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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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 08 12 Court File No.: Brockville 998 22 19100359

BETWEEN:

HIS MAJESTY THE KING

— AND —

ANTHONY IFILL

Before: Justice Kimberly E.M. Moore

Heard on: July 24 and 29, 2024 Reasons for Judgment released on: August 12, 2024

Counsel: Tasha Bobrovitz, counsel for the Crown Richard Addelman, counsel for the accused Anthony Ifill

MOORE J.:

Children are the future of our country and our communities. They are also some of the most vulnerable members of our society. They deserve to enjoy a childhood free of sexual violence. Offenders who commit sexual violence against children deny thousands of Canadian children such a childhood every year. This case is about how to impose sentences that fully reflect and give effect to the profound wrongfulness and harmfulness of sexual offences against children (R. v. Friesen 2020 SCC 9).

[1] On April 4, 2024, I found Mr. Ifill guilty of sexual assault, committed upon A.G. between May 1, 1994 and September 30, 1994. A.G. was 11 years old at the time.

[2] The matter was adjourned so that a Pre-Sentence Report could be prepared.

[3] Submissions on sentence were made on July 24 and 29, 2024.

Factual Background

[4] The facts pertaining to this matter were set out in my Reasons for Judgment on April 4, 2024. As such, I will only briefly address them here.

[5] I found that Mr. Ifill committed two separate acts upon Ms. G., in the Spring or Summer of 1994.

[6] On the first occasion, Ms. G. went to give Mr. Ifill a hug goodbye when he was leaving her home. Mr. Ifill lowered his head and Ms. G. thought he was going to give her a peck. Instead, Mr. Ifill put his tongue inside of her mouth. She did not understand why this happened, and she was grossed out and alarmed by his saliva.

[7] The second incident also took place in her home. Ms. G. was asleep in the top bunk in the room she shared with her younger brother. Mr. Ifill came into the room and put his hand under the blankets, and inside of her pajama pants. Mr. Ifill’s hand did not go between her legs. His fingertips moved around on her pubic bone. Ms. G. was shocked and mortified as she was going through puberty, and Mr. Ifill would thus know that she had pubic hair.

[8] At some point after the touching in her bedroom, she and her mother were at Mr. Ifill’s residence. Mr. Ifill asked her to come into the spare room, and he told her she could not tell anybody what had happened the other night. She said okay, and left the room crying.

[9] On a subsequent occasion, she was laying in her bed at home, and Ms. G. overheard her mom saying that she needed to go do something, and she heard Mr. Ifill say that he would be OK to watch them.

[10] Mr. Ifill then came to Ms. G.’s bedroom, and stood near the bed. He said, “can I?” Ms. G. replied, “can you what?” Mr. Ifill said, “can I touch you?”. Ms. G. started to cry and Mr. Ifill said, “oh okay” and he left the room.

Positions of the Parties

[11] Both counsel agree that a custodial sentence is necessary in the case before me.

[12] However, Mr. Addelman submitted that Mr. Ifill should be permitted to serve this custodial sentence in the community.

[13] Mr. Addelman submitted that a conditional sentence of 9-12 months would be appropriate. Mr. Addelman focused on the mitigating factors as well as the passage of time since the offence.

[14] Mr. Addelman submitted that sending Mr. Ifill to jail thirty years after the offence is not going to send the right message. Mr. Addelman asked the Court to find that a conditional sentence could be punitive by imposing a period of house arrest with exceptions to allow him to continue his employment, and by requiring Mr. Ifill to attend for counselling.

[15] Mr. Ifill is entitled to the benefit of the least restrictive sentence available, that being either the sentence that was available at the time of the offence, or at the time of the sentencing (R. v. Poulin, 2019 SCC 47). In the case at bar, that would be the sentence that was available at the time of the offence.

[16] As such, the maximum sentence for sexual assault pursuant to section 271 of the Criminal Code is 10 years in custody, and there is no minimum sentence.

[17] Ms. Bobrovitz submitted that the appropriate sentence in this case, taking into account the aggravating and mitigating factors, is one 18-24 months. Ms. Bobrovitz asked the Court to consider the sentence imposed in R. v. Lloyd, (unreported: February 18, 2021; O.C.J.), as a starting point due to the factual similarities, but also asked the Court to consider that Mr. Ifill sexually assaulted Ms. G. on two separate occasions.

[18] Given the positions of the parties, a conditional sentence is an available sentence in Mr. Ifill’s case if I find that “the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2”. [2]

[19] Both counsel agree that the community would not be endangered if Mr. Ifill is permitted to serve the sentence in the community. Where counsel diverge is on the issue of whether a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2

[20] I thank both Mr. Addelman and Ms. Bobrovitz for their very comprehensive sentencing materials and submissions.

Principles of Sentencing

[21] The purpose, principles and objectives of sentencing are set out in Part XXIII of the Criminal Code. I will address a number of these at this time.

