a proportionate and fit sentence for R.H.'s criminal conduct. It reflects both R.H.'s remorse and acceptance of responsibility for his actions. I will address later in my reasons the Crown's submission that there is no evidence of genuine remorse on R.H.'s part. Suffice it to say that I am of the view R.H.'s guilty pleas reflect some remorse and his acceptance of responsibility for his criminal behaviour and conduct despite the blame shifting he clearly engages in throughout the PSR.

[52] R.H.'s guilty pleas obviated the necessity of the two victims having to testify at a preliminary hearing or a trial or both. In my view this is a significant mitigating circumstance.

[53] I was advised R.H. was the sole care provider for his 79 year old mother, which to some extent is a mitigating circumstance to consider. In addition, up until these charges R.H. was always gainfully employed, most recently as a long haul trucker delivering loads into the United States. This employment came to an end when R.H. lost his Good Character provision in the Trusted Traveller Program of Canada Border Services Agency. Of course, this consequence was directly attributable to R.H.'s criminal conduct because of these outstanding charges.

Analysis and Sentence Imposed

[54] I was provided with numerous cases by the Crown and defence counsel, addressing the range of sentences imposed for sexual offences involving children under the age of 18 years of age.

[55] It is important to note however, that no two cases are exactly alike, and as emphasized by Chief Justice Lamer in R. v. M. (C.A.), at paragraph 92:

Sentencing is an individualized process, and the search for a single appropriate sentence for a similar offender and a similar crime will frequently be a fruitless exercise or academic abstraction. As well, sentences for a particular offence should be expected to vary to some degree across various communities and regions in this country, as the "just and appropriate" mix of accepted sentencing goals will depend on the needs and current conditions of and in the particular community where the crime occurred.

[56] Consequently, a proportionate sentence in each case, in large measure, is determined by the specific and unique facts and circumstances surrounding the offender and the commission of the offences.

[57] The Crown provided the case of R. v. D.D., supra, where Moldaver J.A., (as he then was) set out the appropriate range of sentence for offences where the offender is in a position of trust and "sexually abuses innocent young children on a regular and persistent basis over substantial periods of time." In these types of cases offenders should receive mid to upper single digit penitentiary terms. Justice Moldaver continued by indicating where the abuse involved full intercourse, anal or vaginal, and it was 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 would generally be appropriate. Finally, in cases where those elements were accompanied by a pattern of severe psychological, emotional and physical brutalization, still higher penalties would be warranted.

[58] D.D. was a case in which an offender was found guilty after a trial of 11 sex-related offences involving four young boys. The sexual abuse took place over a 7 year period where the offender befriended and groomed the boys, aged 5 to 8, for periods of time ranging from 2 to 7 years. The offender "persistently and regularly" engaged the boys in all manner of sexual activity, including "countless" acts of masturbation and oral sex, group sexual encounters involving the offender and several of the boys, as well as attempted and completed acts of anal intercourse. The abuse involved not only a breach of trust, but also threats of violence and extortion, as well as acts of physical violence. I do not want in any way to diminish the serious nature of the sexual abuse perpetrated by R.H. or the significant impact R.H.'s breach of trust in respect of C.S. and later his interactions with C.S.'s girlfriend, S.L.-J. caused; however, it is clear, on the facts, the sexual abuse involved in D.D. was far more serious than in R.H.'s case. In R.H.'s case there were far fewer instances of sexual abuse, over a shorter period of time and without any indications of physical violence or threats of violence. It is my view therefore, the range of sentence set out by Justice Moldaver (as he then was) respecting R.H.'s conduct falls in the mid-single digit range referred to.

[59] The majority of the additional cases provided by the Crown involved sentences imposed after trial, where mitigation for a guilty plea was unavailable:

1. R. v. R.O. 2015, ONCA 814 — A stepfather sexually abused his stepdaughter between the ages of 7 to 11, where the abuse escalated from touching over clothes to forced oral sex and intercourse. R.O. also supplied the victim with drugs and alcohol. After a trial the sentence imposed was 7 years.

