WARNING The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 162.1, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2024 07 08 COURT FILE No.: Pembroke 21 - 0210
BETWEEN:
HIS MAJESTY THE KING
— AND —
AL
Before: Justice J.R. Richardson
Heard on: December 16, 2022; March 13, 2024 Reasons for Sentence released on: July 8, 2024
Counsel: Teresa James...................................................................................... counsel for the Crown Lisa Gunn................................................................................... counsel for the accused AL
RICHARDSON, J.:
Introduction
[ 1 ] On December 16, 2022, AL entered a guilty plea to one count of sexual interference against KB. The offence took place between August 1, 2016 and December 31, 2017.
[ 2 ] At the time of the offence, AL was in a relationship with KB’s mother. KB was between nine and eleven years of age. The touching consisted of over-the-clothes touching. AL also invited KB to touch his penis. He masturbated in her presence.
[ 3 ] KB disclosed what happened to her mother after she saw photos of her feet on AL’s phone. This resulted in KB’s mother confronting AL. After being confronted, AL left and threatened to harm himself. He was ultimately apprehended and hospitalized.
[ 4 ] AL cooperated with the police. He gave an inculpatory statement. He also told his wife what happened.
[ 5 ] The issue in this case is what the appropriate sentence should be.
[ 6 ] AL was a member of the Canadian Forces. He has PTSD from his military service. He also has borderline intellectual ability and he experienced non-sexual trauma as a child.
[ 7 ] He does not have a criminal record.
[ 8 ] After hearing the plea, the matter was adjourned for the preparation of a pre-sentence report and a section 21 report.
[ 9 ] The case has been delayed for a considerable period. Significant time was required to arrange to have a section 21 report completed because AL relocated to the London/St. Thomas area. Ultimately, the report was completed by Dr. Gary Chaimowitz of the St. Joseph’s Health Centre in Hamilton.
[ 10 ] There were also times where defence counsel had significant difficulty getting in touch with AL and getting instructions from him.
[ 11 ] Finally, defence counsel developed a significant health challenge of her own. Despite this challenge, while undergoing treatment, she has continued to advocate for AL at a very high level.
[ 12 ] For these reasons, I did not hear submissions on this case until March 2024, some 15 months after the plea was ultimately entered.
The Pre-Sentence Report
[ 13 ] AL is 54 years old.
[ 14 ] He is originally from London, Ontario. He has two half siblings. Both his parents are deceased. He has no contact with his half-sister and only limited contact with his half- brother.
[ 15 ] Shortly after he was born, his family moved to the southwestern Ontario town of Exeter where he remained until he was 13. His father died when he was 13 and after his father’s death, he and his mother moved back to London.
[ 16 ] He did not complete high school.
[ 17 ] Instead, he worked at various restaurants and bars in order to help his mother pay the bills.
[ 18 ] At some point, he was able to complete his high school education through an adult education program.
[ 19 ] He joined the Canadian Forces in 1997. He had his first foreign tour of duty in Bosnia in 1998. He told the Probation Officer that he was horrified by what he saw there. He returned to Canada, but in 2000, was assigned to another seven-month tour in Bosnia.
[ 20 ] He returned to Canada from Bosnia and was here for two years before being deployed to Afghanistan for six months. He described Afghanistan as the worst place he has ever seen in his life. He completed a second tour of duty in Afghanistan in 2010. He returned to Canada and remained in the army until 2021 when he was discharged.
[ 21 ] AL struggled with his mental health after every foreign tour of duty. He told the probation officer that he was “nuts”. He indicated he was diagnosed with PTSD in 2016. Like many veterans who have appeared before me, he did not speak positively of the military’s response to his mental health struggles.
[ 22 ] AL’s ex-wife, CL, told the Probation Officer that she noticed the most profound change in AL after he returned from Afghanistan. He slept in the basement, was alert and over-reacted to loud noises. She saw him once drop on the ground on a city sidewalk after he heard a loud noise. She observed that he struggled with walking on the grass because he did not feel it was safe. She noted that AL is preoccupied by his time in Afghanistan.
[ 23 ] AL’s former partner (and the mother of KB) EH also endorsed these observations. She told the Probation Officer that AL slept in the basement on a small shelf in a sleeping bag. She reported that he would sit in the basement alone staring blankly, and he was constantly yelling. The Probation Officer noted, “It felt as though he lived in Afghanistan in his mind.”
[ 24 ] In 1999, he started dating CL. They dated for about five years before they married. Once they married, they resided in Petawawa, Ontario where AL worked as a member of the military.
[ 25 ] They had two children.
[ 26 ] During their relationship, AL and CL attended at the Royal Ottawa Hospital sexual behaviours clinic for about six months because AL suffered from a sex addiction.
[ 27 ] The relationship ended in 2011 because of AL’s infidelity. Despite this, he and CL co-parented their children and she has been a great source of support to AL with respect to his charges before the Court.
[ 28 ] When the relationship broke down, CL and the children moved back to the London area. AL saw his children every four months or so.
[ 29 ] In the aftermath of his offences, CL has continued to support AL and she persuaded him to move back to the London area. He also continues to see his children, but CL told the Probation Officer that they were devastated by the allegations because they considered KB to be their half-sister.
[ 30 ] When the relationship with CL ended, AL moved in EH and KB. KB was four years of age at the time.
[ 31 ] AL described his relationship with EH as toxic.
[ 32 ] EH essentially agreed with this characterization. She told the Probation Officer that she was mentally and verbally abused by AL. He was possessive and controlling.
[ 33 ] She also agreed that AL was a sex addict. He was unfaithful to her. She did not know that this addiction went so far as harming children, including her daughter KB.
[ 34 ] AL denied the use of alcohol. He admits to the abuse of pain medication while in the relationship of EH, something that is corroborated by EH. He states that he no longer abuses these medications.
[ 35 ] AL admits to significant use of marihuana, which continues. This was also corroborated by EH.
[ 36 ] For the past three years, AL has lived at a motel. He maintains his fitness by walking while carrying a heavy backpack. He sees his children occasionally when CL comes to pick him up to take him for a visit.
