WARNING

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

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

486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

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

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

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

Ontario Court of Justice

Date: 2022 11 17 Court File No.: Pembroke 21-0986

BETWEEN:

HIS MAJESTY THE KING

— AND —

T.A.

Before: Justice J.R. RICHARDSON Heard on: February 25; October 20, 2022 Reasons for Sentence released on: November 17, 2022

Counsel: Teresa James...................................................................................... counsel for the Crown Mark Huckabone............................................................................................. counsel for T.A.

RICHARDSON J.:

Introduction

[1] What is the appropriate sentence for a 70-year old offender who committed the offence of Sexual Interference against his step-granddaughter? That is the issue I must decide in this case. The Sexual Interference consisted of over-the-clothes touching. The accused has a prior record for Sexual Assault on an adult female. He also has been assessed as having a low risk to reoffend.

[2] Do I sentence him to three years in the penitentiary (as would seem to be mandated by the Supreme Court’s decision in R. v. Friesen) or by virtue of the availability of treatment and probation should he be sentenced to the maximum reformatory sentence to be followed by the maximum probationary disposition.

The Facts

[3] On February 25, 2022, T.A. appeared before me and entered a plea to Sexual Interference in relation to A.S. contrary to section 151 of the Criminal Code.

[4] The Crown proceeded by Indictment.

[5] A.S. is the step-granddaughter of T.A. In July 2021, A.W., who is A.S.’s mother, contacted Police to report a sexual assault on her daughter by T.A. A.S. revealed that T.A. would have her sit on his lap. He would rub her thighs and then proceed to rub higher until he was rubbing her vaginal area. This touching took place over her clothing. He would also move her on his lap so that she was rubbing against his penis over her clothing. On another occasion, he took her to her bedroom and tried to coax her to touch his penis over the clothing. He also tried to coax her to the bed. She did not do either. On another occasion, he rubbed her shoulder over her clothing. He moved his hand to her breasts and continued rubbing. She was nine or ten years of age. The last occasion occurred when he picked her up from school. It is alleged that he rubbed her thigh over the top of her clothing as he drove her home.

[6] All of these facts were admitted as essentially correct by T.A.’s counsel.

[7] I ordered a Pre-Sentence Report and I also made an order under section 21 of the Mental Health Act that the accused undergo a Sexual Behaviours Assessment at the Royal Ottawa Hospital.

[8] The sentencing was argued on October 20, 2022.

The Victim Impact Statements

A.S.

[9] Exhibit 5 is the Victim Impact Statement of A.S.

[10] A.S. indicated that she suffers from flashbacks, feelings of guilt and shame, poor self (body) image, and difficulty speaking up for herself. She indicated that she misses regular interaction with her grandmother, whom she has not spoken with since the charges arose. She had difficulty in one of her school subjects because her teacher reminded her of the accused. She has nightmares of T.A. chasing her, and fears that he will hurt her for disclosing what happened to her. She avoids places she went with T.A. She misses some social events and activities that she now isolates herself from because they remind her of T.A.

[11] She did not believe that anyone would believe her. She believed that “they” would get mad at her for disclosing. She drew me a picture to help explain these feelings.

A.W.

[12] Exhibit 4 is the Victim Impact Statement of A.W.

[13] A.W. is the mother of A.S. A.W. is the daughter of A.A., who is T.A.’s second wife.

[14] A.W. described experiencing nightmares and night terrors which are vivid and scary. She indicated that what has happened consumes her mentally and physically. She stated that what has happened will change her forever. She feels a deep breach of trust and consequently she constantly wonders who else is “fooling” her and she is extremely paranoid and distrustful.

[15] She stated, “How did I not see this as a mother?!? It makes me feel like a failure, it makes me question my judgment, my choices…”

[16] A.W. also advised that she has seen significant change in A.S.: “I watched my daughter go from being a free-spirited individual who was full of life and love to someone who is afraid to be touched, to love and be loved.”

[17] She summed up, “I do not know how my family and I will ever be the same or repair any of the damages that has been created and caused by I have prayed many hours to try and find solace.”

[18] I would be remiss if I did not point out how moving A.W.’s delivery of her Victim Impact Statement was. I, at first, thought that she was not going to be able to deliver it because she looked up at me, was overcome with emotion and was afraid to speak. To accommodate her, I stepped down from the dais in the courtroom so that she was looking down at me rather than up and that seemed to assist her in delivering her Victim Impact Statement. Despite the fact that as an impartial observer, I question the wisdom of some decisions A.W. appears to have made, such as blaming A.A. and ostracizing A.A. from her family, her hurt and A.S.’s hurt is overwhelming and seemingly insurmountable.

The Record

[19] Exhibit 6 is a record of a Court-martial proceeding under the National Defence Act.

[20] While a member of the Canadian Forces, T.A. was court-martialled for sexually assaulting one of his subordinates. He was fined and placed on the Sex Offender Registry. It is agreed that this constitutes a criminal record.

[21] I note that according to Exhibit 6, T.A. was found guilty. He originally pleaded not guilty.

[22] The facts of this conviction are discussed in greater deT.A.il below.

The Pre-Sentence Report

[23] Exhibit 1, a thorough Pre-Sentence Report, was prepared by Michelle Levasseur of the Pembroke Probation and Parole office.

[24] T.A. is one of five children. His father was a member of the Canadian Forces; his mother was nurse. His mother is said to have struggled with undiagnosed mental health issues which affected each one of their children.

[25] T.A. completed high school.

[26] T.A. enlisted in the military in 1973. He met his first wife and together they had three children. He retired from the regular force of the military in 1998, but remained a member of the Armed Forces Reserve.

[27] After retirement from the regular force, T.A. went to work for a defence contractor. He retired from that employment in 2017. In that position, he worked his way up to the position of manager.

[28] He and his first wife separated in 2001. He admitted that he was probably verbally abusive towards his children and his wife was no longer willing to tolerate this. He admitted that he was not faithful to her and that also contributed to the breakdown of the relationship.

[29] He became depressed but came out of the depression as a result of therapy.

[30] His relationship with two of his children was strained for a while but is said to be on the road to recovery.

[31] T.A. has five grandchildren. According to the report, he has frequent contact with them.

[32] After separation from his first wife, he started a relationship with A.A. in 2003. They moved in together in 2004. A.A. had children from a previous marriage, which included her daughter A.W.