Purpose and Objectives of Sentencing

[22] Section 718 of the Criminal Code is the starting point for all sentencing matters. This section states as follows:

The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) to denounce unlawful conduct and the harm done to victims or to the community that is caused by unlawful conduct;

(b) to deter the offender and other persons from committing offences;

(c) to separate offenders from society, where necessary;

(d) to assist in rehabilitating offenders;

(e) to provide reparations for harm done to victims or to the community; and

(f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims or to the community.

[23] In the case before me, while each of the objectives above are important, section 718.01 of the Criminal Code indicates that, “[w]hen a court imposes a sentence for an offence that involved the abuse of a person under the age of eighteen years, it shall give primary consideration to the objectives of denunciation and deterrence of such conduct.”

[24] The caselaw also supports that denunciation and deterrence must be the paramount objectives in sentencing where the victim of a sexual offence is a child (R. v. G.S., 2023 ONCA 712; R. v. D’Orazio, 2024 ONCJ 807 (S.C.J.); R. v. M.M., 2022 ONCA 441).

[25] As indicated above, Mr. Addelman asked that I consider the passage of time in this case, when determining the appropriate sentence.

[26] In R. v. M.S., 2024 ONSC 1281 the Court addressed the passage of time between the offence and conviction as it pertains specifically to the sentencing objectives of denunciation and deterrence, stating as follows:

35 There are some mitigating factors in the offender's case. He has no criminal record. He is gainfully employed and has the support of his family and friends, including members of his church. These factors bode well for his rehabilitation. I cannot agree with the defence that the passage of time between his arrest and this sentencing is a mitigating factor that can lower his sentence. General deterrence and denunciation are not affected by the passage of time: R. v. H.S., 2014 ONCA 323 at para. 54. And the Court of Appeal has made clear that "in the absence of a demonstration of remorse and acceptance of responsibility, the passage of time cannot mitigate in cases of historical sexual abuse": R. v. Brown, at para. 14; R. v. W.W.M., 206 OAC 342, at para. 24.

[27] In R. v. I.C., 2017 BCPC 62 the Court clearly set out why a guilty plea in historical sexual abuse matters is so mitigating:

90 The most significant mitigating factor which militates towards a conditional sentence is that Mr. C. admitted to the offences at the outset and pleaded guilty. He did so voluntarily, unequivocally, and without inducement. He spared the victims the trauma of having to testify in court against him. Historical sexual assaults are notoriously difficult to prosecute. They give rise to a range of complex legal and evidentiary issues. Invariably, sexual assaults against children are perpetuated in secret. The passage of time inevitably means the loss of evidence: witnesses, memory, forensic, and medical. Rarely are there eye witnesses who were present or can be located and recall the events. Generally, there are no recorded injuries or DNA or other confirming evidence. In this case, the prosecution is entirely dependent on the evidence of Ms. J.P. and Ms. V.A. They would have to testify about events which occurred when they were children. They will likely find it difficult to remember precise details, yet their credibility will be the crucial issue at trial. By pleading guilty to the offence, Mr. C. has forfeited his right to have the Crown prove the offence beyond a reasonable doubt. The victims and the community do not have to live with the uncertainty attendant upon a trial. (See: Madam Justice Griffin comments in: C.G.D., at para. 32.)

[28] I rely on these cases to find that the passage of time in the case before me, is neither a mitigating factor, nor a factor that can detract from the need to ensure that deterrence and denunciation are the most paramount considerations.

Sentencing Principles

[29] Sentencing principles that I must consider in this matter include those of proportionality, parity, and restraint.

Proportionality and Parity

[30] Proportionality is defined in section 718.1 of the Criminal Code as the fundamental sentencing principle that Judges must adhere to.

[31] In Friesen the Court held that achieving parity in sentencing is informed by a proper application of the principle of proportionality. The Court stated that:

30 All sentencing starts with the principle that sentences must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principle of proportionality has long been central to Canadian sentencing (see, e.g., R. v. Wilmott, [1966] 2 O.R. 654 (C.A.)) and is now codified as the "fundamental principle" of sentencing in s. 718.1 of the Criminal Code.

31 Sentencing judges must also consider the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences. This principle also has a long history in Canadian law (see, e.g., Wilmott) and is now codified in s. 718.2 (b) of the Criminal Code.

32 Parity and proportionality do not exist in tension; rather, parity is an expression of proportionality. A consistent application of proportionality will lead to parity. Conversely, an approach that assigns the same sentence to unlike cases can achieve neither parity nor proportionality (R. v. L.M., 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 36-37; R. v. Ipeelee, 2012 SCC 13, [2012] 1 S.C.R. 433, at paras. 78-79).

33 In practice, parity gives meaning to proportionality. A proportionate sentence for a given offender and offence cannot be deduced from first principles; instead, judges calibrate the demands of proportionality by reference to the sentences imposed in other cases. Sentencing precedents reflect the range of factual situations in the world and the plurality of judicial perspectives. Precedents embody the collective experience and wisdom of the judiciary. They are the practical expression of both parity and proportionality.