[ 37 ] He does not appear to have any other close friends or confidantes.
[ 38 ] He worries about seeing EH and KB, who have now also relocated to the London area.
[ 39 ] He told the Probation Officer that he accepted full responsibility for what he did. He feels sick about it. He denied sexual attraction to children and attributed his actions to his PTSD.
[ 40 ] Despite his full acceptance of responsibility, he has struggled to access services and treatment. He has not used the remand time wisely. He continues to complain about lack of assistance from the military and Veterans Affairs. Apparently, some counselling was arranged for him at the Royal Ottawa Hospital in 2021, but he did not follow through with it.
[ 41 ] He has a family doctor who has prescribed anti-depressants. AL does not believe that they are effective.
[ 42 ] CL is concerned that AL will attempt suicide. EH also told the Probation Officer that while AL lived with her, she was concerned that he would try to kill himself and went so far as to remove all wires, cords and ropes from the home. She opined that sometimes this was a manipulation tactic. However, she also recalled one occasion where, in her presence, AL cut his arm open.
The Section 21 Report
[ 43 ] Dr. Chaimowitz’s report, dated August 3, 2023, was entered as an exhibit.
[ 44 ] With respect to family history, AL told Dr. Chaimowitz that his father was emotionally and physically abusive when he was a child. He left AL and his siblings unattended in a car. When he learned that AL was afraid of birds, he killed chickens and chased AL with their feet. AL was subjected to corporal punishment. He attempted to run AL and his mother over with the car when his mother was trying to leave the relationship. He “molested” AL’s sister.
[ 45 ] AL’s most notable memory from his childhood was that he had to watch out for his dad. He was 13 when his father died as a result of a construction accident.
[ 46 ] With respect to his education, AL did not like school and he found it difficult to focus. He was held back in Grade 4. He never had any assistance at school or an individualized education plan. He was bullied for being skinny and wearing glasses. He threw a fake grenade into the principal’s office because he felt that the principal was antagonizing him.
[ 47 ] The only positive aspect of his teenage years was his involvement in cadets. It is not surprising that he naturally progressed to joining the army.
[ 48 ] There is no remarkable medical history.
[ 49 ] AL was treated on an out-patient basis by Dr. Fedoroff of the Royal Ottawa Hospital between March 2008 and January 2009 for “sexual addiction”. He reported a foot fetish and an interest in urination. He denied sexual interests in children, or coercive sex. Dr. Fedoroff recommended marital counselling, which apparently he and CL participated in and found helpful.
[ 50 ] Between January 16, 2021 and January 19, 2021, AL was treated at the Pembroke Regional Hospital for suicidal ideation. He was subject to a Form 1 and discharged to the Montfort Hospital in Ottawa on January 19.
[ 51 ] Between January 19, 2021 and February 11, 2021, AL was treated at the Montfort Hospital on a Form 3. It is noted that he attempted to overdose on medication and planned to hang himself. He suffered from flashbacks, insomnia, hypervigilance, difficulty with concentration, anxiety and depression. He struggled with anger. He felt he did not deserve to live because of what he had done to KB.
[ 52 ] He was diagnosed with Adjustment Disorder and PTSD. On discharge, he advised that he intended to relocate to London. Dr. Fedoroff was contacted and he agreed to see AL.
[ 53 ] With respect to drugs and alcohol, the history noted by Dr. Chaimowitz agrees with the information in the Pre-Sentence Report. Marihuana is his primary vice.
[ 54 ] As part of Dr. Chaimowitz’s investigation, AL was seen by Dr. Moulden, a clinical forensic Psychologist. She noted the following:
a) AL had exposure to pornography at a young age from seeing his father’s pornography.
b) By late adolescence, he used telephone sex lines and subscribed to Vogue and National Geographic for sexual stimulation. He came to view women as “objects of pleasure”. He was promiscuous.
c) He acknowledged witnessing, but denied involvement, in “questionable sexual activity” while in the military.
d) He acknowledged arousal to undeveloped or petite sexual characteristics. He denied purposely searching for child sexual abuse material, but when he inadvertently came across it, he was aroused by it. He denied interest in sadism or voyeurism.
e) He characterized himself as “pushy” in sexual relationships. He denied engaging in coercive sex. He acknowledged feeling rejected and abandoned when his partners did not want to participate in sex with him.
f) He reported some benefit from the counselling with Dr. Fedoroff in managing his sex drive.
g) Oddly, although the information that Dr. Fedoroff provided to Dr. Chaimowitz revealed that AL did not undergo phallometric testing, AL reported to Dr. Moulden that he did in fact undergo that form of testing and Dr. Fedoroff told him that he had a sexual arousal to underage females. He also reported that this revelation prompted him to terminate further contact with Dr. Fedoroff.
h) AL reported masturbating two to three times a day. He uses pornography to stimulate himself.
i) AL reports having sexual dysfunction when he is with partners.
j) There was no evidence of minimization or defensive responding in the instruments Dr. Moulden used to assess him. He is, however, inclined to “over-endorse psychiatric symptoms and impairment.” Consequently, Dr. Moulden was of the view that some findings from the various instruments must be interpreted “cautiously”.
k) He is in the borderline intellectual range (5 th percentile).
l) He has a severe anger pathology (97 th percentile).
m) He has a high probability of lifetime Substance Abuse Disorder.
n) He has a high score for one newer instrument measuring hypersexuality. Dr. Moulden opined, “Scores in this range are consistent with hypersexuality which is characterized by difficulty controlling one’s sexual urges and impulses, using sex as a coping strategy, and experiencing negative consequences associated with one’s sexual drive or preoccupation.”
o) Another instrument noted that he was “in the at-risk category for having difficulties with online sexual behaviour.”
p) AL was subjected to phallometric testing and the results are considered invalid.
q) Dr. Moulden concluded that the mental health problems which emerged from her investigation included substance abuse and anger. There is a pre-existing PTSD, although Dr. Moulden had some difficulty confirming this given AL’s “response style”. There is no evidence of psychosis.
r) Dr. Moulden concluded that AL suffers from “long-standing hypersexuality and multi-paraphilic interests namely fetishism and pedophila”. She noted that he is “quite sexually preoccupied and struggles to curb and manage his sexual urges and interests, resulting in significant negative consequences.”