[33] T.A.’s relationship with A.A. ended once he was charged. Although this was the catalyst for separation, it appears that the relationship was not without problems. The parties had drifted apart.

[34] A.A. told the author of the Pre-Sentence Report that as a result of T.A.’s offence, there has a been a rift between her and A.W. A.W. apparently accuses A.A. of not protecting A.S. from T.A.

[35] After his separation from A.A., T.A. moved in with his brother J.A.

[36] He does not have issues with substance abuse.

[37] He does not have anyone who he considers to be a real friend.

[38] Collateral contacts reported that they viewed T.A. as a womanizer. He does not observe appropriate boundaries with women. With respect to his court-martial, the author of the Pre-Sentence Report noted that he minimizes the impact of his actions and the victim’s reasons for disclosing.

[39] T.A. acknowledges his offences. He can’t explain why he committed them other than acknowledging that it was for sexual gratification.

The Section 21 Report

[40] T.A. was examined by Dr. J. Paul Fedoroff of the Royal Ottawa Hospital. His report was filed on consent as Exhibit 2.

[41] He explained his involvement in his offence in this way: “I let my hand crawl over to her vagina, nothing more happened. [1] ” He also added, “I stopped when she was 10 and she indicated to me that she did not want this”. With respect to the allegation that he touched the victim’s leg, he stated, “I honestly don’t remember ever petting her legs, but I like to give hugs and stuff like that. I may have touched her leg when I picked her up from school but I have a hard time remembering this.” [2]

[42] With respect to sexual behaviours assessment or therapy, he indicated his sister, who is a psychiatric nurse, suggested therapy after he was Court-martialled but, “I never bothered to do it, and she did not check up me. She even said that she felt bad for not following up about it.” [3] He further stated with respect to whether he has a psychiatric problem:

Probably yes. I’ve been doing a lot of thinking since last July [2021]. Before the upbringing, I don’t know if I really knew what love is or how to do it. I guess ever since I was young there was the challenge of winning a woman rather than holding onto one. Because I’ve been married twice – and it’s not that I don’t love my current wife, because I do, but this situation made it so we won’t be staying together. Sexually, I tend to lose interest when it’s permanent. Therapy will hopefully help me with that. [4]

[43] When Dr. Fedoroff asked T.A. to explain why he committed these offences, he stated:

I thought about this a lot. Why would I have ever done that? The only thing I can think of is that during that time my wife was going through menopause and her sexual desire went down to 0. We’ve talked about it and her doctor told us that we’ll just have to wait it out. I told her that I’ve never felt like less than a man before. I don’t know if I’m looking for somebody to basically have a sexual desire for me, and maybe that’s why I did that? Because mentally I knew it was wrong, and as soon as she stopped me (my step-granddaughter) I knew it was wrong, I stopped it and did not try to push it further. [5]

[44] T.A. was more forthcoming with Dr. Fedoroff about his childhood than he was with Ms. Levasseur. To Dr. Fedoroff he disclosed sexual abuse by his brother between the ages of 10 and 12. He stated that this was simulated sexual intercourse (but without penetration) and that they may have tried oral sex once.

[45] He also reported to Dr. Fedoroff the facts in relation to his sexual assault conviction at court-martial. He stated that he was 58 and a Captain and the victim was 21 or 22 and a Corporal. They were playing the ball cap game (which I understand to be a drinking game) and the victim invited him over to her house to play this anytime. He stated that the victim complained that her legs were sore from exercising. He started to massage her legs and his hands touched her vagina. She told him that she did not hurt there and he laughed it off. He did it again and also touched her breast area over her clothes. He saw her the next day and apologized. He indicated that he believes that she reported the incident because he was happy and jovial with other members of the unit.

[46] Dr. Fedoroff asked T.A. about what he considered his most serious offence. He replied:

Sexual interference with my step-granddaughter because I never really assaulted her. And compared to the situation from the military, this one is the worst because she is a child. [6]

[47] Despite being hit by a car at some point in his life, he did not suffer any permanent injury. He has had his left hip replaced. He is taking Sertraline, which is an anti-depressant. He also takes a herbal remedy as an anti-inflammatory. He tried to kill himself in 2021 by hitting himself in the head with a hammer but he realised that he did not want to do it and stopped. He told his wife about it. Other than his assessment and therapy, he has not been hospitalized for a mental health problem.

[48] He admits to masturbating once every two weeks. He uses pornography. He has not had intercourse for five and a half years. He has been to strip clubs but not on a regular or frequent basis. He paid a prostitute once for sex when he was in his late 20s or early 30s.

[49] He reported decreased sexual desire in the past five years. He had increased sexual desire during his mid 40s, but that is no longer a problem. He reports that “even” when he is using pornography he loses interest 50% of the time.

[50] With respect to various psychological questionnaires and instruments used to assess risks, Dr. Fedoroff noted that T.A. “has a tendency to present himself in an overly positive light and tends to minimize his own personal shortcomings.” [7]

[51] I was troubled by the fact that he endorsed four of 38 statements endorsed by known child molesters:

a) Some men sexually assaulted children because they really thought the child would enjoy how it felt. b) Children who have been involved in sexual activity with an adult will eventually get over it and go on with their lives. c) Some young children are much more adult-like than other children. d) If most child molesters hadn’t been abused as a child, then THEY probably would never have molested a child. [8]

[52] Although this is no-doubt a good score, the continued endorsement of myths about child sexual assault and victimology is, in my view, concerning.

[53] He scored low on the Static-2002R, and the HCR-20 V3 risk assessment tools. [9]

[54] With respect to phallometric testing, T.A. was noted to respond to “coercive sexual scenarios involving adult women” [10] , “sexual arousal to female children” [11] , and “sexual arousal to male children” [12] .

[55] Overall, although diagnosing that T.A. meets the criteria for “Pedophilia” in the DSM-5, Dr. Fedoroff opined that he is in the low risk to reoffend. I note that despite arousal to coercive sexual scenarios involving adult women, Dr. Fedoroff did not diagnose T.A. with paraphilia.

[56] With respect to treatment options available in sentencing, Dr. Fedoroff opined that the Ontario Correctional Institute (“OCI”) would be the best option for him. Dr. Fedoroff noted that individuals who are scored as a low risk are not offered treatment in the federal (penitentiary) system “because the CSC believes that low risk offenders become high risk offenders if they are grouped together with high risk offenders while in custody.” [13]

Letter of Support from Royal Ottawa Health

[57] Exhibit 3 is a letter from Heather Tamai-Feeley, a Social Worker employed by the Royal Ottawa Hospital. The letter was filed on consent. In her letter, Ms. Tamai-Feeley indicates that T.A. receives one-on-one psychotherapy with Dr. Fedoroff. He also participates in Sexual Behaviour Clinic group therapy on Tuesdays. She opined that he should receive a sentence that allows him to continue treatment.