[32] The Court in Friesen then specifically addressed proportionality when sentencing an offender for sexual offences committed against children:

88 Intentionally applying force of a sexual nature to a child is highly morally blameworthy because the offender is or ought to be aware that this action can profoundly harm the child. In assessing the degree of responsibility of the offender, courts must take into account the harm the offender intended or was reckless or wilfully blind to (Arcand, at para. 58; see also M. (C.A.), at para. 80; Morrisey, at para. 48). For sexual offences against children, we agree with Iacobucci J. that, save for possibly certain rare cases, offenders will usually have at least some awareness of the profound physical, psychological, and emotional harm that their actions may cause the child (Scalera, at paras. 120 and 123-24).

90 The fact that the victim is a child increases the offender's degree of responsibility. Put simply, the intentional sexual exploitation and objectification of children is highly morally blameworthy because children are so vulnerable (R. v. Morrison, 2019 SCC 15, [2019] 2 S.C.R. 3, at para. 153). As L'Heureux-Dubé J. recognized in R. v. L.F.W., 2000 SCC 6, [2000] 1 S.C.R. 132"As to moral blameworthiness, the use of a vulnerable child for the sexual gratification of an adult cannot be viewed as anything but a crime demonstrating the worst of intentions" (para. 31, quoting R. v. L.F.W. (1997), 155 Nfld. & P.E.I.R. 115 (N.L.C.A.), at para. 117, per Cameron J.A. ("L.F.W. (C.A.)")). Offenders recognize children's particular vulnerability and intentionally exploit it to achieve their selfish desires (Woodward, at para. 72). We would emphasize that the moral blameworthiness of the offender increases when offenders intentionally target children who are particularly vulnerable, including children who belong to groups that face discrimination or marginalization in society.

[33] In the case before me, Mr. Ifill’s moral culpability is very high given Ms. G.’s age, and the fact that this was not an isolated incident. As clearly indicated in the Victim Impact Statement, Mr. Ifill’s actions have had a long-lasting and profound impact up Ms. G..

[34] Ms. Bobrovitz submitted that the Court should find that Mr. Ifill was in a position of trust towards Ms. G.. If Mr. Ifill was in a position of trust, then I would carefully consider the direction in Friesen that, “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.” [3]

[35] I am mindful that there is a spectrum of trust, and that there are many factors to weigh in determining whether a person is in a position of trust (R. v. Bertrand Marchand, 2023 SCC 26, [2023] S.C.J. No. 26; R. v. Audet, [1996] S.C.J. No. 61 (S.C.C.); R. v. M.A.B., 2021 ONCJ 4275).

[36] In R. v. P.S. the Court addressed positions of trust and authority as follows:

36 One needs to keep in mind that what is in question is not the specialized concept of the law of equity, called a "trust". What is in question is a broader social or societal relationship between two people, an adult and a young person. "Trust", according to the Concise Oxford Dictionary (8th ed.), is simply "a firm belief in the reliability or truth or strength of a person". Where the nature of the relationship between an adult and a young person is such that it creates an opportunity for all of the persuasive and influencing factors which adults hold over children and young persons to come into play, and the child or young person is particularly vulnerable to the sway of these factors, the adult is in a position where those concepts of reliability and truth and strength are put to the test. Taken together, all of these factors combine to create a "position of trust" towards the young person.

37 I take a "position of trust" to be somewhat different than a "position of authority". The latter invokes notions of power and the ability to hold in one's hands the future or destiny of the person who is the object of the exercise of the authority: see, R. v. Kyle (1991), 68 C.C.C. (3d) 286 (Ont. C.A.). A position of trust may, but need not necessarily, incorporate those characteristics. It is founded on notions of safety and confidence and reliability that the special nature of the relationship will not be breached.

[37] Mr. Addelman submitted that Mr. Ifill was not in a position of trust or authority towards Ms. G.

[38] Ms. Bobrovitz acknowledged that Mr. Ifill was not in a position of authority, and conceded that the position of trust was at the low end of the spectrum.

[39] Ms. Bobrovitz indicated that that the position of trust in this case is primarily based on the trust that Ms. M. had in Mr. Ifill.

[40] I carefully reviewed the findings of Wheeler, J. in Lloyd, supra, wherein the accused had been found to be in a position of trust. I find that there is a distinction between the two cases. In Lloyd, Wheeler J. stated that, “JPL described Mr. Lloyd as her mother's best friend. JPL said she was close to Mr. Lloyd and that he was like a father to her. He would take her places. He was also someone she could talk to about her problems…” [4]

[41] In the case before me, I find that there was very little connection between Ms. G. and Mr. Ifill. There are some unique challenges in a case such as this one, where thirty years has passed, and the views of relationships may have changed or faded. From the evidence before me, Ms. M. trusted Mr. Ifill, and had no reason to believe he would harm her child. However, there was no evidence that Ms. M. tried to make Mr. Ifill a real part of the family, or anything more than the boyfriend who she saw when she could between her many jobs.