s) Her primary diagnoses included pedophilic and fetishistic disorders, cannabis use disorder and post-traumatic stress disorder. She also found evidence of Borderline Personality Disorder.
t) With respect to assessment of risk, Dr. Moulden concluded that AL was in an “above-average risk category for supervision and intervention” when compared to other sex offenders. She opined at page 22 of the report:
Considering [AL’s] level of protective factors, his historical (static) risk factors and his current/dynamic risk factors, his current level of risk/need for sexual violence is above average. The risk estimate reflects his sexual functioning, drive, coping and interests, substance abuse and personality structure. In the event of reoffence, it would most likely be against an underage female, and opportunistic, versus impulsive, in nature. He is at risk of child pornography offences, contact offences against a child, and voyeuristic offences, such as photographing someone for a sexual purpose without their consent. Despite his awareness of these issues, his efforts to cope with his sexual problems are only partial, and he continues to use cannabis, which may impair already weak impulse control. Additional relevant risk factors are avoidant coping and problem solving, negative emotionality and impulsivity. In his favour, [AL] is aware of his problems, and is motivated to engage in treatment, and prevent future offending.
[ 55 ] When Dr. Chaimowitz examined AL in June and July 2023, he noted that AL “attempted to minimize and brush over certain things that otherwise would have been of concern.” He also noted that AL “indicated that he is always suicidal” and he wished he had died in Afghanistan.
[ 56 ] Dr. Chaimowitz indicated as follows:
a) He generally agreed with Dr. Moulden’s diagnosis and recommendations. He diagnosed “longstanding paraphilas -- fetishism and pedophila with associated hypersexuality.” To combat this, in addition to other treatment, he suggested that AL consider pharmacological sex drive reduction medication.
b) He also diagnosed Borderline Personality Disorder and suggested that AL engage in Dialectical/Cognitive Behaviour Therapy.
c) He also diagnosed Substance Use Disorder—Cannabis. He noted that AL should abstain from the use of cannabis given that it can worsen his mental health problems and increase his risk to the public.
d) Dr. Chaimowitz suggested further assessment for PTSD.
[ 57 ] Dr. Chaimowitz’s findings were not contested by the parties.
[ 58 ] While I accept all of these findings, I am somewhat surprised by the suggestion that further assessment of PTSD is necessary, given that:
a) AL has previously been diagnosed as suffering from PTSD;
b) AL’s reports about his behaviour and ability to cope following foreign tours of duty;
c) AL’s reports about the treatment he was subjected to by his father;
d) the reports of collateral contacts (particularly CL and EH) with respect to his behaviour after foreign tours of duty;
and, therefore, common sense would seem to indicate that there is something to it.
[ 59 ] This is something that the correctional authorities should thoroughly consider as part of a treatment plan for AL.
[ 60 ] I note that I preside in a Court in the same jurisdiction of CFB Petawawa, one of the largest military bases in Canada, and home to the Royal Canadian Regiment which has seen its share of foreign tours of duty, including tours in Afghanistan. I daily hear complaints by veterans who now find themselves in conflict with the law about the lack of treatment resources available to them to help them deal with the lingering effects of what they witnessed while serving their country.
[ 61 ] We owe it to them to do better.
[ 62 ] As I will discuss in greater detail below, while in this case it appears that the presence of PTSD in AL may well be collateral to the sexual offending behaviour, it stands to reason that what happened to him in childhood and in the military and his ability to cope factors strongly in the Borderline Personality and Substance Abuse diagnoses and must be dealt with as part of his overall treatment plan moving forward.
[ 63 ] On the pathway of understanding AL’s personality, it is a stone that continues to be unturned.
Victim Impact
[ 64 ] There are two sources of information concerning the effects of this offence on KB.
[ 65 ] First, the author of the Pre-Sentence Report indicated that, according to EH, KB was “coping moderately”. She has been diagnosed with PTSD as a result of what AL did to her. She has struggled with medication. She suffers from night terrors; she has struggled with her schooling, and she has difficulty with peer and romantic relationships.
[ 66 ] A Victim Impact Statement was also filed in Court. In it, KB indicates that:
a) She has been admitted to a psychiatric facility for suicidal ideation;
b) She has panic attacks;
c) Because of her awareness of AL’s fetish with her feet, KB cannot stand it when people touch her legs or feet;
d) She suffers from night terrors;
e) She suffers from insomnia;
f) She cannot return to the Petawawa/Pembroke area, which is her hometown, or maintain relationships with her friends who live here, because of her anxiety;
g) Her behaviour can be explosive and defensive;
h) She is a controlling person because she feels she was controlled by AL;
i) She lacks concentration. She described herself this way: “Sometimes I’m a deer in the headlights because I’m lost in a memory just thinking about it.”;
j) She has difficulty maintaining relationships. She stated that she pushed people away and “self-sabotaged” relationships in order to prevent herself from being eventually hurt;
k) She has had difficulty being intimate with her partner in certain ways because of the nature of AL’s abuse on her;
l) She started to use cannabis when she was 12 and she ultimately used harder drugs and alcohol. She has engaged in “drinking to forget” and “drinking to black out”; she stated that she makes “stupid mistakes when I’m drunk.”
AL’s Submissions
[ 67 ] After hearing the submissions of the Crown and defence counsel, I asked AL if there was anything he wanted to tell me.
[ 68 ] He stated that he “lives in remorse.” He is a recluse – he wants to be alone all the time and he does not go out in public. “What I did disgusts me.”, he said. “I cannot believe we are talking about the same person.” He told me that he has made many advances in therapy and is starting not to hate himself. “I believe I can be saved”, he said.
[ 69 ] AL advised that he had a hard time getting into therapy. “We are taught in the military not to say anything, to compartmentalize, to hide things. If I could go back, I would have immediately gotten the attention and I should have gotten therapy. We are taught to be tough. We are taught to rely on our fellow soldiers. I just clammed up.”, he said.
[ 70 ] AL stated that he was willing to take any medication and stop using cannabis. He acknowledged, “It does not help me. It dumbs down my reflexes and makes me forget things for a while. But they always come back.”