2. R. v. F.L., 2016 ONSC 1215 — The victim's stepfather began sexually abusing her when she was 5 or 6 years old, involving the victim touching the accused's penis and his performing oral sex on her, sometimes two to three times a week. On at least two occasions he performed anal intercourse with the victim. The assaults continued until the victim was 14. Sentence imposed after a trial was 8 years.

3. R. v. C.K., 2015 ONCA 747 — The accused was convicted after a trial of sexually assaulting his two grandsons over 10 years, beginning when the younger grandson was 5 years old. The sexual abuse involved fondling, masturbation, oral sex and anal sex. The accused was 72 years old and was sentenced to 10 years, upheld on appeal.

4. R. v. Woodward, 2011 ONCA 610 — The accused was charged with luring, sexual interference and invitation to touching with a 12 year old victim. The accused offered to pay the victim substantial amounts of money and purported to transfer money to an account in exchange for oral sex, masturbation and anal sex. This occurred on one occasion. After trial the accused, who had an extensive criminal record, was sentenced to 6.5 years.

5. R. v. C.C., [2012] No. 2889 (SCJ) — The accused over 4.5 years fondled ex-wife's daughter between ages 7 to 11. He also penetrated her vaginally. He showed her pornography to groom her and told her if she told anyone he would do the same to her younger sister. After a trial he was sentenced to 5 years for sexual interference and 1 year consecutive for possession of child pornography. Total sentence six years.

6. R. v. P.M., 2012 ONCA 162 — The accused forced anal and vaginal intercourse on his daughter when she was 13 to 14 years old, over a 13 month period. He had 1837 images and videos of child pornography on his computer, which included 5 images and 3 videos of his daughter showing the accused sexually assaulting her. During two of the videos the victim can be heard to say, "Daddy please stop" and the accused replied, "Shut up" and "Shut the fuck up." The sentence imposed after a guilty plea was 5 years for the sexual offences and 1 year consecutive for the child pornography offences, which included making and possession of child pornography. This sentence was upheld on appeal. Epstein J. (dissenting) would have imposed a 9 year custodial sentence.

[60] Many of these cases involve more serious sexual abuse on the part of the accused, over longer periods of time and repeated on more occasions, which resulted in sentences in the upper single digit penitentiary range (over 7 years). The two cases that are somewhat similar are those of C.C., where similar conduct after trial led to a 6 year sentence and P.M., where there was a guilty plea and a total sentence of 6 years upheld by the majority.

[61] The defence provided a number of cases as well:

1. R. v. St. Michael, [2011] O.J. No. 2480 (SCJ, Ray J.) — The accused and victim considered themselves to be a couple. The 32 year old accused engaged in sexual intercourse with the victim from age 13 to 15, approximately 15 times and on numerous occasions they performed fellatio and cunnilingus on each other. The accused also videotaped the victim performing fellatio on him. Sentenced to four years for making child pornography and three years concurrent for sexual offences.

2. R. v. R. A, [2017] O.J. No. 1478 (OCJ, Harris J.) — The accused was married to victim's cousin. When victim was 12 years old she went to live with accused and his wife for a short time. After she moved out, the accused and the victim remained friends and he gave her cigarettes and alcohol. When the victim was 14 the accused told her that he loved her and he "French-kissed" her twice. They had unprotected sexual intercourse on two occasions. The accused pleaded guilty and Crown only sought a three year sentence and defence sought a two less a day sentence. The accused was sentenced to three years.

3. R. v. J.M., 2016 ONSC 4837 — The accused was found after a trial to have sexually abused two victims (sisters) during an extended period of time. He was the girls uncle and he abused the first victim between the ages of five and fourteen years by touching her on her breasts, buttocks and vagina, both over and under her clothes. On one occasion he exposed himself to her and put her hand on his penis to masturbate him. He told her not to tell her parents and told her he would give her some money. He abused the second victim between the ages of six and nine years of age by taking her to his room, bending her over his bed and rubbing his penis against her buttocks and vagina while both of them were clothed. The Crown sought a sentence of at least five years and the defence sought a two year less a day reformatory sentence. A 3.5 year penitentiary sentence was imposed as result of the sentencing judge finding exceptional circumstances existed that justified a reduction of sentence that would otherwise have been imposed based on decisions by the Ontario Court of Appeal.