Crown’s Position

[58] Crown counsel submitted that a sentence is in the Penitentiary Range is appropriate. The Crown stated that initially, its position was three to five years in the Penitentiary. However, given the mitigating factors that the Crown acknowledges are present in this case, including the fact that the accused has submitted to treatment, the Crown ultimately submitted that a sentence at the three-year mark was appropriate.

[59] With respect to the Sexual Behaviours Assessment, the Crown expressed concern about whether, given some of his responses to Dr. Fedoroff, T.A. truly had insight into his offending behaviour. On this basis, the Crown wondered whether the guilty plea should have the mitigating effect. In fairness, the Crown conceded that he had continued with counselling and appeared to be making progress. This, the Crown says, is central to the issue in this case – whether T.A. should receive a sentence that allows for treatment. As I have set out below, I share many of these concerns.

[60] The Crown agreed that T.A.’s case presents the Court with a conundrum given the lack of treatment options for him at the Penitentiary and the fact that a Federal Sentence may result in the offender serving less time in custody and being under supervision for a shorter period than he would receive if the Court acceded to the Defence submission for a maximum reformatory and maximum probationary period.

[61] The Crown filed a casebook that included Friesen, J.(T.), Lloyd, J.C., Green, P.H. and R.N. that supported the position advanced. I have summarized and considered these cases below.

Defence Position

[62] Defence counsel argued for the maximum reformatory sentence followed by the maximum probationary period.

[63] Defence counsel advised me that his client is now 70 years old. He has been living with his brother for 14 months as he and A.A. are separated. His three children are all in their 40s. He wishes to continue with counselling. There is a significant opportunity for rehabilitation on his part. The Sexual Behaviours Assessment and the letter from the Royal Ottawa supported the proposition that he was imminently treatable. He agreed with the Crown’s submissions regarding the sentencing dilemma posed by this case – i.e. whether he should receive a penitentiary or reformatory sentence.

[64] He argued that the best sentence was the reformatory sentence because it allowed for treatment. He also submitted that Friesen stands for the proposition that more significant sentences need to be served for these offences. He forcefully argued that in this case, the reformatory sentence was in fact more significant.

[65] He disagreed with some of the Crown’s submissions with respect to minimization on the part of T.A. With respect to the fact that T.A. may present himself in a more positive light, Defence counsel indicated that this is something that should be expected, given the nature of the exercise. With respect to the issue of minimization, Defence counsel pointed out that T.A. was open and he discussed all of the incidents with Dr. Fedoroff. This was not a case where T.A. was resiling from responsibility.

[66] Defence submitted that T.A. will follow any direction that the Court imposes.

[67] With respect to victim impact, Defence counsel acknowledged that A.S. and A.W. were betrayed. He rightly pointed out that the effects of sexual assault on children were well known and recognized by appellate courts before [Friesen] [14] . What was new about Friesen, he submitted, was the fact the Supreme Court indicated that sentences for these offences must increase.

T.A.’s Address to the Court

[68] T.A. told me that through the treatment that he has had, he has come to the realisation of exactly how much harm his actions have caused. He stated that this realisation is much stronger than it was when the incident happened. He apologized to A.S., A.W. and A.A. for the “betrayal of trust that I invoked on that family.” He added, “I can’t say why I did it, but I did do it and for that I am truly sorry.”

Analysis

Friesen: Sentences for Sexual Offences Against Children Must Go Up

[69] In R. v. Friesen, the Supreme Court of Canada sent:

…a strong message that sexual offences against children are violent crimes that wrongfully exploit children’s vulnerability and cause profound harm to children, families, and communities. Sentences for these crimes must increase. Courts must impose sentences that are proportional to the gravity of sexual offences against children and the degree of responsibility of the offender, as informed by Parliament’s sentencing initiatives and by society’s deepened understanding of the wrongfulness and harmfulness of sexual violence against children. Sentences must accurately reflect the wrongfulness of sexual violence against children and the far-reaching and ongoing harm that it causes to children, families, and society at large. [15]

Friesen: Focus on the Actual and Potential Physical and Psychological Harm Suffered by the Victim and Her Family and Caregivers

[70] In ushering a new era in with respect to the sentencing of offenders who sexually abuse children, Friesen set out the following principles in support of its direction that sentences should increase:

a) “Sexual violence against children is thus wrongful because it invades their personal autonomy, violates their bodily and sexual integrity and gravely wounds their dignity” [16] b) “Personal autonomy refers to a child’s right to develop to adulthood free from sexual interference and exploitation by adults” [17] c) “[A]dult/youth sexual relationships are inherently exploitive” by reason of the lack of maturity judgment and experience of children.” [18] d) The focus on society’s view of these crimes has shifted from sexual propriety to sexual integrity. This “…enables a greater emphasis on violations of trust, humiliation, objectification, shame and loss of self-esteem rather than simply, or only, on deprivations of honour, chastity, or bodily integrity….” “This emphasis on personal autonomy, bodily integrity, dignity, and equality requires courts to focus their attention on emotional and psychological harm, not simply physical harm. Sexual violence against children can cause serious emotional and psychological harm that may often be more pervasive and permanent in its effect than any physical harm” [19] e) “Sexual violence can interfere with children’s self-fulfillment and healthy and autonomous development to adulthood precisely because children are still developing and learning the skills and qualities to overcome adversity. For this reason, even a single instance of sexual violence can “permanently alter the course of a child’s life”” [20] f) “Sexual violence causes additional harm by damaging their relationships with their families and caregivers. Because much sexual violence against children is committed by a family member, the violence is often accompanied by breach of a trust relationship. If a parent or family member is the perpetrator of the sexual violence, the other parent or family members may cause further trauma by taking the side of the perpetrator and disbelieving the victim.” [21] g) “Children may lose trust in the communities and people they know. They may be reluctant to join new communities, meet new people, make friends in school or participate in school activities.” [22] h) “The ripple effects of sexual violence can make the child’s parents, caregivers and family members secondary victims who also suffer profound harm as a result of the offence. Sexual violence can destroy parents and caregivers’ trust in friends, family and social institutions and leave them feeling powerless and guilty. The harm to parents’ relationships with their children can also be profound. For instance, children can react to sexual violence by shutting their parents out of their lives.” [23] i) “There is broader harm to the communities in which children live and to society as a whole. Some of these costs can be quantified such as the social problems that sexual violence against children causes, the costs of state intervention, the economic impact of medical costs, lost productivity, and treatment for pain and suffering. In particular, children who are victims of sexual violence may be more likely to engage in sexual violence against children themselves when they reach adulthood. Sexual violence against children can thus fuel a cycle of sexual violence that results in the proliferation and normalization of the violence in a given community. In short, the costs that cannot be quantified are also profound.” [24] j) “There is an innate power imbalance between children and adults that enables adults to violently victimize them. Because children are a vulnerable population, they are disproportionately the victims of sexual crimes.” [25] k) “Children are most vulnerable and at risk at home and among those they trust.” [26] l) “Sexual violence also has a disproportionate impact on girls and young women.” [27]