[ 71 ] He stated that he wanted to be a better person, to have friends. He expressed concern that his relationship with his children was strained. “I hurt and I looked for comfort in a little girl I had no business being around and I feel total utter devastation and shame for that.”, he said.
Submissions of the Crown
[ 72 ] The Crown seeks a sentence of three years in the penitentiary. The Crown submitted that if the Court was inclined to impose less time in custody, I should impose a sentence of two years in the penitentiary, which would permit the Court to also impose a three-year probation order which would have the benefit of allowing for a longer level of supervision.
[ 73 ] The Crown seeks the usual ancillary orders, including a section 109 weapons prohibition, a section 161 order for ten years, a SOIRA order for 20 years, an order pursuant to section 743.21 of the Criminal Code prohibiting contact with the victim and DNA.
[ 74 ] The Crown pointed out the following aggravating factors:
a) The offence is committed in relation to a child. The primary sentencing considerations are therefore denunciation and deterrence: section 718.01 of the Criminal Code. Such offences are also statutorily aggravating: section 718.2(a)(ii.1).
b) The accused committed the offence in relation to a member of his intimate partner’s family: section 718.2 (a)(ii) of the Criminal Code.
c) In committing the offence, the accused abused a position of trust and authority in relation to the victim: section 718.2 (a)(iii) of the Criminal Code.
d) The Victim Impact Statement speaks of significant impact on the victim: section 718.2 (a)(iii.1) of the Criminal Code.
e) The accused continues to be a high risk to the community. He was described in Dr. Chaimowitz’s report as being an “above average risk” of reoffence, most likely towards an underage female.
f) The accused has a pattern of avoiding problems in his life.
[ 75 ] The Crown submitted that the link between AL’s upbringing, PTSD, military service and the offending behaviour is unclear.
[ 76 ] The Crown pointed to the following mitigating factors:
a) AL has no prior record;
b) AL pleaded guilty and should receive substantial mitigation for doing so;
c) AL has participated whole-heartedly in assessments; and
d) AL has the support of his former spouse.
[ 77 ] Crown counsel helpfully filed a chart setting out sentencing decisions in child sexual abuse cases since the decision of the Supreme Court of Canada in R. v. Friesen 2020 SCC 9.
Submissions of Defence
[ 78 ] Defence counsel agreed that the Supreme Court’s decision in Friesen forged a new path in sentencing in cases of sexual assault, particularly with respect to children.
[ 79 ] Defence counsel agreed that there was significant victim impact.
[ 80 ] Defence counsel also pointed out that the decision of the Ontario Court of Appeal in R. v. MM 2022 ONCA 441 establishes that the Friesen range of sentence does not apply where there are “exceptional circumstances”.
[ 81 ] Defence counsel argued that AL fell into the kind of “rare exception” where a conditional sentence was available having regard to the following factors:
a) Promptly on his arrest, the accused was interviewed and gave an inculpatory statement. He was completely up front in admitting what took place.
b) He was released on an undertaking with strict terms and there has been no breach.
c) Although he has “miles to go” in terms of understanding and unwrapping his behaviour, he does not minimize or deny his behaviour.
d) He has no prior record. This is his first interaction with the criminal justice system.
e) Although he has a pattern of avoiding tackling and dealing with his mental health issues, he does not deny that they exist.
f) He has serious mental health problems. Of late, he has been doing counselling weekly through the Partners of Canadian Military Veterans. When submissions were made in March, he was awaiting referral to psychiatry.
g) He was of service to his country and suffered from considerable harm as a result of it.
h) There is hope for rehabilitation. In this vein, defence counsel pointed out that at some point, AL will be released from custody and it was important to plan for that and start the rehabilitation process from the start.
[ 82 ] Defence counsel largely had no issue with the proposed ancillary orders. Defence counsel suggested some tinkering of these orders so that AL can engage in normal behaviour once he is released from custody such as going for a walk in the park or having incidental interaction with younger persons in a public place or for a legal commercial transaction.
[ 83 ] Defence counsel advocated for a sentence of two years less one day conditional, to be followed by Probation.
Crown Reply
[ 84 ] In reply, Crown counsel argued that the conditional sentence plan was wholly inadequate for the following reasons:
a) The “exceptional circumstances” required by MM are not made out.
b) A conditional sentence does not address the risk to the public posed by AL.
c) A conditional sentence does not provide adequate supervision for “a guy who lives in a hotel.” Electronic monitoring will not mitigate this risk.
d) AL has only participated in counselling for the six weeks prior to the sentencing submissions.
e) The counselling sessions that he has participated in do not constitute a sex offender treatment program, an addiction program and have not been provided by a psychiatrist.
f) He has not engaged in any community-based treatment, including Narcotics Anonymous or Alcoholics Anonymous.
g) At best he is at the beginning of the process of learning to control himself. Given the amount of time that has gone on, he should be at least in the middle of the process.
Analysis
[ 85 ] There is a lot to digest from the Supreme Court of Canada’s decision in R. v. Friesen, supra. Literally every paragraph of the judgment contains a chestnut of information that assists judges with the difficult task of sentencing individuals charged with sexual offences, particularly those against children. While leaving the issue of setting starting points or ranges to provincial appellate courts, the Supreme Court of Canada threw down the gauntlet that mid single digit sentences in the penitentiary should be the norm in cases of sexual offences against children. They stated at paragraph 114:
D. (D.) , Woodward , S. (J.) , and this Court’s own decisions in M. (C.A.) and L.M. make clear that imposing proportionate sentences that respond to the gravity of sexual offences against children and the degree of responsibility of offenders will frequently require substantial sentences. Parliament’s statutory amendments have strengthened that message. It is not the role of this Court to establish a range or to outline in which circumstances such substantial sentences should be imposed. Nor would it be appropriate for any court to set out binding or inflexible quantitative guidance — as Moldaver J.A. wrote in D. (D.) , “judges must retain the flexibility needed to do justice in individual cases” and to individualize the sentence to the offender who is before them (at para. 33). Nonetheless, it is incumbent on us to provide an overall message that is clear ( D. (D.) , at paras. 34 and 45). That message is that 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. We would add that substantial sentences can be imposed where there was only a single instance of sexual violence and/or a single victim, as in this case, Woodward , and L.M. In addition, as this Court recognized in L.M. , maximum sentences should not be reserved for the “abstract case of the worst crime committed in the worst circumstances” (para. 22). Instead, a maximum sentence should be imposed whenever the circumstances warrant it (para. 20).