4. R. v. R.L., [2015] O.J. No. 2953 (OCJ, Feldman) — The accused was the uncle of the four victims and the offences occurred over a three to four year period when victims were pre-teens when they were visiting their grandparents home on weekends. The incidents involved kissing, touching breasts, oral sex and digital penetration. Crown sought four year sentence and defence 2.5 year sentence. The sentence imposed after a trial was three years.

5. R. v. A.H., [2013] O.J. No. 5051 (SCJ, Wilson) — 70 year old grandfather sexually abused his three granddaughters over a two year period. The abuse involved touching the breasts and vaginal area, both over and under clothes, kissing and using his tongue, grinding his groin area against his granddaughter while both clothed, groping breasts and vaginal area of another granddaughter when clothed, taking one of his granddaughter's hands placing it on his penis over his clothes and digitally penetrating one granddaughter's vagina on one occasion. The Crown submitted the appropriate sentence was three to four years and the defence submitted a reformatory sentence of 45 days to one year was the appropriate sentence. At the time the minimum sentence for sexual interference was 45 days, which was subsequently amended to one year. The sentence imposed was 2.5 years, which the sentencing judge acknowledged was below the Court of Appeal's range for these types of offences but the sentencing judge took into account the accused's age and language difficulties.

6. R. v. Vanderteems, [1991] O.J. No. 2526 (SCJ, Borins J. (as he then was)) — The accused engaged in sexual touching with two victims under the age of 14, who visited his apartment after school over a period of 16 to 18 months. The accused showed the victims pornographic movies and the sexual touching started with the victims' breasts and back to touching her all over. The accused initially would masturbate himself in their presence and later the victims would rub the accused's penis until he ejaculated. This conduct escalated to the accused performing oral sex on the victims. He had intercourse with one of the victims just prior to the interactions ending. After a trial Justice Borins imposed a penitentiary sentence of three years, which was greater than the Crown's submission. The defence submitted the appropriate sentence would be nine to fifteen months, which was completely rejected by the trial judge.

[62] Many of the cases provided by the defence in my view involved conduct that did not approach the seriousness of the sexual abuse engaged in by R.H. The last case was decided prior to D.D. and Woodward, where the Ontario Court of Appeal set sentencing ranges for sexual offences involving children and addressed the extreme gravity and seriousness of sexual abuse involving children, yet in Vanderteems Justice Borins imposed a penitentiary sentence of three years, which was greater than the sentence submitted by the Crown.

[63] What the cases demonstrate is that there are a wide range of proportionate and fit sentences available depending on the particular facts of each individual case. When all of the cases referred to me are considered, from a low of two and a half years (A.H.) to a high of ten years (C.K.), it is clear that sentencing is an individualized process, there is not a one size fits all and it is not a mathematical or precise science. Imposing a proportionate sentence is a highly individualized exercise, tailored to the gravity of the offence, the blameworthiness of the offender, and the harm caused by the crime (see R. v. M. (C.A.), at para. 92).

[64] The matter of sentencing ranges was addressed by the Ontario Court of Appeal in R. v. Jacko, 2010 ONCA 452, where at paragraph 90, the court held:

Sentencing 'ranges' ...are not immovable or immutable. They are and represent guidelines, of greater or lesser utility depending upon the breadth of the range. Individual cases may fall within or outside the range. To consider a range of sentence as creating a de facto minimum sentence misses the point, ignores the fundamental principle of proportionality... Individual circumstances matter.

See also R. v. D.D., supra, where Moldaver J.A., (as he then was) said the following, at para. 33: "[S]entencing is not an exact science and trial judges must retain the flexibility needed to do justice in individual cases. The suggested ranges are merely guidelines designed to assist trial judges in their difficult task of fashioning fit and just sentences in similar cases" (see also R. v. Lacasse, 2015 SCC 64, at paragraphs 57 to 58 and 60 to 61).