[71] I pause to observe that the facts that I have heard, having particular regard to the Victim Impact Statements of A.S. and A.W. that are before me, and the information in the Sexual Behaviours Assessment of T.A. that sets out that he himself may have been a victim of sexual violation when he was a child, gives embodiment to every one of the principles I have cited above from Friesen.

[72] The fundamental principle in sentencing is finding the right balance between the gravity of the offence and the degree of responsibility of the offender. No two cases are alike. Sentencing is an individualized and delicate part of the criminal law process.

[73] With respect to the “gravity of the offence”, in Friesen, the Supreme Court of Canada stated that “…courts must recognize and give effect to (1) the inherent wrongfulness of these offences; (2) the potential harm to children that flows from these offences; and, (3) the actual harm that children suffer as a result of these offences”. [28]

[74] With respect to “inherent wrongfulness” the Supreme Court noted that any physical contact of a sexual nature by an adult against a child is always wrong, “even if it is not accompanied by additional physical violence and does not result in physical or psychological injury.” [29]

[75] On the topic of “potential harm” the Supreme Court observed that there are two categories of potential harm, “harm that manifests itself during childhood and long-term harm that only becomes evident during adulthood…… These forms of harm can be so profound that children are robbed of their youth and innocence. The following list of recognized forms of harm that manifest themselves during childhood make this clear:

These effects include overly compliant behaviour and an intense need to please; self-destructive behaviour, such as suicide, self-mutilation, chemical abuse, and prostitution; loss of patience and frequent temper tantrums; acting out aggressive behaviour and frustration; sexually aggressive behaviour; an inability to make friends and non-participation in school activities; guilty feelings and shame; a lack of trust, particularly with significant others; low self-esteem; an inability to concentrate in school and a sudden drop in school performance; an extraordinary fear of males; running away from home; sleep disturbances and nightmares; regressive behaviours, such as bedwetting, clinging behaviour, thumb sucking, and baby talk; anxiety and extreme levels of fear; and depression. [30]

[76] With respect to potential long-term harm, the Supreme Court stated that the following harms may arise during adulthood:

a) Child victims may have difficulty forming a loving, caring relationship with another adult. b) Children who are victims are sexual violence are more likely to engage in sexual violence against children as adults. c) Child victims are more likely to struggle with substance abuse, mental illness, post-traumatic stress disorder, eating disorders, suicidal ideation, self-harming behaviour, anxiety, depression, sleep disturbances, anger, hostility and poor self- esteem as adults. [31]

[77] With respect to actual harm, the Supreme Court stated that victim impact statements usually provide the best evidence of the actual harm suffered by the child and parents and caregivers of the child [32] .

[78] Once again, I pause to observe that in this case, many of what the Supreme Court characterized as potential harms, have already crossed the threshold to actual harm in this case.

[79] With respect to moral blameworthiness of offenders, the Supreme Court stated, “Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable.” [33]

Friesen: What are the Underlying Attitudes of the Offender?

[80] The Supreme Court also directed sentencing judges to give “…proper weight… to the offender’s underlying attitudes because they are highly relevant to assessing the offender’s moral blameworthiness and to the sentencing objective of denunciation.” [34]

Friesen: Sentencing Judges Retain Flexibility but must respect Parliament’s intention to Punish Offences Against Children More Severely Mid-Single Digit Penitentiary Sentences are the Norm

[81] The Supreme Court made it clear that sentencing judges must not, however, disregard mitigating factors, including the fact that “sexual assault and sexual interference are broadly-defined offences that embrace a wide spectrum of conduct” and relevant “personal circumstances” of the offender. [35]

[82] With respect to the range of sentence to be imposed, the Supreme Court noted that sentencing judges must respect and “give effect to” [36] the fact that Parliament’s decision to increase the maximum sentences for offences against children “shows that Parliament wanted such offences to be punished more harshly” [37] .

[83] In enacting section 718.01 of the Criminal Code, Parliament also prioritized the sentencing objectives of denunciation and deterrence in cases of sexual offences against children. While this prioritization by Parliament does not render other sentencing principles, such as rehabilitation, moot, but it does significantly limit a sentencing judge’s discretion “such that it is no longer open to the judge to elevate other sentencing objectives to an equal or higher priority.” [38]

[84] Thus, the Supreme Court directed as follows: “mid-single digit penitentiary terms for sexual offences against children are normal and that upper-single digit and double-digit penitentiary terms should be neither unusual nor reserved for rare or exceptional circumstances.” Despite this, the Court stated that “judges must retain the flexibility needed to justice in individual cases.” [39]

Friesen: What About Rehabilitation

[85] The Supreme Court then went on to comment on various factors that sentencing judges have looked to in crafting an appropriate sentence. With respect to intersection between rehabilitation and likelihood to reoffend, the Supreme Court noted:

The offender’s likelihood to reoffend is clearly also relevant to the objective of rehabilitation in s. 718 (d) of the Criminal Code. Courts should encourage efforts toward rehabilitation because it offers long-term protection (Gladue, at para. 56). Rehabilitation may also weigh in favour of a reduced term of incarceration followed by probation since a community environment is often more favourable to rehabilitation than prison (see Proulx, at paras. 16 and 22). At the same time, depending on the offender’s risk to reoffend, the imperative of providing immediate and short-term protection to children may preclude early release. In these cases, efforts at rehabilitation must begin with such treatment or programming as is available within prison (see [R. v. R.M.S. (1997), 92 B.C.A.C. 148, at para. 13] [40]). In some cases, the only way to achieve both short-term and long-term protection of children may thus be to impose a lengthy sentence (see [R. v. Gallant, 2004 NSCA 7, 220 N.S.R. (2d) 318, at para. 19] [40], per Cromwell J.A., as he then was).