[ 86 ] In R. v. RLS 2020 ONCA 338, the accused was 51 years of age. He had no record. He was a permanent resident from Tennessee. He pleaded guilty and was remorseful. He attempted suicide. He had been sexually abused himself when he was an adolescent. The victim was his daughter. The offences took place when she was between four and six years old. He had her watch pornography which depicted daughters performing sexual acts on their fathers. He had her touch his erect penis with her hand. He sat with her an played an internet game depicting genitals. He had her sit on his lap when his clothes were off and his penis was exposed. The Crown originally sought twelve months; defence sought six months less one day on account of the spectre of a deportation order. Justice Knott imposed a nine month sentence.
[ 87 ] The Court of Appeal upheld the sentence, noting at paragraph 9, that the accused’s “moral culpability was high. If anything the sentence was lenient in light of the principles explained in R. v. Friesen.” It added at paragraph 12 that “…the sentence of imprisonment was not demonstrably unfit.”
[ 88 ] In R. v. TJ 2021 ONCA 392, 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.
[ 89 ] The Crown appealed. At paragraph 33, the Court of Appeal, led by Justice Zarnett, found that the trial judge’s sentence was “not consonant with Friesen’s message” of priority to denunciation and deterrence and found that the appropriate sentence was two years in the penitentiary followed by two years of probation.
[ 90 ] MM, supra, dealt with a case where the accused was convicted of possessing and making child pornography. The trial judge imposed a 15 month conditional sentence, followed by 12 months of probation. The Crown appealed. The Court of Appeal stated at paragraphs 15 and 16:
The Supreme Court’s instructions from Friesen could not be clearer: sentences for sexual offences against children must increase. There are no qualifications here. Sentences have been too low for too long. Denunciation and deterrence are of primary importance: R. v. Inksetter , 2018 ONCA 474 , 141 O.R. (3d) 161, at para. 3 . Those who commit sexual offences against children must understand that carceral sentences will ordinarily follow.
Conditional sentences for sexual offences against children will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate – for example, where it gives rise to a medical hardship that could not adequately be addressed within the correctional facility. It would not be appropriate to enumerate exceptional circumstances here and we make no attempt to do so. Suffice it to say that no exceptional circumstances are present in this case. A sentence of imprisonment should have been imposed.
[ 91 ] The Court of Appeal reinforced this view in R. v. BS 2023 ONCA 6, a case involving the touching of the complainant’s breasts and vagina over and under the clothes, attempted penile penetration of the complainant’s vagina, placing her hand on his erect penis, and attempting to get her to perform fellatio. After a four-day trial, the trial judge imposed an 18-month sentence. The trial judge made it clear that if the Crown had asked, he would have imposed a two-year sentence of imprisonment. The Court of Appeal, led by Justice Gillese, upheld the sentence imposed, stating at paragraph 49:
Denunciation and deterrence are the primary objectives when sentencing for sexual offences against children. Carceral sentences will ordinarily follow and conditional sentences will only rarely be appropriate. Their availability must be limited to exceptional circumstances that render incarceration inappropriate: R. v. Friesen , 2020 SCC 9, at paras. 114-116 ; R. v. M.M. , 2022 ONCA 441, at paras. 15-16 .
[ 92 ] In R. v. BM 2023 ONCA 224, the accused entered a plea to “various crimes involving the sexual abuse of two children over a period of 43 months”. The offences involved touching, anal penetration without a condom, and showing pornographic videos to one victim, and 20 to 30 instances of vaginal penetration involving the second victim. He also required her to send him intimate images. There was evidence that he started abusing the second victim because the first victim refused to have sex with him. The first victim was male, the second was his female step-sister. Although the accused ultimately pleaded guilty, there was a preliminary inquiry where both children testified. The accused suffered from schizoaffective disorder. There were also potential immigration issues as the accused was a Congolese refugee.
[ 93 ] BM is instructive on a few points. First of all, the Court of Appeal, led by Justice Harvison Young, affirmed MM, finding at paragraph 2 that “[a]bsent limited exceptional circumstances, conditional sentences for sexual offences against children will very rarely be appropriate….”
[ 94 ] Secondly, the Court of Appeal weighed in on the importance of specific evidence dealing with the relationship between the accused’s mental health and the offences, in order to trigger “exceptional circumstances”, stating at paragraphs 23 to 25 and paragraph 30:
The trial judge’s error in failing to prioritize denunciation and deterrence was compounded by his finding that there was a “significant causal connection” between the respondent’s mental illness and his criminal conduct . This finding was not supported by the evidentiary record before the court. Nor was there any evidentiary basis for the trial judge’s finding that the respondent’s treatment needs would not be met in prison. This misapprehension was a material error because the sentencing judge allowed this factor to overwhelm his consideration of denunciation and deterrence in favour of rehabilitation. [emphasis mine]
The respondent was assessed by Dr. Komer, a forensic psychiatrist, and diagnosed with a schizoaffective disorder. The assessment was ordered at the request of the respondent’s trial counsel with the consent of the Crown. It was not an NCR assessment. Dr. Komer testified at the sentencing hearing and was the only defence witness called.
Although the evidentiary record could support a finding that there is some relationship between the respondent’s mental illness and his criminal conduct, it does not go so far as to support the finding that the mental illness constituted “a significant causal connection.”
The sentencing judge’s conclusion that there was a “significant causal connection” between the respondent’s mental illness and his criminal conduct was not supported by Dr. Komer’s evidence, which was that the respondent’s alcohol and cannabis use were indirect contributing factors. There was also no evidence that “[i]mposing a custodial sentence was likely to have a serious negative effect on the appellant’s progress and would not serve the genuine societal interest”: Fabbro , at para. 27.