[65] As I indicated previously, the paramount principles of sentencing in cases involving the sexual abuse of children are denunciation and deterrence: denunciation of the despicable conduct of R.H. towards C.S., with whom he was in a position of trust, which continued from an early age for an extended period of time on multiple occasions and then later involved S.L.-J. and a substantial term of incarceration as specific deterrence to R.H., who I find has very little awareness or insight in the seriousness and devastating impact his conduct has had on C.S. and S.L.-J. or his responsibility for his own conduct and general deterrence to others who engage or consider engaging in similar behaviour. This is now statutorily mandated by s. 718.01 of the Criminal Code.

[66] The fact R.H. is able to provide character letters from family and friends, who expressed shock that he was charged and has now pleaded guilty to sexual offences involving children, reflects what has been long recognized by courts – these offences are committed in secret, far away from prying eyes by persons of otherwise good character. Unfortunately, often those who commit such deplorable, deviant, self-gratifying sexual acts upon vulnerable children present as trustworthy and respectable, which reflects the need to denounce such abhorrent conduct.

[67] The evidence established that R.H. groomed C.S. when he was only 10 and gained C.S.'s trust by taking him on interesting outings to sight-see and watch sporting events. R.H. was 35 years C.S.'s senior – he was the adult, C.S. was the child. The sexual abuse began slowly with sleeping in the same bed, to touching and fondling, to oral sex, which was repeated every month or three months over two and a half years and on two occasions anal intercourse by C.S. on R.H. R.H. engaged in this conduct in hotel rooms when he took C.S. on overnight trips. What is most concerning is R.H.'s attempt in his conversations with the probation officer to shift blame, for the most serious sexual abuse – anal intercourse and oral sex, to C.S. and to the 16 year old boy he coached in baseball. It is my view the PSR demonstrates that R.H. completely lacks awareness and insight into the fact the charges he faced were entirely due to his actions and conduct for which he bears the sole and full responsibility, particularly having regard to the fact C.S. and S.L-J. could not consent to the sexual conduct he involved them in.

[68] R.H. advised the probation officer of an earlier sexual "relationship" he had with a 16 year old boy he coached in baseball, justifying his conduct by pointing out the age of consent when he had this relationship was 14 years of age. Of course, he was in a position of trust and authority in respect of this child and was guilty of sexual exploitation. A further disturbing attempt by R.H. to justify this "relationship" was his assertion that "90% was him [the 16 year old] performing oral sex on me…every once in a while, he [R.H.] would reciprocate and I would let him because "I'm a nice guy." R.H. also told the probation officer he would not have acted on his attraction if the 16 year old boy "hadn't come to me." I am not considering this conduct by R.H. as an aggravating circumstance to increase the sentence I impose. I am referring to this conduct as it relates to the level of future risk posed by R.H. towards other young boys. Further, his lack of awareness and insight into his responsibility for the sexual interactions between himself and this 16 year old also raises serious concerns and questions concerning R.H.'s future risk.

[69] R.H. admitted he began to have a sexual attraction toward C.S. when he hit the age of puberty, around 12 years old. He agreed the sexual activities increased over the years and "it got to the point where I just did it without being asked." R.H. blamed C.S. for the" anal intercourse and urinating" as these were things he said he was not interested in and maintained C.S. "made me do it." The probation officer recounted that R.H. would often use this phrase but then correct himself saying, "I keep saying he made me…he didn't…I let him do it." The Agreed Statement of Facts sets out that R.H. manipulated C.S. to engage in sexual activities, putting the responsibility solely on R.H. Yet R.H. told the probation officer that C.S. had "power and utter control" over him. He maintained it was " tough to understand that I'm being punished for being raped …I get it because I'm the adult but it's tough… that's the only part I'm really upset about…that I let a kid rape me, I let him do it ." [Emphasis added] These comments are different from what R.H. told Dr. Abracen about his forcing C.S. to engage in oral sex and anal sex, which is far stronger language than what he says to the probation officer. As I have indicated these comments and beliefs expressed by R.H. raise significant concerns as to his future risk to re-offend.