[42] I acknowledge that Mr. Ifill spent time at Ms. G.’s home when she was there, but there was no evidence that Ms. G. had an actual relationship with Mr. Ifill. There was no evidence that Ms. G. considered Mr. Ifill to be anything more than her mother’s boyfriend. There was no evidence that Ms. G. considered Mr. Ifill to be her friend, or that she trusted him any more than a child trusts any adult.

[43] I expect that the passage of time, and the fact that Ms. M. and Ms. G. have much different lives now, makes it more challenging for them, and thus the Court, to assess the full extent of the relationship they had with Mr. Ifill. However, on the specific facts before me, I cannot find that Mr. Ifill was in a position of trust towards Ms. G..

Restraint

[44] In R. v. Proulx, 2000 SCC 5, [2000] S.C.J. No. 6, the Court stated as follows:

Parliament has sought to give increased prominence to the principle of restraint in the use of prison as a sanction through the enactment of s. 718.2(d) and (e). Section 718.2(d) provides that "an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances", while s. 718.2(e) provides that [page80] "all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders". Further evidence of Parliament's desire to lower the rate of incarceration comes from other provisions of Bill C-41: s. 718(c) qualifies the sentencing objective of separating offenders from society with the words "where necessary", thereby indicating that caution be exercised in sentencing offenders to prison… [5]

[45] In R. v. Sousa, 2023 ONCA 100, the Ontario Court of Appeal indicated that:

[37] Finally, the principle of restraint should be applied to first offenders. This court explained the principle in R. v. Batisse (2009), 2009 ONCA 114, 93 O.R. (3d) 643, [2009] O.J. No. 452, at paras. 32-35. This court has noted that the sentence imposed on a first offender should be as short as possible and be tailored to the individual circumstances of the accused: R. v. Priest (1996), 30 O.R. (3d) 538, [1996] O.J. No. 3369 (C.A.), at p. 545 O.R. Rehabilitation is an aspect of restraint: R. v. Blanas, [2006] O.J. No. 364, 207 O.A.C. 226 (C.A.), at para. 5. This principle applies with particular force to youthful offenders: R. v. Dubinsky, [2005] O.J. No. 862, at para. 1.

[46] Mr. Ifill has no criminal record. Although not youthful, he is a first-time offender. As such, the Court must pay close attention to the principle of restraint.

Mitigating Factors

[47] Mr. Ifill chose, as is his right, to not address the Court at the sentencing hearing.

[48] However, Mr. Ifill’s counsel made thorough submissions on his behalf, and I have the benefit of the Pre-Sentence Report that was prepared.

[49] This Pre-Sentence Report is a positive one, and while brief, it permits me to have insight into the person Mr. Ifill is today.

[50] Mr. Ifill is now 60 years of age. He has no criminal record, and there is no indication that Mr. Ifill has ever had any involvement in the criminal justice system. In particular, there is no indication that he has offended against any other child or person.

[51] Mr. Ifill is employed, and he has always been an industrious and hard-working member of the community. His work ethic since coming to Canada when he was 28 years of age is very admirable.

[52] Mr. Ifill has the support of his family and friends, and he is a pro-social member of his community.

Aggravating Factors

[53] Ms. G. was eleven years old and she was just beginning puberty at the time of the offences. She was shocked, confused and embarrassed by Mr. Ifill’s actions. Ms. G. was an adolescent.

[54] As stated in Friesen, “courts must also be particularly careful to impose proportionate sentences in cases where the victim is an adolescent. Historically, disproportionately low sentences have been imposed in these cases, particularly in cases involving adolescent girls, even though adolescents may be an age group that is disproportionately victimized by sexual violence (Benedet, at pp. 302, 304 and 314; L. (D.O.), at pp. 464-65, per L'Heureux-Dubé J.).” [6]

[55] It is aggravating that Mr. Ifill sexually assaulted Ms. G. on two occasions, with the second incident escalating in seriousness.

[56] It is particularly aggravating that Mr. Ifill communicated a desire to touch Ms. G. again, as this speaks to his intention to continue the sexual abuse of a child, and a complete lack of insight into the impact on this child.

[57] While there is no evidence that Mr. Ifill ever threatened Ms. G., it is aggravating that he told her not to tell anyone what happened in her room. The acts committed by Mr. Ifill were frightening enough, but the impact is exacerbated when a child is told to carry this burden on her own.

[58] The impact on Ms. G. is the most aggravating factor in this case. The pain in Ms. G.’s Victim Impact Statement was palpable. Ms. G. lived with this pain for almost thirty years, before reporting it. Her Victim Impact Statement speaks of feeling betrayed by all of those people who were to keep her safe, and not just Mr. Ifill.

[59] I will include a number of passages from Ms. G.’s Victim Impact Statement as I cannot do her words justice by paraphrasing them:

I have spent so many years being afraid; afraid to go out alone, to speak up, to get too close to people. I often felt as though I was crumbling, depleted and weak on the inside.