[ 95 ] In R. v. IC 2024 ONSC 1406, Justice Spies sentenced an accused after trial before a judge and jury to ten months in custody. The victim was his step-daughter. There was one incident where he pulled her on top of him while lying on the bed and began to move up down while playing “horsey”. He held her by the arms and refused to stop when she asked him to. She felt an erection as they bounced on the bed. The incident did not last longer than a minute or two. There was no attempt to remove her clothing.
[ 96 ] In R. v. MJ 2024 ONSC 1027, Justice Hilliard was sitting on appeal in a case where the trial judge convicted the accused after a trial of one instance of entering his eleven-year-old step-daughter’s room, when he was intoxicated and placed his hand on her vagina over her clothing and moved it in a circular direction. The trial judge imposed a sentence of fifteen months custody. The accused was a first-time offender. Justice Hilliard concluded the sentence imposed was not demonstrably unfit.
[ 97 ] In R. v. MacPherson 2024 ONCJ 57, Justice Nadel convicted the accused after a trial of repeatedly bringing a child, who was a stranger to him, into his trailer at a campground and masturbating him. Other than finding that there were multiple incidents over the course of one summer, Justice Nadel was unable to conclude how many incidents there were. He specifically rejected the evidence that it took place once or twice every weekend over the course of the summer. The accused was 61 and the victim was eight. The accused was employed as a long-haul transport driver. He had some medical conditions. Justice Nadel described his health as “stable but far from good”. He had family support. He had one prior conviction for theft over, for which he received a conditional sentence. Defence counsel sought a custodial sentence of 12 to 18 months. He did not argue for a conditional sentence. Crown sought a sentence of three years in the penitentiary. Justice Nadel imposed a sentence of two years in the penitentiary followed by three years probation.
[ 98 ] In R. v. Hall 2023 ONSC 5291, Justice Somji convicted the accused after a trial of sexually assaulting his teenage stepdaughter over a period of three years and nine months. The offences involved sexual touching of her legs, genital areas and breasts. He also exposed her to pornography. The accused is a citizen of Ireland and if sentenced to more than six months, liable to deportation. The Crown sought three years. Defence sought two years less a day conditionally, followed by probation. Although he was her stepfather, the complainant testified that he was the only father she knew. At the time of the sentencing the accused was 41. He had no prior record. He worked for a plumbing company. He had colon cancer but was in remission. He was on judicial interim release for four years without breach. Justice Somji sentenced the accused to two years less a day and two years probation.
[ 99 ] In R. v. B.R. 2023 ONSC 3380, the accused had been the 15-year-old victim’s teacher. After he was her teacher, he transferred to a different school but they stayed in touch through email. They arranged to meet and he drove them to his condo. Once at the condo, he sat beside her and began touching her thigh by rubbing it up and down. Although the touching was over the clothes, he touched her close to her underwear line. When she got up from the couch and sat on the carpet, he commented that she was feeling tense and he massaged her back and shoulders. He stated that he reminded her of his ex and kissed her neck. She ultimately told him that she had to go. He drove her to the subway. The Crown sought a sentence of three years. Defence sought a conditional sentence. The accused had no record. He is a family man who takes care of his son full time. He has good community support. He was an “outstanding” teacher. There were elements of grooming evident in the text messages he exchanged with the victim. Justice Goldstein concluded that the appropriate sentence was 18 months in custody, followed by three years probation. He stated at paragraph 37:
I do not believe that if B.R. served his sentence in the community it would endanger the safety of the community. That said, I find that a conditional sentence would insufficiently deter and denounce a crime of sexual interference committed by a teacher on a student. The Court of Appeal has emphasized that conditional sentences for sexual offences involving children will rarely be appropriate. Conditional sentences are restricted to exceptional circumstances: R. v. MM at para. 16 . There are no exceptional circumstances here justifying a conditional sentence.
[ 100 ] In R. v. H.(P.) , 2022 ONCJ 297, Justice De Filippis dealt with a case where the accused pleaded guilty to two counts of sexual interference. It is noteworthy in this case that there was a complaint to the police from one of the victims but the police did not lay charges. Years later, the investigation was reopened when the accused sent a letter to the parents of one of the victims apologizing for acting inappropriately towards her. Ultimately, there were two victims. The accused was a friend of the victims’ parents. With respect to the first victim, the accused reached under the victim’s skirt and rubbed her vaginal area over the top of her underwear on multiple occasions over a period of five years. The victim’s age was between six and seven and eleven and twelve. With respect to the second victim, the offences took place over the course of one year when the victim was six. He took her to a bunkie at a cottage and, undressed her, laid her on the bed and touched her vagina. There were “similar acts of sexual interference” that took place on “several other occasions at the victim’s home. The accused was 72 years of age. He was “in poor health, but the medical difficulties were not life threatening”. He did not have a criminal record. In imposing a carceral sentence of 18 months (nine months for each victim) Justice De Filippis stated at paragraph 14 to 16:
Notwithstanding the strong language in R v M.M. , I thought there might be a compelling argument to justify a conditional sentence in this case; not merely because an elderly, first offender, with health issues, pleaded guilty – but because of the additional fact that the defendant’s disclosure makes him accountable and recognizes the victims. However, having received the victim impact statements, I conclude that a conditional sentence is not appropriate.
The victims no longer suffer in silence and secrecy. This may allow them, and their families, to heal. For this, the defendant deserves credit. Nevertheless, the road to recovery will be long because the victims remain in pain. This was tearfully and forcefully conveyed to me by their statements. What they said underscores the message in Friesen; those who sexually interfere with children gratify themselves at the expense of the future of their victims and those around them. The sentence must reflect this wrong and this harm.
Friesen is clear; jail for sexual offences against children is now the norm. In my view, the unique circumstance in this case does not displace jail; it is properly reflected in the length of custody. The defendant’s voluntary disclosure justifies a significantly lower sentence.
[ 101 ] In R. v. RN 2022 ONCJ 145, Justice K.L. 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.
[ 102 ] Reflecting on the Victim Impact Statement, Justice McLeod found, at paragraph 6, that the abuse “has single-handedly affected every part of her life and her sense of self.”