[70] A further concern was R.H.'s description of the time he was with C.S. as his being "a much happier person…the only time in my life I was happy." I find based on the agreed statement of facts that R.H. was the one who exercised control over C.S. and S.L-J. through the system of penalties and rewards established by R.H. R.H. required C.S. to communicate with R.H. every day. C.S. had to send photos of himself to R.H. every day, between September and November 2017 he was required to send unclothed photos to R.H. Nude images of C.S. were found on a USB stick during a search of R.H.'s residence. R.H. used his cell phone to take pictures of C.S. when they were in hotels. If C.S. forgot to email or say goodnight to R.H. there would be a penalty, which could be worked off by performing sexual acts – each sexual act was worth so many penalty points. R.H. told Dr. Abracen that he "introduced rules to their encounters and the victim would be forced to engage in sexual acts as a way of addressing certain 'penalties.'" [Emphasis added] R.H. told the probation officer he was "sorry for all the bad stuff that happened, but I'm not sorry because he made my life better for a little bit." These statements are particularly concerning because R.H. is referring to a period of time when he was repeatedly sexually abusing C.S.

[71] R.H. told the probation officer "he feels he now knows what to look for, so he is not manipulated into unpleasant activities in the future." R.H. said he has learned a lot through this and knows his trigger points and he will never allow someone to control him again. Again, R.H. is blame shifting – putting the blame on his victim and attempting to justify his conduct and behaviour, which in my view does not bode well in terms of future risk.

[72] R.H.'s comments to the probation officer are troubling and disconcerting when considering his future risk towards children. Further, the blame shifting engaged in by R.H. with the probation officer raises serious questions as to the usefulness and accuracy of Dr. Abracen's two reports respecting R.H.'s future risk given that the Pre-sentence Report was not provided to Dr. Abracen and he did not consider the comments, beliefs and attitudes R.H. expressed to the probation officer in coming to his opinion as to future risk. A further concern relates to R.H.'s disclosure to the probation officer of his prior sexual relationship with a 16 year old youth he coached in baseball. Once again, R.H. placed the blame on this youth for their sexual relationship, as described above. Dr. Abracen noted in his two reports that he did not have any comprehensive official documentation relating to a previous victim that R.H. advised Dr. Abracen was approximately 15 years of age. It is difficult to know if these disclosures by R.H. to Dr. Abracen and the probation officer refer to the same victim or two separate prior victims. Dr. Abracen's two reports do not describe R.H. attempting to shift the blame for his sexual relationships onto these children. The Crown did not seek to cross-examine Dr. Abracen on his conclusions, however, it is my view the comments and attitudes of R.H. towards the victims as related in the PSR reveal serious and significant concerns as to his future risk towards children.

[73] The Crown in her submissions argued R.H. has not shown any genuine remorse for his criminal conduct towards C.S. and S.L.-J. The probation officer addressed the issue of R.H.'s lack of remorse, at pages 9-10:

…He went back and forth between stating that the male victim made him commit some of the offences, and then taking it back and saying he let the victim do it to him…The subject admits he is attracted the to the "young teen look," has had at least two sexual relationships with teen males. He claimed they both initiated the sexual contact between them, and denied searching anyone out who matched this description. Despite this, he appears to have spent much of his free time, placing himself around children. He advised he has worked as a baseball coach, as a school bus driver for special needs children, and doing odd jobs for a large local hockey league.

When speaking of the offences, he blamed the victim, and then would correct himself by saying he let the victim do it. He failed to take full responsibility for his actions and did not believe he could stop any of the activities once they had started. He outlined that he was the adult in the situation, however, did not seem to recognize that the victims were not old enough to give consent.