I had hoped that as the years went on I would forget about this crime, but unfortunately the memories seemed to appear more and more often. The more I realized and experienced the astronomical responsibility and privilege it is to care for a child, the more the incident would appear in my mind, over and over again.

Again, I'd ask myself: Who could do this to a child? Who could do this to me?

Finally, I realized I didn't deserve to suffer any longer. In fact, I never deserved to suffer. I was spending years of my life reliving something that I never deserved to experience. No one deserves to experience it. Eleven-year-old me needed someone to stick up for her; to take action that would help ease her anxiety.

And, so, today, after going through this entire process, I feel great relief. As terrible as this has been to have to verbally explain all that occurred, I no longer have to experience the memories appearing and reappearing in my mind.

I'm so grateful to have been heard and believed. I'm so grateful to feel free.

Other Factors

[60] The Pre-Sentence Report indicates that Mr. Ifill neither agrees nor disagrees with the official circumstances of the offence.

[61] The Pre-Sentence Report also indicated that Mr. Ifill “was unsure how the current charges would affect the victim noting he does not remember the named victim.” This is a disingenuous comment by Mr. Ifill as he testified at trial as to a specific memory of Ms. G.’s shy demeanour.

[62] I raise this only to address Mr. Ifill’s lack of insight into his offending.

[63] In R. v. Reeve, 2020 ONCA 381, the Ontario Court of Appeal indicated that:

[11] A genuine expression of remorse can constitute an important mitigating consideration at the time of sentencing. When an offender demonstrates, through actions and/or words, that he or she is genuinely remorseful for his or her conduct, it can show that the offender has some insight into his or her past actions and takes responsibility for them. Taking responsibility for past conduct is an important step toward rehabilitation and gives cause for hope that the offender may be set on a path of change. The greater the genuine insight into past offending behaviour, the greater the cause for hope.

[64] The Pre-Sentence Report does not specifically address Mr. Ifill’s views towards assessment, treatment and counselling. However, Mr. Addelman advised his client is prepared to engage in same.

[65] Given Mr. Ifill’s otherwise pro-social conduct, I conclude that Mr. Ifill will engage in whatever is directed by the probation officer, and thus it is hoped that Mr. Ifill will gain insight into his offending, and perhaps even develop remorse for his actions.

[66] In Reeve the court also stated that:

[12] While a genuine expression of remorse can serve to mitigate a sentence, the opposite is not true. An offender cannot be punished for a lack of remorse. The reason is clear. Punishing an accused for failing to express remorse comes "perilously close" to punishing him or her for exercising the right to make full answer and defence: R. v. Valentini (1999), 43 O.R. (3d) 178, [1999] O.J. No. 251 (C.A.), at para. 83. Even after a guilty verdict, an accused is entitled to maintain his or her innocence and cannot be punished for maintaining that stance.

[67] I address this passage simply to ensure that Mr. Ifill is aware that I do not consider his lack of insight and remorse as an aggravating factor.

Range of Sentence

[68] Sentencing is a very individualized process. Starting points and ranges of sentence are to be guidelines, and are not meant to be inflexible (R. v. Parranto, 2021 SCC 46; R. v. Friesen, 2020 SCC 9).

[69] In Friesen, the Court declined to impose a national range of sentence for sexual offences committed against children. The Court held that this was better left to the Court of Appeal in each province.

[70] However, in Friesen, the Court stated that:

107 We are determined to ensure that sentences for sexual offences against children correspond to Parliament's legislative initiatives and the contemporary understanding of the profound harm that sexual violence against children causes. To do so, we wish to provide guidance to courts on three specific points:

(1) Upward departure from prior precedents and sentencing ranges may well be required to impose a proportionate sentence;

(2) Sexual offences against children should generally be punished more severely than sexual offences against adults; and,

(3) Sexual interference with a child should not be treated as less serious than sexual assault of a child.

[71] Mr. Addelman filed a number of cases in which a conditional sentence was imposed for sexual offences committed against a child. Each of these cases post-date Friesen. I will review these below.

R. v. K.K., 2020 ONSC 7198.

[72] The accused was the grandfather of the victim’s friend. He was found guilty after trial of touching the victim over a period of 3 years. The Court considered a number of factors in determining that a conditional sentence of 2 years less a day was appropriate, including the following:

i. the accused had significant health issues which could have put him at risk in custody;

ii. the accused had been a victim of a brutal regime in Cambodia and had escaped that country as a refugee; and most significantly

iii. this matter was before the Court in October 2020, at the height of the COVID-19 pandemic.

R. v. P.S., 2021 ONSC 5091.

[73] The 71-year old accused was found guilty after trial of performing oral sex on the victim on at least three occasions in 1988 (33 years before conviction). There was evidence presented by doctors as to the number of medical issues that the accused had, and which would put the accused at risk (including Parkinson’s disease). The medical evidence confirmed that medications and specialty care for movement and diet, must be strictly adhered to.