[86] I pause here to observe that the sentencing dilemma posed in this case is quite the opposite. T.A. has been characterized by a forensic psychiatrist as having a low risk to reoffend. Consequently, if I impose the sentence sought by the Crown, T.A. will go to a penitentiary where, given the risk level he poses, it is unlikely that he will receive any treatment, no matter how long his sentence his. If I impose the sentence sought by Defence, T.A. will go to a Reformatory where he will receive treatment and additionally, I can impose a significant period of probation to follow his sentence with terms that would require him to continue with the kind of treatment he was receiving while on bail.

Friesen: Breach of Trust Remains an Aggravating Factor

[87] The existence of breach of trust is also “likely to increase the harm to the victim and the gravity of the offence” [41] , and “….all other things being equal, an offender who abuses a position of trust to commit a sexual offence against a child should receive a lengthier sentence than an offender who is a stranger to the child.” [42]

Friesen: The Duration and Frequency of the Sexual Violence Can be an Aggravating Factor

[88] The duration and frequency of the sexual violence is an important factor. Repeated and prolonged assaults increase the offender’s degree of responsibility will attract a higher sentence. [43]

Friesen: The Nature and Degree of the Physical Interference the Child was Subjected to is Aggravating But a Sentencing Judge Must not Fall into Error by Over or Under Emphasizing it

[89] The Supreme Court also squarely addressed the importance that sentencing judges must place on the degree of physical interference the child was subjected to, noting that in the past, sentencing ranges have varied depending on whether the offender subjected the victim to vaginal penetration, anal penetration, fellatio, cunnilingus or touching. While finding that such categorization is a “recognized aggravating factor”, the Supreme Court cautioned sentencing judges not to fall into error by placing undue emphasis on it. The Court noted that this is potentially an error for the following reasons:

a) It resurrects traditional views of sexual assault which Parliament has chosen to abolish. b) Courts should not assume that there is a clear correlation between the nature of the physical act and harm caused to the victim. In particular, it potentially ignores emphasis on psychological and emotional harm. c) It minimizes the inherent wrongfulness of any form of sexual violence against a child. d) There is no “ladder” or hierarchy of physical acts that inform the degree of physical interference with the child. [44]

Friesen: The Effect of a Guilty Plea

[90] A Guilty Plea is not necessarily a significantly mitigating factor where the Crown’s case against the Offender is “overwhelming”. [45]

Friesen: The Effect of Remorse

[91] The degree to which an Offender’s expression of remorse is aggravating is “paired with insight and signs that the offender has “come to realise the gravity of the conduct, and as a result has achieved a change in attitude or imposed some self-discipline which significantly reduces the likelihood of further offending””. [46]

Friesen: The Effect of the Location of the Offence

[92] The fact that an offence took place in a child’s home may be aggravating “because it damages the child’s sense of security in the home environment.” [47]

Post Friesen Cases

[93] In [R. v. J.(T.), 2021 ONCA 392] [48] , the Ontario Court of Appeal dealt with the sentencing of an offender who was found guilty after a trial of one instance of sexual assault when the victim was six or seven years old. The Sexual Assault involved the offender directing the victim to the bathroom and taking her hands and telling her to rub his penis. The offender then invited the victim to perform fellatio. At this point, the victim pulled away and left the room. The offender had no prior record, had employment, had a history of substance use for which he had gone to counselling. Because the child was a guest in the offender’s home for a sleep over with the offender’s children, the offender was in a position of trust. The offender did not express remorse. The trial judge imposed a sentence of nine months and two years probation.

[94] The Crown appealed. Justice Zarnett, writing for himself and Justices Hoy and Hourigan found that the trial judge’s sentence was “not consonant with Friesen’s message” [49] of priority to denunciation and deterrence and found that the appropriate sentence was two years in the penitentiary followed by two years of probation.

[95] In [R. v. P.H. [2020] OJ 5450 (S.C.J.)] [50] ., Justice London-Weinstein presided in a case where the offender pleaded guilty to three counts of sexual interference after a preliminary inquiry but before a trial. The first two victims were two boys who were the son and step-son of a friend. The offender pulled one of the boys, C.B, aged 10 or 11 at the time of the offence, on to his lap and touched his nipples. He then slid his hand inside his shirt. He slid his other hand down the boys leg and unzipped his pants. When the boy tried to get off the couch, the offender pushed him back down so that he was overtop of the boy. He put his hands inside the boy’s pants and touched his genitals. He kissed the boy on the mouth and put his tongue in the boy’s mouth.

[96] The boy’s step-brother B.S. was present at the time and when he was spoken to by the Police he did not confirm C.B’s account. Later, he recanted and told his mother that he had not been honest with Police because he did not want the offender to get in trouble. He then related that the offender had also kissed him and forced his tongue in his mouth. At the preliminary inquiry, B.S. stated that the offender had also put his hands in his pants and touched him on multiple occasions. He did not disclose previously because he was embarrassed.

[97] The third victim, K.C.K. was a nine years old. When he was 13, he told his mother that the offender came into his room at night and kissed him on the mouth. During those kisses, the offender would lick the boy’s lips.

[98] The offender was 40 years of age and he had no prior record. He worked for the Ottawa municipal transit system until he was dismissed by them after being charged. He had positive support from his mother. He had worked on a farm and drove a snowplow. According to a sexual behaviour assessment, he used alcohol on a daily basis. He indicated that he was under the influence of the alcohol when he committed the offences. He was also a heavy marihuana user. He suffered depression after a co-worker was killed about two years before the offences. He went to a psychiatrist and was prescribed an anti-depressant. He did not like the side effects and discontinued using it and stopped seeing the psychiatrist. Phallometric testing revealed a sexual interest in pre-pubescent males, and significant sexual interest in adult females. The latter was deemed to be a positive factor because “it shows that he may be capable of having a sexual relationship with an adult female” [51] . He was assessed to have a moderate risk of re-offence. He enrolled in therapy and demonstrated insight and remorse. He raised $4500 to pay for therapy for the boys.

[99] The second victim indicated in his Victim Impact Statement that he was angry because he had trusted the offender. His father stated that he felt guilty for what happened. He was a trusted family friend who was referred to as “Uncle Phil”.