The subject did not appear to take full responsibility for his actions, using his childhood abuse as an excuse and focused on the male victim's actions, rather than his own. He has placed himself around children for years, while recognizing his attraction to young teens. It is this writer's opinion that, unless the subject is able to change these thought patterns, he will continue to place himself in similar situations in the future.

[74] In R. v. Shah, 2017 ONCA 872, the Ontario Court of Appeal observed that lack of remorse may indicate a lack of insight and responsibility for the offence and may therefore be a relevant factor in considering the risk of re-offending. The court stated, at paras. 8-9:

Lack of remorse is not ordinarily a relevant aggravating factor on sentencing: R. v. Valentini, at para. 82. It cannot be used to punish the accused for failing to plead guilty or for having mounted a defence: Valentini, at para. 83 ; R. v. J.F., 2011 ONCA 220, at para. 84, 105 O.R. (3d) 161 ; aff'd on other grounds in 2013 SCC 12, [2013] 1 S.C.R. 565. Absence of remorse is a relevant factor in sentencing, however, with respect to the issues of rehabilitation and specific deterrence, in that an accused's absence of remorse may indicate a lack of insight into and a failure to accept responsibility for the crimes committed and demonstrate a substantial likelihood of future dangerousness: Valentini, at para. 82 ; R. v. B.P. (2004), 190 O.A.C. 354 (C.A.), at para. 2. [Emphasis added]

[75] It is my view the Crown's argument that R.H. had not shown any genuine remorse was directed to whether R.H. still presented a serious future risk towards children, as opposed to arguing his lack of remorse was an aggravating circumstance. As I have expressed, it is my view R.H.'s comments and attitudes and attempts at shifting the blame for his conduct onto his victims does raise a serious concern in respect of his future risk of re-offending. The outstanding sexual offences facing R.H., which are before Justice Pringle for sentencing in my view also address this concern respecting future risk. It is my view Dr. Abracen's opinion that R.H. is of an "average" risk to re-offend does not equate with a low risk to re-offend. At best, it is my view, considering the whole of the evidence touching on this issue, that there is a moderate risk R.H. will re-offend in the future. I agree with the probation officer's opinion that unless R.H. can change his thought patterns there is a risk R.H. will place himself in similar situations in the future with similar results in terms of his sexually abusing children. This was also reflected in Dr. Abracen's first report (Exhibit 4) where he states there is evidence of cognitive distortions that support sexual offending by R.H., which can be addressed in a sexual offender treatment program, which would likely serve to reduce his risk of future offending (see p. 4).

[76] In R. v. Woodward, supra, at para. 76, Justice Moldaver (as he then was) emphasized a sentencing judge's focus in this type of case must be on the harm caused to the child by the offender's conduct and the life altering consequences that flow from it, as evidenced by the victim impact statements filed in this case. In R. v. D.M., 2012 ONCA 520, at para. 44, Feldman J.A., while holding sentencing is always an individualized process of decision-making, held:

where there is prolonged sexual abuse and assault of a child, including penetration, by an adult in a position of trust, the minimum sentence will be five or six years in the penitentiary.

[77] Further, Justice Moldaver (as he then was) in Woodward, summarized the relevant considerations and principles from D.D., supra, at paras. 34-38, where sexual offenders who regularly engage in sexual abuse of a child over an extended period of time are being sentenced:

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; and (iii) 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.

[78] Those concerns are premised on the fundamental message in D.D., at para. 45:

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!