[74] In addition, the accused had gained insight into his offending post-conviction. The judgment indicates that, “P.S. advised the pre-sentence report writer that he had grown to understand why he is guilty of sexual exploitation, stating that he had used “bad judgment” and was regretful for his actions.”

[75] Despite the significant aggravating factors in this case, the Court relied upon this insight and held that the accused’s medical conditions could not be properly addressed in custody, and thus imposed a conditional sentence of 2 years less a day.

R. v. Campbell, 2021 BCSC 323 (B.C. Supr. Crt.).

[76] The 66-year-old accused was found guilty of sexual assault for “inappropriately massaging” the victim who was 9-11 at the time. The offences took place approximately 23-25 years earlier. The Court considered the breach of trust and impact on the victim, and also noted that the incident was one event and found that the level of interference with the victim’s bodily integrity was not as invasive as in other cases. [7]

[77] The Court also found that the accused had a ways to go in fully accepting responsibility, but did note that the accused had made “a genuine apology to the complainant and to the Court, and that he truly regrets the harm that he acknowledges he caused to the complainant and to the complainant’s family.” [8]

[78] In this case, the Crown sought a sentence of 9-12 months in-custody, or in the alternative a conditional sentence of 18-24 months. The Defence sought a conditional sentence of 6 months or more. The Court imposed a 12-month conditional sentence.

R. v. Gunaratnam, 2021 ONSC 8270.

[79] The 60-year old accused was found guilty after trial of committing a breach of trust sexual assault upon the victim. The victim was between 7 and 13 when the sexual touchings took place, and the offences had been committed 30-40 years previously. After the accused was convicted of this offence, he plead guilty to sexual interference pertaining to an offence on a different victim (this offence took place 15-25 years after the first offences). The Crown and the defence presented a joint submission for a conditional sentence.

[80] Schrek, J. held that:

33 Section 742.1 (a) of the Criminal Code sets out two prerequisites for such a sentence. The first is that service of the sentence must not endanger the safety of the community. I am satisfied that it would not in this case. The offences took place long ago and there is no suggestion of any further criminal conduct since then. Mr. Gunaratnam has been on bail since 2018 and as far as I am aware has abided by his bail conditions.

34 The second prerequisite in s. 742.1(a) is that a conditional sentence must be "consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2." In light of the dicta in Friesen, I have serious reservations in this regard. Ordinarily, I would not hesitate in rejecting a conditional sentence in the circumstances of this case. The only reason I am considering it is because there has been a joint submission. Whether that fact justifies what I would otherwise view as an overly lenient sentence is the issue to which I now turn.

[81] The court then carefully applied the principles in R. v. Anthony-Cook, 2016 SCC 43, and ultimately held that:

37 In this case, while there was no guilty plea to the Toronto charges, there was to the British Columbia charges. In her VIS, Ms. Sivakumaran described the emotional toll of not only the offence, but of the criminal process which has been ongoing for four years. Mr. Gunaratnam's guilty plea put that ordeal to an end for her. As observed in Anthony-Cook, at para. 39"[w]hen an accused pleads guilty in exchange for a joint submission on sentence, victims ... are spared the 'the emotional cost of a trial' (R. v. Edgar, 2010 ONCA 529, 101 O.R. (3d) 161, at para. 111)."

38 Would the joint submission in this case lead a reasonable and informed person to believe that the "the proper functioning of the justice system has broken down"? Having considered the matter carefully, I have concluded that it would not. While a conditional sentence for offences of this type will usually be inappropriate, the public interest is served by the resolution of the British Columbia charges. I am therefore prepared to accede to the joint submission in this case.

[82] The Court in Gunaratnam imposed a conditional sentence of 2 years less a day.

R. v. S.E., 2023 ONSC 6259.

[83] The 58-year old accused plead guilty to sexual assault after the trial commenced, but prior to the victim testifying. The victim was 14-16 at the time of the offences, and the accused was in a position of trust. The offences took place almost 30 years earlier, and included full sexual intercourse on multiple occasions. The Crown and defence both submitted that a sentence of 2 years less one day was appropriate, but the defence sought a conditional sentence.

[84] The Court considered a number of factors in determining that exceptional circumstances existed that would make a conditional sentence a proportionate sentence. These included the following:

i. The offender had himself been sexually abused as a child and although it had been reported, no charges were ever laid;

ii. Following his own sexual abuse, the accused had struggled with addiction and mental health issues for a long time;

iii. The accused then engaged in treatment and counseling for his addiction and mental health issues, and continued to engage in same after charged;

iv. Medical evidence supported a finding that a sentence in custody would result in significant mental decline to the accused, and would detract from his rehabilitation; and

v. The accused plead guilty and demonstrated sincere remorse.