[100] The Crown sought three years. Defence sought nine months. Justice London-Weinstein found that “[t]he insight into offending, willingness to take steps to prevent reoffence and the remorse demonstrated distinguishes P.H. from the vast majority of cases” [52] . Obliquely referring to Friesen, the court stated, “Thus, while denunciation and deterrence must be emphasized, and I have given them paramountcy, I must find room for rehabilitation. It is the public who will be protected if PH is rehabilitated” [53] . Ultimately, Justice London-Weinstein imposed a sentence of two years to be followed by three years probation, stating:

I choose a sentence of two years because I felt that it was the appropriate balance of the relevant factors in this case. I also chose it because it enabled me to impose a period of probation, which will further protect young boys from P.H., and enable P.H. to continue to rehabilitate himself. [54]

[101] In [R. v. J.C. [2021] OJ 7396 (C.J.)] [55] , Justice Masse found the offender guilty after trial of one count of invitation to sexual touching, one count of voyeurism and two counts of breach of release order. In this case the offender slapped the buttocks of the victim without her consent, and massaged her without her consent. During the course of the massage, the offender unhooked the bra of the victim and there was sexually explicit conversation. In a third incident, he grabbed her breasts and groped her vaginal area. He gave her his phone number and invited her to call him in the summer in order to have sex. The victim was the offender’s 14-year-old niece. The voyeurism stemmed from his decision to surreptitiously take pictures of a second victim, who was his 25-year-old niece, with a camera in the bathroom. He was 48 years of age. He had a record for theft, careless storage, unauthorized possession of a firearm, possession of a controlled substance, assault, criminal harassment, breach of probation and operating a conveyance with more than 80 milligrams of alcohol. He left school when he was 16 to go to work. He worked as a truck driver. He consumed cannabis, sometimes to excess. He has two children, one of whom he is estranged from. He suffers from depression and suicidal ideation. At trial he denied responsibility for the offences even though in a statement to Police, he claimed that the victim wanted to have sex with him. He was not remorseful. There was significant impact to both victims. The Crown sought five years. Defence sought 90 days intermittent. Justice Masse found a sentence of four years in the penitentiary was appropriate.

[102] In [R. v. Lloyd [2021] OJ 5163 (C.J.)] [56] , Justice Wheeler found the offender guilty after a trial of touching the victim over the clothes in a trailer on a camping trip. The offender was 53, had been sexually abused as a youth and until the charges impacted his security clearance, had a successful consulting business. The victim considered the offender as a father figure. It affected her relationship with her mother who she initially blamed for the offence. The offender went from being a good student to a person with significant behaviour issues. Justice Wheeler found that the appropriate sentence with 15 months in prison followed by two years probation.

[103] In [R. v. R.L. 2021 ONCJ 688] [57] , Justice Blacklock sentenced an offender who pleaded guilty to sexual interference on his daughter. She was 14 at the time of the offence. Over a period of months, he touched her inappropriately on five occasions. The touching consisted of touching her breasts over her clothes, getting in bed with her, cuddling with her in bed, kissing her on the mouth, asking her if she was ready to become a woman, resting his hand on her chest over her clothes and then moving it down to rub her vaginal area over her clothes.

[104] The offender had suffered physical abuse as a child. He was seriously addicted to cocaine. He had a record for drug offences but no record for violence. He had employment available to him. He had letters of support from the community. The court found that this was a “very grave breach of trust.” [58] The Crown sought a sentence of 15 months. Defence sought a sentence of six months. Citing J.(T.), supra, Justice Blacklock found that a sentence in the range of two years would be appropriate after a trial. He found, however, that substantial mitigation was owed due to the early guilty plea, stating,

In pleading guilty he has given up any chance of defeating the Crown’s case which is always a possibility. He has in doing so engaged in the healing behaviour of saying to the complainant you were right, I betrayed you. He has also spared her the further trauma of having to come into a public courtroom, reliving the events and suffering the indignity of having her own father deny the truth. In my view, he deserves real credit for that and I believe that that opens the door in this case to a sentence as low as one year, but I do not believe I can go below that. [59]

[105] Justice Blacklock therefor ordered a sentence of just under one year to be followed by three years probation. He noted that this would also make the offender eligible “for programming at OCI [Ontario Correctional Institute].”

[106] In [R. v. R.N., 2022 ONCJ 145] [60] , Justice McLeod dealt with an offender who pleaded guilty to one count of sexual interference. The facts consisted of five instances where the offender, who was the grandfather to the victim, touched the breasts of the victim and digitally penetrated her. She was 13 at the time of the offences. The Crown sought a penitentiary sentence in the range of four years. Defence sought two years less a day plus probation for two or three years.

[107] Victim Impact Statements filed in the case demonstrated that the victim suffered many of the effects that the Supreme Court found were common in these cases in Friesen, including fear around persons in authority, loss of self esteem, inability to focus at school, and blaming herself for what happened. The Court found that the abuse “has single-handedly affected every part of her life and her sense of self.” [61]

[108] The offender was diagnosed with having an intellectual delay. He was 57 years old. He had a criminal record with a single entry that is said to be “totally irrelevant”. He worked at a recycling plant. He only had one lengthy intimate relationship which ended when he was charged. He smoked marihuana. He admitted his wrongdoing to police. He was assessed by a forensic psychiatrist as having a low risk of reoffence. It was noted that phallometric testing was not completed in this case due to the pandemic.

[109] Justice McLeod found that the guilty plea was a significant indicator of remorse. She imposed a sentence of two years less a day plus three years probation. She reasoned:

This sentence allows Mr. R.N. to be considered for admission to the Ontario Correctional Institute for rehabilitative programmes to assist in this specific type of offending. It also permits me to impose a period of supervision on Mr. R.N. when he is released into the community which would allow for further therapeutic programmes to be provided to him which would assist him in not only coming to terms with the nature of his wrongdoing but ensure the safety of the public. [62]

[110] In [R. v. Green [2022] OJ 2892 (S.C.J.)] [63] , Justice Gomery found the offender guilty after a trial of two counts of sexual assault and two counts of sexual interference. The offender was a 51-year-old teacher. The victim was a 14-year-old student. There were two encounters. In the first he grabbed her thigh and squeezed it and slid his hand up her leg. As he was doing this, he asked her if she was sexually active and told her that she should be looking for a boyfriend like him. In the second encounter, he told her that she was sensitive and had a good heart. He then placed his hand on her chest and touch her breast until she moved away. He told her not to tell anyone.