[79] The defence argued that the "words and language" together with the sentencing range identified by the Ontario Court of Appeal in R. v. D.D., supra, (noted above) has not been followed by sentencing judges in either the Ontario Superior Court or the Ontario Court of Justice. As I expressed earlier, many of the sentencing decisions referred to by the defence involved conduct less serious than in the case at bar, or exceptional circumstances were identified by the sentencing judge who recognized the sentence imposed was below the sentencing range established by the Court of Appeal. Of course, as I have set out above, sentencing ranges are just guidelines and not hard and fast rules or de facto minimum sentences that must be followed regardless of the particular unique circumstances of an accused or the offence. A further reality is that where sentencing decisions involving sexual abuse of children were appealed to the Ontario Court of Appeal by the defence or Crown, the sentencing ranges for specific conduct and the applicable sentencing principles established by R. v. D.D., have been repeatedly upheld as evidenced in the following cases, to cite just a sampling: R. v. Woodward, supra ; R. v. I.F., 2011 ONCA 203 ; R. v. D.M. supra ; R. v. P.M., 2012 ONCA 162, at paras. 43-47 ; R. v. R.O., 2015 ONCA 814, at para. 60 ; R. v. J.S., 2018 ONCA 675, at paras. 55-57 ; R. v. S.C., 2019 ONCA 199; and recently in R. v. Stuckless, [2019] O.J. No. 3210 (C.A.), at paras. 55-56, 60.

[80] The above-noted Court of Appeal cases reflect that where sentences of five years or more were imposed, one or more of the following aggravating circumstances were present: (a) sexual or anal intercourse, (b) oral sex, (c) incest, (d) more than one victim, (e) grooming of the victim, (f) other acts or threats of physical violence to obtain compliance and keep the abuse secret, (g) a previous criminal record for sexual abuse, (h) a breach of trust or authority, (i) significant impact on the victim(s) or (j) making or possessing or accessing child pornography. In this case the following aggravating circumstances were present: anal intercourse, oral sex, more than one victim, grooming of the victim, a breach of trust or authority, the impact of the sexual abuse to the victims is significant and making and accessing child pornography.

[81] Having regard to the aggravating and mitigating circumstances in this case and based on the direction provided by the Ontario Court of Appeal respecting cases involving sexual abuse by sexual predators, which aptly describes R.H., towards vulnerable children, an appropriate global sentence is six (6) years in the penitentiary. I am mindful that R.H. has no criminal record and this is the first custodial sentence to be served by him, however, anything less in my view would not properly address the principles of denunciation and deterrence and the need to separate sexual predators from society for society's well-being and the well-being of our children.

[82] In my view a global sentence of six (6) years in the penitentiary appropriately denounces the despicable conduct R.H. engaged in towards these two children under the age of 18 and will provide an effective deterrent to other perpetrators in positions of trust who will know the heavy price they must pay for violating our community's most valued and vulnerable assets, children, which is a significant loss of liberty. This sentence should also bring home to R.H., who in my view has little or no insight into the seriousness of his conduct and will promote a much needed sense of responsibility in him and an acknowledgement of the harm he caused to C.S., who trusted him and C.S.'s girlfriend, S.L.-J., who was trying to protect C.S. from R.H.'s abuse by taking C.S.'s place. It is also my view this sentence appropriately takes into account the mitigating circumstances present in this case and will afford R.H. an opportunity during his incarceration to obtain the sexual offender treatment he requires to reduce the risk of his re-offending in the future, which, if he takes advantage of such treatment, will bode well for his rehabilitation.

[83] It is my view the nine (9) year penitentiary sentence submitted by the Crown was excessive when the factual circumstances of this case are compared to many of the decisions the Crown referred me to where a similar penitentiary sentence was imposed. As indicated, I do not want in any way to diminish the serious nature of the sexual abuse by R.H. or the significant impact his breach of trust in respect of C.S. and his conduct towards S. L.-J. in this case caused; however, it is clear, on the facts, the sexual abuse involved in D.D. was far more serious than in R.H.'s case. Further, the majority of the cases provided by the Crown involved sentences that were imposed after a full trial where there was no mitigation as a result of a guilty plea and acceptance of responsibility. R.H. pleaded guilty to the charges and spared both victims from testifying, which is a significant mitigating circumstance.