[ 103 ] 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.
[ 104 ] 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 at paragraph 64:
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.
[ 105 ] In R. v. Green (2022), OJ 2892 (S.C.J.), Justice Gomery (as she then was) 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 touched her breast until she moved away. He told her not to tell anyone.
[ 106 ] 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.
[ 107 ] 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.
[ 108 ] 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.
[ 109 ] In R. v. Lloyd (2021) OJ 5163 (O.C.J.), 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 victim 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.
[ 110 ] In R. v. R.L. 2021 ONCJ 688, 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.
[ 111 ] 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.” The Crown sought a sentence of 15 months. Defence sought a sentence of six months. Citing TJ , 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 at pages 4-5,
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.
[ 112 ] 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 Ontario Correctional Institute.
Assessment
Mitigating Factors
[ 113 ] The accused is entitled to substantial mitigation for his guilty plea. He admitted responsibility to the police and gave a full inculpatory statement. This is not a case where, absent the inculpatory statement, the Crown’s case was overwhelming. Like the accused in RL, AL’s acceptance of responsibility spares the victim the trauma of testifying in court and the indignity that he would deny the truth.
[ 114 ] The accused is entitled to mitigation for the fact that he has been on bail since his arrest in 2021 without incident.
[ 115 ] I accept that he is remorseful for his offences. That is not only reflected in his guilty plea and his early admission of responsibility to the police but in his address to me in Court, which I thought was heartfelt and honest.
[ 116 ] The accused lived a pro-social life and was a contributing member to society. He was a member of the Canadian Forces and served four tours of duty that put him in Bosnia and Afghanistan where he saw horrible things. Like many veterans, he has struggled to get counselling and treatment for what he went through. Even if the issue of a link between his sexual offending and this experience is not well understood and requires further study, this simply has to be mitigating. It stands to reason that because of what he went through, imprisonment will be very difficult for him.
[ 117 ] The accused has an intellectual disability. He repeated Grade 4. Dr. Chaimowitz’s report indicates that he is in the “borderline intellectual range” (fifth percentile).
[ 118 ] The accused has been subject to adverse childhood experiences (ACES). His childhood was discussed extensively in the Pre-Sentence Report and in the section 21 report. This must have had an impact upon him. Recently, in R. v. PC 2024 ONCJ 315, I commented as follows in the case of adult offender with a low IQ and significant ACES. I stated:
….As Professors Randall and Haskell stated in Trauma-Informed Approaches to Law: Why Restorative Justice Must Understand Trauma and Psychological Coping, 213 36-2 Dalhousie Law Journal 501 at pages 515 to 516.
Why is understanding trauma so important for people working within law, and in particular, the criminal justice system? Given the widespread problems of childhood abuse, violence and neglect, large numbers of people are dealing with trauma responses, which often (not always) lead to substance abuse problems and conflict with the law. Studies show that between seventy-five per cent and ninety-three per cent of those entering the juvenile justice system have experienced trauma. The Adverse Childhood Experiences study, one of the largest epidemiological investigations ever conducted in North America to assess associations between childhood maltreatment and health and well-being later in life, found that the economic costs of untreated trauma-related alcohol and drug abuse were estimated at $161 billion in 2000.
How and why people are capable of insight and behaviour change is a complex area which is both seriously under-theorized and under-attended to in law in general, as well as in restorative justice approaches to law. Most areas of law are organized around simplistic assumptions about humans as rational maximizers of their own self-interest, undertaking cost benefit assessments of their actions and the possible reactions to them. Criminal law, in particular, operates on the assumption that deterrence dissuades people from engaging in criminal behaviour by imposing penalties (such as a criminal record and imprisonment) that they will want to avoid. In this view, however, people's choices to commit crimes must be either based on information deficits or miscalculations of the risks associated with criminal conduct.
Research has demonstrated the interconnection between histories of violence and abuse, traumatic experiences, and criminal behaviour. This does not mean that violence and abuse in life creates or causes criminality in a simplistic or linear way, or that those who commit crime can merely "blame it on" their previous experiences of violence, abuse, or neglect. Still, it does mean that there are complex interconnections between people's life experiences, opportunities, choices and chances, and their personal histories, including trauma histories. As one researcher observes: "child abuse and neglect, poverty, sexual molestation, and witnessing violence are, among others, the most common risk factors for post-traumatic reactions, aggression, and antisocial behaviour."
[Emphasis Mine]
A recent report from the World Health Organization found that approximately 58% of North American adults suffered from at least one ACE and 35% suffered from more than one: World Health Organization, Tackling Adverse Childhood Experiences ACEs): State of the Art and Options for Action, 2023 at page 10. The results for incarcerated individuals are even higher, suggesting a strong correlation between ACEs and criminality. A 2023 Correctional Service of Canada Study found that 80% of men and 86% of women in federal inmate population have experienced at least one ACE: Sheahan, C. and Wardrop K. (2023) The adverse childhood experiences of Canadian federal offenders: Available information and correctional outcomes (Research Report R-445) Ottawa, Ontario: Correctional Service of Canada.
In addition…. [a] 2022 Swedish study found that offenders with intellectual disability are much more likely to have a sexual crime as an index crime: Edberg, H.; Chen, Q; Andine, P; Larsson, H. and Hirvikoski, T., Crimes and sentences with individuals with intellectual disability in a forensic psychiatric context: a register-based study : Epidemiology and Psychiatric Sciences 2022; 31: e2.
[ 119 ] In my view, the combination of AL’s history of Adverse Childhood Experiences, his intellectual disability, and his likely PTSD as a result of his military service are sufficient for me to find that he meets the criteria for diminished moral blameworthiness.
[ 120 ] To find otherwise would be tantamount to ignoring things that obviously lurk in the background of AL’s personality. To find otherwise or insist on there being strict evidence between these background elements of who AL is and his offending behaviour, not only defies the existence of the not well understood “complex interconnections” referred to in the literature above, it defies common sense and experience.