[111] The offender did not have a criminal record. He had been teaching for ten years. He was separated from his wife of 29 years. He had two children. He has no relationship with his ex-wife, his three siblings, his step-siblings or his older son. His brother committed suicide and he felt guilty about it. He was diagnosed with thyroid cancer a year before the offences. He was hospitalized for psychotic episodes.

[112] The victim was diagnosed with an eating disorder and PTSD. She became obsessed with her performance in school. She was easily triggered by touch and unable to form close relationships with romantic partners. She panics when she is confronted by men in positions of authority. She has had to take time off work to address her mental health issues. She has nightmares.

[113] The Crown sought three years custody. Defence sought one year followed by three years probation. Justice Gomery found the appropriate sentence was 18 months custody followed by three years probation.

[114] In [R. v. P.H. 2022 ONCJ 297] [64] , Justice De Filippis sentenced an offender who pleaded guilty to two counts of Sexual Interference in relation to two victims who were the children of friends of his. The first victim was seven or eight years old at the time of the first incident. The offender invited her to sit on his lap and then reached up her skirt and rubbed her vaginal area over her underwear. While doing this, he would whisper and laugh and ask her if she liked it. This took place on other visits until the victim was 11 or 12.

[115] The offences against the second victim first took place at a cottage when she was six. The offender invited the victim to go up to the Bunkie where he undressed himself and her, laid her on the bed, moved her legs and touched her vagina. Similar incidents took place on several other occasions.

[116] It is noteworthy that one of the victims had previously reported the incidents, but the file was closed by Police. Years later, the offender sent an email to the parents of one of the victims in which he apologized for his offences. The police re-opened their investigation, the accused was charged, he confessed to the Police and he pleaded guilty. This was a pivotal issue in sentencing. Justice De Filippis noted:

If the defendant had not come forward to admit his misconduct, he would likely have never been charged. With his confession, his crimes have been brought to light and the reason for the victims’ suffering is exposed – there is a cause and a culprit, and they are not to blame. The defendant’s admission does not diminish the seriousness of the offences, but it is a unique circumstance. The issue to be decided is how this circumstance affects the sentence. [65]

[117] Victim Impact Statements from both children and the mother of one victim, which Justice De Filippis quoted from in his judgment, relate significant psychological damage as a result of the offences.

[118] The offender was 72 when he was sentenced. He was a retired engineer. He had part-time employment. He was said to be in poor, but not life-threatening, health. He does not have a criminal record.

[119] The Crown took the view that a sentence of two years less a day was called for. Defence argued that the offender should receive a conditional sentence with house arrest.

[120] Although the Court initially “thought that there might be a compelling argument to justify a conditional sentence…. …having received the victim impact statements, I conclude that a conditional sentence is not appropriate.” [66] The court found that a global sentence of 18 months in the reformatory was appropriate (nine months on each count, consecutive), to be followed by three years probation.

[121] I pause here to note that although Justice De Filippis considered granting a conditional sentence, he declined to do so. Although counsel did not specifically advocate for a conditional sentence in this case, recent Court of Appeal authority stands for the proposition that where a proposed sentence falls into the range of sentences where a conditional sentence is available, a sentencing judge will fall into error if she does not articulate consideration of such a sentence [67] . Conditional sentences for offences like T.A.’s are now seemingly out of reach, given the Supreme Court of Canada’s decision in [R. v. Sharma 2022 SCC 39] [68] . Even if it were somehow still available after Sharma, I would not grant it for the same reasons articulated by Justice De Filippis. Given the circumstances of this offender, this offence and the victim impact, in my view imposing a Conditional Sentence here would be inconsistent with the principles of sentencing, including the statutory aggravating factors set out in sections 718.2(a)(ii), (ii.1), (iii) and (iii.1) of the Criminal Code. A non-carceral sentence did not work to prevent this offence when T.A. was previously convicted of a sexual offence at court-martial; there is no reason to believe that such a sentence would deter him in the future. A carceral sentence is called for.

[122] I also note that the parties are in agreement that a carceral sentence is called for. What they disagree on is the length.

Application of the Principles to this Case

[123] No sentence that I impose will ever be able to restore A.S. or A.W. – or for that matter A.A. who as a result of T.A.’s behaviour has become estranged from her daughter and her granddaughter and chosen to end her relationship with her partner, T.A – to the persons they were before T.A. chose to sexually interfere with A.S. These people are changed by T.A.’s offences, probably for the rest of their lives. Our only hope is that through time, treatment and counselling, A.S., A.W., A.A. and their family will learn to cope with their traumas. It is a myth that these traumas will ever completely heal or disappear.

[124] I accept that T.A. is remorseful for his crimes. As an expression of that remorse, he has been taking part in the Sexual Behaviours Clinic at the Royal Ottawa Hospital in advance of his sentencing. He has also entered a guilty plea and in doing so, he has saved his victim of the trauma of revictimization and the uncertainty that testimony in a trial can result in.

[125] With respect to this latter finding, during submissions I discussed the Supreme Court’s comments in Friesen about the diminished impact of a guilty plea where the Crown had an overwhelming case with counsel. Counsel agreed that the Crown’s case was strong and it would be difficult to mount a defence but the case was not overwhelming. This case involved an admission to a person who was not in authority. Thus, he would seem to be entitled to some mitigation for his early plea. Citing [R.L.] [69] , Defence counsel urged me to give significant (but not distorted) mitigation for T.A.’s plea.

[126] T.A.’s crimes involve one victim. Some of the cases I cited above involve more than one victim. T.A.’s crimes involve three acts. Some of the cases cited above involve more frequent offences over a longer period. Likewise with respect to the nature and degree of the physical interference. I am mindful, however, of the Supreme Court’s dictum that one incident can be sufficient to warrant a significant sentence, particularly where, as here, there is significant actual harm and a high likelihood of significant future harm. I am also mindful not to fall into error by focussing on the fact that the touching in this case is traditionally viewed as less intrusive than fellatio or intercourse. Rather, I remain focussed on the actual harm and high likelihood of significant future harm.

[127] T.A. is very desirous of treatment. He wishes to be sentenced in a manner that will allow him to take advantage of the treatment options at the Ontario Correctional Institute. He is prepared to accept the maximum sentence (two years less a day) so that he can obtain this treatment. If he is sentenced to the Penitentiary, the evidence before me is that he is unlikely to receive any treatment. He is also prepared to accept the maximum period of probation, three years, with conditions requiring him to continue treatment.