[84] It is my view the three to four (3-4) year sentence submitted by the defence would be wholly unfit and would not address the significant seriousness and gravity of these offences, together with R.H.'s high moral culpability and blameworthiness, having regard to his position of trust and authority in respect of C.S., as well as the harm and impact caused to the two victims as evidenced by their victim impact statements. I find on the facts before me that R.H. used C.S., a vulnerable child, for his sexual gratification, which can only be viewed as a crime depicting the worst of intentions. It should be noted the defence position harkens back to R. v. B.(J.), [1990] O.J. No. 36 (C.A.), where an accused in loco parentis with a child has sexual/anal intercourse with that child. That case was prior to the amendments to the Criminal Code in s. 718.01 and s. 718.2(a)(ii.1) and (iii) and the decision in R. D.D., supra. Those new provisions have subsequently been found to be much more consistent with the guidelines expressed in D.D. rather than the range set out in B.(J.): see R. v. P.M., 2012 ONCA 162, in that regard.

[85] The making and accessing child pornography offences are separate and distinct offences because they involve the further exploitation and victimization of C.S. and S.L-J. when they were made and accessed and each time they are viewed. Such conduct must be denounced in the strongest terms. I intend to impose a consecutive term of imprisonment for these offences, concurrent to each other but consecutive to the sexual interference sentence, notwithstanding my considering it as an aggravating factor with respect to the sexual interference offence. The two child pornography offences also relate to S. L.-J., C.S.'s girlfriend, in respect of the photographs she sent R.H. There was no evidence that R.H. distributed the images he obtained from C.S. or S.L.-J. or made himself and this in my view reduces the gravity of these offences to some extent. The sentence I am imposing respecting these two offences has been moderated from the sentence I would have imposed, however, having regard to the principle of totality.

[86] Consequently, I sentence R.H. to five (5) years for the sexual interference offence involving C.S. and a one year consecutive custodial sentence for the child pornography offences, which are concurrent to each other. The total penitentiary sentence imposed is six (6) years.

[87] In addition, in my view the following ancillary sentencing orders are appropriate in the circumstances of this case.

[88] First, pursuant to s. 487.051(1) of the Criminal Code, I make an order requiring that samples of bodily substances be taken from the accused for purposes of forensic DNA analysis. The sexual offences committed by the accused are "primary designated offences" as defined in s. 487.04 (a) of the Criminal Code and, accordingly, such an order is statutorily mandated in the circumstances.

[89] Second, as the accused has been convicted of two "designated offences," pursuant to the combination of ss. 490.012(1) and 490.013(2.1) of the Criminal Code I make an order requiring the accused to comply with the Sex Offender Information Registration Act, S.C. 2004, c. 10, for life.

[90] Third, pursuant to s. 161(1) and (2) (b) of the Criminal Code, I make an order prohibiting the accused, for the rest of his life, from:

(a) attending any 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, school ground, playground or community centre;

(a.1) being within 500 metres of any dwelling house where either of the two complainants are known to ordinarily reside;

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

(c) having any contact – including communicating by any means – with a person who is under the age of 16 years, unless the offender does so under the supervision of a person whom the court considers appropriate; and

(d) using the Internet or other digital network, unless the offender does so in accordance with the conditions set by the court, including, but not limited to: any digital medium for the purpose of accessing, viewing, downloading, sharing, or otherwise any material that meets the definition of pornography and/or obscenity and not to participate in file sharing by any means.

I have serious concerns as to the future risk R.H. poses to children under the age of 16 years and this is why I am imposing this prohibition for life.

[91] If there are other terms under s. 161 that either the Crown or the defence want included, or specific wording, I will hear submissions.

[92] Fourth, pursuant to s. 743.21(1) of the Criminal Code, I make an order prohibiting the accused from communicating, directly or indirectly, with either of the two complainants or any member of their immediate families during his custodial sentence.

[93] Fifth, pursuant to s. 109(1) (a) of the Criminal Code, there shall be an order prohibiting the accused from the possession of any firearm, cross-bow, prohibited firearm, restricted firearm, prohibited device, ammunition, prohibited ammunition and explosive substance for a period of ten years after the accused is released from the period of imprisonment imposed today.

[94] This was a difficult sentencing where the Crown and defence were quite far apart in their respective positions on the appropriate sentence. I want to express my appreciation to counsel for their submissions and assistance.

Released: December 17, 2019

Signed: Justice Peter C. West