[ 121 ] As I will discuss, unfortunately, none of this diminishes the significant risk that AL poses to the public, which must be addressed by any sentence I impose. These background elements work to inform the overarching sentencing principle of proportionality, the principle of restraint and the need to impose a sentence that will be effective in rehabilitating the accused. These background elements also work to somewhat temper the otherwise paramount principle of deterrence and denunciation.
Aggravating Factors
[ 122 ] AL is therefore not deserving of a carceral sentence solely to deter and denounce his behaviour. He is also deserving of a carceral sentence because it is the only way to protect the public and reduce the future risk that he poses to the public by treating the multiple disorders he suffers from.
[ 123 ] As much as AL’s multiple mental health diagnoses may be mitigating in the sense that they work to reduce his moral blameworthiness, the truth is that they are also aggravating in that they increase the need for extensive treatment.
[ 124 ] Additionally, I also find that his mental health diagnoses, including his intellectual functioning may actually lengthen the time that will be required for him to complete meaningful treatment.
[ 125 ] AL has significant sexual behaviour disorders, including pedophilia, fetishism and hypersexuality.
[ 126 ] AL represents, in the opinion of Dr. Chaimowitz and Dr. Moulden, an above-average risk to reoffend sexually. It is hypothesized that his reoffence will involve a contact offence with a child. There is no nice way to put it: it is the opinion of the experts that if given the opportunity, he is at above average risk to reoffend. In addition to needing extensive cognitive and dialectical behaviour therapy, he needs to consider pharmacological intervention to reduce his risk.
[ 127 ] The abuse that he was subjected to as a child and the horrors he witnessed in the military have to be unpacked and treated.
[ 128 ] AL uses cannabis and he has used it for a long time. He meets the requirements for the diagnosis of cannabis use disorder. This is well known to increase risk of reoffence and interfere with other drugs used to treat other disorders.
[ 129 ] AL meets the requirements for the diagnosis of borderline personality disorder which can be extremely difficult to treat.
[ 130 ] AL endorses a very high score in an instrument that measures anger.
[ 131 ] AL does not enjoy broad community support. He is a loner and a recluse. Thank goodness for his ex-wife or he would essentially have no one.
[ 132 ] While he has been out of custody for a significant period of time without reoffence, he has not demonstrated that he has used that time wisely to engage in treatment that would assist the Court in finding that his risk has been reduced by out of custody treatment. While I do not diminish the efforts that he has now started to make, he has a very long way to go and I am not satisfied that he will receive the intensive treatment that he needs in the community. I agree with his counsel that the work that AL has started to do is a good basis upon which to be hopeful and optimistic. But hope and optimism are not enough to foster the long-term protection of the public. Nor are they enough to constitute “exceptional circumstances”.
The Appropriate Sentence
[ 133 ] In the final analysis, although I find that there are many reasons to find that AL’s moral blameworthiness for the offence that he has committed is attenuated – and this tempers the need to impose a carceral sentence on the basis of denunciation and deterrence -- the fact remains that a conditional sentence is not sufficient to protect the public from the risk that he poses.
[ 134 ] I therefore impose a sentence of two years in the penitentiary. Neither Crown nor defence called evidence in relation to whether AL would receive better treatment if he was given a penitentiary sentence of two years or a reformatory sentence of two years less one day. In this case, I have decided to impose a penitentiary sentence.
[ 135 ] I also impose the maximum period of probation, which is three years.
[ 136 ] This essentially means that AL will be subject to some form of supervision for total period of five years. As the Crown pointed out, this level of supervision would not be available if I sentenced him to three years in the penitentiary.
[ 137 ] I recommend that, to the extent possible, AL be housed in a facility that pays heed to his likely PTSD as a result of his adverse childhood experiences and his military service. I am mindful that there is a high risk that incarceration will make his mental health worse, not better. I specifically recommend that he be considered for placement at the Regional Treatment Centre at the Bath Institution.
[ 138 ] I recommend that, to the extent possible, AL receive treatment that takes into account his borderline intellectual ability.
[ 139 ] I make an Order pursuant to section 743.21 of the Criminal Code that AL will have no contact or communication directly or indirectly with KB, EH, or any member of their immediate family by any physical, electronic or other means, while he is serving the carceral portion of his sentence.
[ 140 ] I make an Order for the taking of his DNA for inclusion on the National DNA Databank. This is a primarily designated offence.
[ 141 ] I make a firearms prohibition Order pursuant to section 109 of the Criminal Code for a period of ten years.
[ 142 ] I make an Order requiring AL to comply with the Sex Offender Information Registration Act for a period of twenty years. I note that both section 490.012(1) and (3) apply in this case, which mandates a twenty-year order under section 490.013(2)(b).
[ 143 ] With respect to the factors I am required to consider in section 490.012(3) and (4), I am satisfied that, on the basis of all the evidence I have heard, and specifically given the risk to the public that AL poses, that there is a connection between the making of this Order and the purpose of helping police prevent and investigate crimes of a sexual nature, particularly those against children.
[ 144 ] I am also satisfied, given all the evidence that I have heard, that the impact of the making of this Order on the privacy and liberty of AL is not grossly disproportionate to the public interest in protecting society through the effective prevention and investigation of crimes of a sexual nature, particularly those against children.
[ 145 ] Finally, I am mindful of the fact that the new legislation allows for an opportunity for AL to apply to the Court to terminate the Order earlier under sections 490.015 and 490.016 at the ten-year mark. This safeguards against the possibility that a twenty-year order becomes disproportionate given the passage of time and attenuation of the risk posed through meaningful treatment in and out of custody.
[ 146 ] With respect to the request for a section 161 Order, I Order as follows:
a) You are prohibited from being within 250 meters of any place you know KB to live, work, go to school, frequent or any place you know her to be likely to be.
b) You are prohibited from seeking, obtaining or continuing in 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) Except for brief incidental contact in a public place, you are prohibited from having any contact with any person under the age of 16 years, unless you do so in the presence of the person’s parent or guardian who is aware of the nature of your offending behaviour.
d) You are prohibited from using the Internet or any other digital network for the purpose of communicating with any person under the age of 16 years.
e) This Order will remain in place for a period of 10 years.
Released: July 8, 2024 Signed: Justice J.R. Richardson