[128] I note that such a sentence will also provide for a longer period of protection for A.S., in the sense that he will be prohibited from having contact with her for a longer period than he otherwise would if I were to impose the three-year penitentiary sentence sought by the Crown. It will also provide for a longer period of protection for society as a whole in that the T.A. will either be in jail or under the supervision of a Probation Officer for an aggregate period of five years. This kind of sentence, in my view, can be equivalent to the Supreme Court’s admonishment in Friesen that mid-single digit Penitentiary Sentences are expected to be the norm in cases of this nature. It is a sentence of sufficient length and strength that denunciation and deterrence have primacy. It separates the offender from society. Unlike a penitentiary sentence, in this case, it is also a sentence that accomplishes the sentencing goal of rehabilitation.

[129] I have some doubt about imposing this sentence for the following reasons:

a) T.A. is not a first-time offender. He has a previous sexual assault against an adult female, who was a subordinate to him in the military. He did not learn from that experience and went on to reoffend in a significant way against his step-granddaughter. b) Both offences involve a breach of trust, first as a superior officer in the military towards a subordinate and secondly as a person who’s step-granddaughter should have felt safe with. c) I agree with the Crown and find that it is very troublesome that he did not follow up on the suggestion that he obtain treatment after the sexual assault court-martial. d) As I have noted above, some of his responses to questions put to him during the Sexual Behaviours Assessment are also troublesome, and show that despite some treatment, he continues to endorse some victim-blaming and minimization. e) The results of the phallometric testing show that he responds to coercive sexual scenarios with adult females and the Sexual Behaviours Assessment does not explain how that does not increase his risk level or warrant a finding that he suffers from paraphilia in addition to paedophilia.

[130] T.A. has, however, demonstrated a willingness to engage in treatment and he appears to have made some progress in that regard.

[131] On balance, the logic of a maximum reformatory sentence to be followed by the maximum period or probation is, in my view, unassailable and that, along with various ancillary orders, is the sentence that I will impose when T.A. appears before me on November 18, 2022.

Released: November 17, 2022 Signed: Justice J.R. Richardson

Footnotes

[1] Exhibit 2, page 4. [2] Exhibit 2, page 5 [3] Exhibit 2, page 5 [4] Exhibit 2, page 6 [5] Exhibit 2, page 7 [6] Exhibit 2, page 11 [7] Exhibit 2, page 17 [8] Exhibit 2, page 16 – Bumby Cognition Scales Results [9] Exhibit 2, pages 19-21 [10] Exhibit 2, page 18 [11] Exhibit 2, page 18 [12] Exhibit 2, page 18 [13] Exhibit 2, page 23 [14] [R. v. DD (2002), 58 O.R. (3d) 788 (C.A.)] [cited_cases.case_law.3.url] [15] [R. v. Friesen [2020] SCC 9 at paragraph 5] [cited_cases.case_law.0.url] [16] Friesen, supra, at paragraph 51 [17] Friesen, supra, at paragraph 52 [18] Friesen, supra, at paragraph 53 [19] Friesen, supra, at paragraphs 55 and 56 [20] Friesen, supra, at paragraph 58 [21] Friesen, supra, at paragraph 60 [22] Friesen, supra, at paragraph 61 [23] Friesen, supra, at paragraph 63 [24] Friesen, supra, at paragraph 64 [25] Friesen, supra, at paragraph 65 [26] Friesen, supra, at paragraph 66 [27] Friesen, supra, at paragraph 68 [28] Friesen, supra, at paragraph 76 [29] Friesen, supra, at paragraph 77 [30] R. v. Friesen, supra, at paragraph 80 [31] R. v. Friesen, supra, at paragraph 81 [32] R. v. Friesen, supra, at paragraph 85 [33] R. v. Friesen, supra, at paragraph 90 [34] R. v. Friesen, supra, at paragraph 89. [35] R. v. Friesen, supra, at paragraph 91 [36] R. v. Friesen, supra, at paragraph 100 [37] R. v. Friesen, supra, at paragraph 97 [38] R. v. Friesen, supra, at paragraph 104. [39] R. v. Friesen, supra, at paragraph 114 [40] [R. v. Friesen, supra, at paragraph 124.] [cited_cases.case_law.0.url] [41] R. v. Friesen, supra, at paragraph 126 [42] R. v. Friesen, supra, at paragraph 130 [43] R. v. Friesen, supra, at paragraphs 131-133 [44] R. v. Friesen, supra, at paragraphs 141 to 147. [45] R. v. Friesen, supra, at paragraph 164 [46] R. v. Friesen, supra, at paragraph 165 [47] R. v. Friesen, supra, at paragraph 178 [48] [R. v. J.(T.) 2021 ONCA 392] [cited_cases.case_law.4.url] [49] R. v. J.(T.), supra, at paragraph 33 [50] [R. v. P.H. [2020] OJ 5450 (S.C.J.)] [cited_cases.case_law.5.url] [51] R. v. P.H., supra, at paragraph 32 [52] R. v. P.H. supra, at paragraph 38 [53] R. v. P.H. supra. [54] R. v. P.H. supra, at paragraph 138. [55] [R. v. J.C. [2021] OJ 7396 (C.J.)] [cited_cases.case_law.6.url] [56] [R. v. Lloyd [2021] OJ 5163 (C.J.)] [cited_cases.case_law.7.url] [57] [R. v. R.L. 2021 ONCJ 688] [cited_cases.case_law.8.url] [58] R. v. R.L. supra, at page 2 [59] R. v. R.L., supra, at pages 4-5 [60] [R. v. R.N., 2022 ONCJ 145] [cited_cases.case_law.9.url] [61] R. v. R.N., supra, at paragraph 6 [62] R. v. R.N., supra, at paragraph 64. [63] [R. v. Green [2022] OJ 2892 (S.C.J.)] [cited_cases.case_law.10.url] [64] [R. v. P.H 2022 ONCJ 297] [cited_cases.case_law.11.url] [65] R. v. P.H., supra, at paragraph 12 [66] R. v. PH, supra, at paragraph 14 [67] [See for example, R. v. Ali 2022 ONCA 736] [cited_cases.case_law.12.url] [68] [R. v. Sharma 2022 SCC 39] [cited_cases.case_law.13.url] [69] R. v. R.L. supra (see note 59)