[85] On this latter issue, the Court indicated that the Crown disclosure contained “Facebook messages between the offender and the victim in which he expresses sincere remorse and accepts responsibility. He tells the victim that he has changed. In these messages, he encourages the victim not to carry guilt or shame, and that it is his to carry, not hers. These messages were sent prior to the investigation and his arrest. This, accordingly, corroborates that S.E. has been demonstrating genuine remorse for some time, and has been accepting responsibility for, and appreciates the wrongfulness of, his actions.” [9]

R. v. L.F., 2024 ONSC 3307.

[86] The 75-year old accused plead guilty to sexually touching four females and to physically assaulting one male, all of whom were students in the accused’s grade 3 or 4 classes. The sexual offences took place approximately 40 years ago and the physical assault took place 30 years ago.

[87] The Court acknowledged that a conditional sentence should be rare in cases involving sexual violence of children, and then addressed why such a sentence was appropriate in this case. The Court relied upon the following:

i. While the Crown did not join the defence in proposing a conditional sentence, the Crown was not strongly opposed to same;

ii. The accused is 75 years of age and has no criminal record;

iii. The accused has been shamed in the community and lost friends as a result of his actions; and

iv. The accused plead guilty.

[88] As it pertains the guilty plea, the Court stated as follows:

21 Third, L.F.'s guilty plea and his acceptance of responsibility for the alleged offences is a significant mitigating factor. Offences that took place 40 years ago are notoriously difficult to prove beyond a reasonable doubt. Historical offences that depend on recollections of events that occurred long ago and at a time when the victims were young children are particularly difficult to make out to the reasonable doubt standard. There is a straightforward reason for this. Human memory is frail. It fades over time. The Court is always alive to "the inherent frailties attaching to evidence that attempts to reconstruct distant events through the prism of memory that may be coloured or distorted by the erosive impact of time and life experience."

22 L.F.'s plea was offered in spite of the inherent difficulties in the Crown's case. It brought certainty to the outcome and justice for the victims of his offences. And it did so in a way that avoided any of the victims having to testify about traumatic events from their past, either at a preliminary hearing or at trial.

[89] A number of the cases above made reference to the Ontario Court of Appeal’s decision in R. v. M.M., 2022 ONCA 441. In M.M., the trial Judge imposed a conditional sentence following convictions for possessing and making child pornography. The Court in M.M. held that:

15 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.

16 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. (emphasis added)

[90] In M.M., the Ontario Court of Appeal held that the trial Judge had erred in imposing a conditional sentence, but that as the accused had served the majority of his conditional sentence, the accused was not ordered to go into custody.

[91] There are a number of common themes in the cases above wherein the Courts could then find that a conditional sentence was a proportionate sentence. Those include:

i. medical issues that cannot easily be addressed in custody;

ii. joint submissions;

iii. guilty pleas, insight, and/or genuine remorse; and

iv. mitigating features of the accused’s life such as addictions, mental health, or prior trauma.

[92] None of these factors exist in the case before me.

[93] I find that there are no exceptional circumstances in Mr. Ifill’s case that would justify a conditional sentence. I find that a conditional sentence would be disproportionate when I consider the relevant sentencing principles in this matter, and when I consider the aggravating factors of this case.

[94] Mr. Addelman submitted that to sentence Mr. Ifill to custody thirty years after the offence would send the wrong message. I respectfully disagree. I find that it will send exactly the message that is endorsed in Friesen – that sentences for sexual offences against children must increase. It will also send the message that simply because an offender may not be charged and held accountable for their actions for years, or even decades, is not going to result in a lesser sentence absent exceptional circumstances. General deterrence and denunciation demand a proportionate sentence, and in the case before me, that is a sentence of actual custody.

[95] I turn now to what that the sentence should be.

[96] Ms. Bobrovitz filed a number of cases for my review in this matter. These include the following: R. v. E.T., 2011 ONCA 86; R. v. Bachewich, 2007 ABCA 229; R. v. R.P., 2006 ONCA 649; R. v. Barua, 2014 ONCA 34; R. v. D.L., 2018 ONSC 3409; R. v. T.J., 2021 ONCA 392; R. v. Lloyd (unreported: February 18, 2021; O.C.J.).

[97] All but the last two of these cases were decided prior to Friesen. Sentences ranged in those cases between 6 months and 3 years. I will not address the similarities and distinctions of these cases, indicating only that the number of incidents, whether the offence was committed one time only or over a period of time, the age of the victim, and whether the accused was in a position of trust were each factors that were carefully considered by the Judge.

[98] In both T.J. and Lloyd, those cases which post-date Friesen, there was one incident of sexual touching. The victim in T.J. was 6 or 7 years old. The victim in Lloyd was 10 years old. The accused in each of those matters was found to be in a position of trust towards the victims.

[99] In T.J., the trial judge imposed a sentence of 9 months custody and the Ontario Court of Appeal increased this sentence to one of 2 years. The Court stated that:

[46] The respondent's behaviour was inherently wrongful. He abused his position of trust over a young child. His conduct included not only sexual touching but an invitation that C.M. perform fellatio. It was highly morally blameworthy. His conduct was violent, exploitative, and harmful to C.M. and her family.

[100] In Lloyd, the accused touched the victim’s vagina under her clothes while they were sleeping next to each other in a tent. The victim’s sister was asleep beside her, and the victim moved away from the accused and cuddled up to her sister.

[101] I find that the Lloyd case is the most helpful case in setting a range of sentence for the matter before me. The victims in each case are of similar ages. The nature of the touchings and the circumstances of the touching are similar – touching the vaginal area of the child under their clothing while sleeping.

[102] There are also some distinctions. In Lloyd the accused was clearly in a position of trust towards the victim, and Mr. Ifill was not in a similar position of trust towards Ms. G..

[103] In Lloyd however, there was only one incident, and in the case before me there were two incidents of sexual touching, plus a communication by Mr. Ifill to Ms. G. that he wanted to do this a third time. As indicated above, this continued conduct demonstrates a complete lack of insight by Mr. Ifill.

Conclusion

[104] In R. v. Hamilton, [2004] O.J. No. 3252 (C.A.), Doherty, J.A. stated that, “[t]he imposition of a fit sentence can be as difficult a task as any faced by a trial judge.”

[105] The responsibility of imposing sentence is indeed a daunting one, and a very important one. I have a responsibility to Mr. Ifill, the man who appears before me today for sentence. I also have a responsibility to the community, of which A.G. is a member. I must impose a sentence that is just and fair, and one which can be explained and supported by these reasons.

[106] Deterrence and denunciation are paramount in this case, but as Mr. Ifill is a first-time offender, I must also consider the principle of restraint.

Sentence

[107] I impose a sentence of 16 months in custody, to be followed by 2 years of probation.

[108] In addition to the statutory conditions, the conditions of the probation order are as follows:

(1) Report in person to a probation officer as directed by your probation officer or any person authorized by your probation officer to assist in your supervision.

(2) Cooperate with your probation officer. You must sign any releases necessary to permit the probation officer to monitor your compliance and you must provide proof of compliance with any condition of this order to your probation officer on request.

(3) Live at a residence approved of by the probation officer and do not change that address without obtaining the consent of the probation officer in advance.

(4) Do not contact or communicate in any way, either directly or indirectly, by any physical, electronic or other means, with A.G., M.G., T.M., or any member of their families and stay 300 metres away from them, or any place of residence, employment, or education, as known to you.

(5) Attend and actively participate in all assessment, counselling and rehabilitative programs as directed by the probation officer, and complete them to the satisfaction of the probation officer, including, but not limited to: sexual offending against a child. [10]

(6) You shall sign any release of information forms as will enable your probation officer to monitor your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

(7) You shall provide proof of your attendance and completion of any assessments, counselling or rehabilitative programs as directed.

(8) Do not possess any weapon(s) as defined by the Criminal Code (for example: a BB gun, pellet gun, firearm, imitation firearm, cross-bow, prohibited or restricted weapon or device, ammunition or explosive substance or anything designed to be used or intended for use to cause death or injury or to threaten or intimidate any person)

[109] I make an order for Mr. Ifill to provide a sample of his DNA, pursuant to s. 487.051 of the Criminal Code.

[110] Pursuant to s. 109 of the Criminal Code, I am prohibiting Mr. Ifill from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition, or explosive substance, for a period of 10 years.

[111] Pursuant to section 737(1) of the Criminal Code, Mr. Ifill is ordered to pay $200 in Victim Fine Surcharges. I will grant him 12 months to pay.

[112] Mr. Ifill will be noted as a person convicted of a SOIRA-designated offence pursuant to s. 490.012 of the Criminal Code, and this will be for a duration of 20 years as set out in s. 490.13(2)(b) of the Criminal Code.

[113] Pursuant to s. 743.21 of the Criminal Code, I am prohibiting Mr. Ifill from having any contact or communication, directly or indirectly, with A.G., M.G., or T.M. while Mr. Ifill is in custody.

[114] Pursuant to section 161(1) of the Criminal Code, for a period of 10 years, Mr. Ifill is prohibited from:

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

(a.1) being within two kilometres, or any other distance specified in the order, of any dwelling-house where A.G. or any member of her family ordinarily resides, works or goes to school;

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

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

[115] I thank both Mr. Addelman and Ms. Bobrovitz for their very able assistance in this matter.

Released: August 12, 2024 Signed: Justice Kimberly E.M. Moore

[1] Paragraph 1.

[2] Section 742.1 (a) of the Criminal Code.

[3] Paragraph 88.

[4] Paragraph 36.

[5] Paragraph 17

[6] Paragraph 136

[7] The Court found the accused not guilty of sexual interference as the Court was not satisfied that the touching was for a sexual purpose.

[8] Paragraph 74.

[9] Paragraph 58.

[10] The Pre-Sentence Report in this matter recommended counselling for sexual relationships, healthy boundaries and consent. With respect, those would be areas that might be addressed in certain cases where the victim of the offence was an adult. In the case before me, Mr. Ifill sexually assaulted an 11-year old child. Thus, those areas are not applicable or relevant to Mr. Ifill’s offending behaviour.